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Official Citation: 2024 SCMR 51
Court / Jurisdiction: Lahore High Court
Year of Decision: 2023
Decision Date: 2023-12-31
Parties: Aamir Khan and others vs The State etc
Ruling Summary: This decision was rendered by the Lahore High Court on 2023-12-31, officially reported as 2024 SCMR 51. In this matter between Aamir Khan and others and The State etc, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2024 SCMR 51
Court Name: Lahore High Court Judge(s): Sadaqat Ali Khan, Ch. Abdul Aziz Title: Aamir Khan and others vs The State etc Case No.:Criminal Appeal No.986 of 2022, Criminal Appeal No.988 of 2022, Criminal
JUDGMENT
Reported As: 2024 LHC 2388, 2024 YLR 2272, PLJ 2024 Cr.C. 996 Result: Appeal Allowed Judgment JUDGMENT Ch. Abdul Aziz, J. Aamir Khan (appellant) along with his two co-accused namely Amraiz Khan and Afsar Khan was booked in case F.I.R No.379/2021 dated 10.05.2021 registered under Sections 302, 109 & 34 P.P.C. at Police Station Cantt. District, Rawalpindi. During trial learned Additional Sessions Judge, Rawalpind vide judgment dated 15.12.2022 while acquitting others proceeded to convict and sentence Aamir Khan (appellant) in the following terms:- (i).Under Section 302 (b) PPC to suffer death sentence as ta'zir with the direction to pay Rs. 500,000/- as compensation to the legal heirs of deceased under section 544-A Cr.P.C. In default of payment of compensation to further undergo six months S.I. Challenging his conviction and sentence, Aamir Khan (appellant) filed Criminal Appeal No.986 of 2022, whereas Naeem Khan (complainant) preferred Criminal Appeal No.988 of 2022 against the acquittal of Amraiz Khan and Afsar Khan (respondents No.1 and 2) and Criminal Revision No.137 of 2023 seeking enhancement of amount of compensation to be paid by Aamir Khan (respondent No.1). Likewise, trial court sent reference which was numbered as Murder Reference No.77 of 2022 for the confirmation or otherwise of death sentence awarded to convict, namely Aamir Khan. Since all these matters are inter se connected, hence are being decided through this single judgment. 2. Succinctly stated the case of the prosecution as unveiled by Naeem Khan (complainant/PW.8) in F.I.R (Exh.PA) is to the effect that on 10.05.2021 he along with his brothers namely Waseem Khan (deceased), Ahmad Khan and one Zahid Ali went to Tehzeb Bakers Saddar, Rawalpindi; that at about 08:15 p.m., when they were standing at roadside in front of Ceros Cinema, Aamir Khan (appellant) armed with pistol and Bilal Khan empty handed came there while boarding a
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motorcycle; Bilal Khan exhorted his brother Aamir Khan to kill Waseem Khan for deserting their sister Sania Bibi; that Aamir Khan made successive fire shots with his pistol which hit on left bicep, left armpit, left shin and on the right shoulder of Waseem Khan; that Waseem Khan fell down after receiving fire shots; that after the commission of crime accused persons made good their escape; that Naeem Khan (complainant) along with Ahmad Khan and Zahid Ali witnessed the occurrence in the light of bulbs; that Waseem Khan was shifted to hospital who succumbed to his injuries there. The motive behind the occurrence was that the daughter of accused Amraiz namely Sania was married with Waseem Khan (deceased). Sania being annoyed with Waseem Khan left the house about 1 1/2 months prior to the incident. Amraiz Khan and Afsar Khan bore grudge of desertion of Sania thus they hatched a conspiracy to murder Waseem Khan with the help of Aamir Khan and Bilal Khan. 3. The case was investigated by Muhammad Riaz S.I. (PW-11). On 10.05.2021 after the receipt of information regarding the incident he reached the DHQ Hospital Rawalpindi along with Safdar Mehmood/HC, Absaar/HC and Muhammad Ramzan constable, where Naeem Khan (complainant/PW.8) presented him written application (Exh.PP) and the same was sent to police station through Muhammad Ramzan/C for the registration of formal F.I.R. He drafted injury statement (Exh.PC) as well as inquest report (Exh.PD), and handed over the dead body to Safdar Hussain constable for autopsy. Thereafter, he along with complainant and eye witnesses visited the place of occurrence, prepared rough site plan (Exh.PW) and during spot inspection he secured blood through cotton vide memo (Exh.PQ). He also collected seven empties of pistol .30 bore (P5/1- 7) through recovery memo (Exh.PR). The I.O. also took into possession energy savor P-6 vide recovery memos (Exh.PS) and recorded the statements of witnesses under section 161 Cr.P.C. Thereafter the investigating officer along with complainant and witnesses reached DHQ Hospital, Rawalpindi took into possession the last worn clothes of deceased i.e. blue colored shirt, trouser, drawstring and T-Shirt (P-1 to P-4) vide recovery memo Ex.PE. The investigating officer handed over the dead body to complainant and after completing the formalities at DHQ, Hospital, he went back to police station and entrusted the case property to the Moharrar Malkhana. On 18.05.2021 the investigating officer collected the sample parcel of the empties along with blood stained clothes of the deceased and deposited them in the office of PFSA. On 19.05.2021, he called the draftsman and got prepared scaled site plan (Ex.PF). On 29.05.2021, investigating officer obtained proclamations of accused persons and handed them over to Absar Hussain/HC for execution. On 29.06.2021 Muhammad Riaz S.I.(PW.11) prepared incomplete challan under section 512 Cr.P.C. and submitted in the Court. On 30.06.2021, Amraiz Khan and Afsar Khan (accused) got pre-arrest bail from the Court and they joined the investigation. On 08.07.2021 Aamir Khan (appellant) was arrested by Muhammad Faisal T/ASI from Metro Station Marrir Hassan Chowk. The investigating officer interrogated Aamir Khan (appellant) and got his physical remand from the court of learned Area Magistrate. On 16.07.2021 Aamir Khan (appellant) during investigation made disclosure and in consequence thereof got recovered pistol (P-7) along with two live bullets (P-8/1-2) which were taken into possession through recovery memo Exh.PU. After complying legal formalities and recording the statements of relevant witnesses under Section 161 Cr.P.C., report under Section 173 Cr.P.C. was prepared through concerned SHO. 4. Prosecution in order to prove its case against the appellant produced 12-witnesses whereas Muhammad Faizan (CTWO) and Sheraz Aslam were examined as CW-1 and CW.2. During trial Dr. Muhammad Junaid CMO (PW.3) furnished medical evidence with the claim of having performed autopsy through through postmortem examination report (Exh.PB), Naeem Khan (PW.8) and Zahid Ali (PW.9) narrated the ocular account whereas Muhammad Riaz S.I. (PW.11) conducted investigation. The remaining PWs, more or less, were formal in nature.
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5. After the conclusion of prosecution evidence, the learned trial court also examined the appellant under section 342, Cr.P.C. during which various questions were asked arising out of the prosecution evidence but he denied almost all such questions while pleading his innocence and false involvement in the case. Appellant did not make statement under section 340 (2) of Cr.P.C, however, in his defence produced copy of FIR No.216/2021 as Ex.DB and copy of FIR No.692/2021 as Exh.DC. 6. Learned counsel for the appellant contends that the prosecution failed to prove its case against the appellant beyond reasonable doubt; that the prosecution evidence has been disbelieved to the extent of acquitted co-accused thus the superstructure of conviction cannot be raised on the same set of evidence against the appellant; that both the eye witnesses are closely related to the deceased and otherwise miserably failed to prove their presence at the spot; that the recovery of weapon statedly effected from the appellant is also not believable due to various flaws; that in the given circumstances the conviction awarded to the appellant is to be set aside. 7. On the other hand learned Law Officer assisted by learned counsel for the complainant argued that the case in hand is arising out of a promptly lodged FIR in which the appellant is specifically named as the main accused who inflicted fire shots injuries to the deceased; that the appellant was previously known to the eyewitnesses thus there was no chance of mistaken identity; that the corroboration, if any, can well be sought from the duly proved motive and recovery of weapon effected from the appellant and that since the prosecution successfully proved its case against the appellant to the hilt hence the conviction awarded to him calls for no interference. 8. Arguments heard. Record perused. 9. A wade through the record reveals that on the night of 10.05.2021, Waseem Khan along with Ahmed Khan, Zahid Ali and Naeem Khan was standing on the road adjacent to Tehzeb Backers. In the meanwhile at about 8:15 p.m. Aamir Khan emerged on the scene while riding a motorcycle driven by Bilal Khan. After reaching the spot, Aamir Khan alighted from the motorcycle and fired successive pistol shots at Waseem Khan which hit at various locales of his body. After the receipt of these bullet injuries Waseem Khan fell on the ground whereas both the assailants decamped therefrom while boarding their motorcycle. Waseem Khan took his last breath while being shifted to DHQ hospital by the witnesses. Before proceeding further, it appears to be in fitness of things to mention here that three persons namely Aamir Khan, Bilal and Amraiz were indicted in the case out of whom the latter two were acquitted by the trial court whereas Aamir Khan was handed down guilty verdict. 10. The murder incident took place at about 8:15 p.m. and it was reported to police through written application (Ex.P.P) moved in DHQ Hospital around 11:00 p.m. The complaint (Ex.P.P) was later dispatched to police station Cantt through Muhammad Ramzan 4529/C for the registration of formal FIR (Ex.P.A). In every case of homicide the afflux of time which is consumed in the registration of FIR has its own importance. The promptly registered FIR is generally considered a ground favourable to the prosecution as it normally excludes the possibility of concoction and besides that gives clue about the acclaimed presence of eyewitnesses at the spot. On the other hand, some unexplained delay reflects adversely upon the case of prosecution and gives rise to the hypothesis about possible absence of witnesses from the crime scene and at the same time ignites theories of some fabrication and padding of facts. In the instant case, it is noticed by us that the incident took place at about 8:15 p.m. and though police station Cantt was situated at a distance which could be covered within two minutes of walk, as is evident from column No.4 of Ex.P.A, but still the FIR was registered with delay of three hours and ten minutes. Surprisingly, instead of transmitting the information of crime to police immediately after the occurrence, the needful was done in DHQ Hospital for which no explanation is offered. The murder incident was witnessed by three persons namely Naeem Khan, Zahid Ali and
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Ahmed Khan out of whom none was illiterate but even then the complaint (Ex.P.P) was got written from a stranger in the DHQ Hospital. In this regard, we feel pressing need to reproduce hereunder an extract from the cross-examination of Naeem Khan (PW.8) which is as under:- " Complaint Ex.P.P was got written by me in the Hospital outside the mortuary from some unknown person. I did not ask the name and other particulars of the person who wrote the complaint Ex.P.P." The stance of the eyewitnesses to have got written complaint (Ex.P.P) from a person with whom they had no previous acquittance, sounds no logic. The complainant Naeem Khan (PW.8) himself was a student and the question of pivotal importance arises that why he posed immense confidence in a stranger for drafting of a document which was going to be the foundations stone of a case pertaining to the murder of his own brother. The absence of any answer of this query gives rise to the possibility that the application (Ex.P.P) might have been drafted by a fertile legal mind. We also took note of the fact that Muhammad Ramzan 4529/C who transmitted the complaint (Ex.P.P) from DHQ Hospital to Cantt Police Station was also not produced before the trial court as witness. For all practical purposes the evidence of Muhammad Ramzan 4529/C had its own importance and due to his non-appearance, the element of dispatching the complaint from DHQ Hospital to Police Station Cantt remained unproved. The importance of such omission can be highlighted from the observation of the Supreme Court of Pakistan in the case reported as Minhaj Khan v. The State (2019 SCMR 326) which is as under:- ".......the non-production of Constable Jehanzeb Khan who took the written complaint and was an eye-witness of the occurrence and of the recovery memorandums; and the inexplicable conduct of the Complainant PW-2 in not proceeding to the police station himself to register the FIR are matters of concern and collectively of incredulity. The conclusion therefrom that we draw is that the prosecution had failed to establish its case against the petitioner beyond reasonable doubt, or, at worst, that the petitioner was involved in a false case for ulterior reasons." Lastly, it is noticed by us that though the complaint (Ex.P.P) was statedly complete in every respect till 11:00 p.m. but still the police papers were provided to Dr.Muhammad Junaid (PW.3) at about 1:20 a.m. The question arises that if at all complaint (Ex.P.P) had been prepared before 11:00 p.m. while standing in the DHQ Hospital then why the police papers were provided to the Medical Officer even two hours thereafter. The solitary legitimate inference which can be drawn from the preceding facts is to the effect that indeed the complaint (Ex.P.P) was drafted much after the canvassed time and above all during this intervening period the attendance of eyewitnesses, who otherwise were not present at the crime scene, was procured. The Supreme Court of Pakistan in case titled as "Muhammad Rafique alias Feeqa vs. The State" (2019 SCMR 1068) while dilating upon the delayed submissions of police papers to the Medical Officer observed as under:- "It is usually the delay in the preparation of these police reports, which are required to be handed over to the medical officer along with the dead body, that result in the consequential delay of the post mortem examination of the dead person. To repel any adverse inference for such delay, the prosecution has to provide justifiable reasons therefor, which in the present case is strikingly wanting." In another case titled as "Irshad Ahmed vs. The State" (2011 SCMR 1190), the Apex Court observed as under:- "We have further observed that the post-mortem examination of the deadbody of Shehzad Ahmed deceased had been conducted with a noticeable delay and such delay is generally suggestive of a real possibility that time had been consumed by the police in procuring and planting eye- witnesses and in cooking up a story for the prosecution before preparing police papers necessary for getting a post-mortem examination of the deadbody conducted." 11. The ocular account has its own importance in any murder case and the fate of the case mainly hinges upon its credibility. The presence of an eyewitness at the spot is not to be presumed rather
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is to be proved satisfactorily by the prosecution during trial. For ascertaining the truth behind the claim of an eyewitness about his acclaimed presence, the court has to examine his evidence with best possible circumspection. It is a fallacious approach to follow blindly the notion that a murder occurrence having taken place at a thickly populated place cannot go un-noticed thus the narrators of such ocular account ought to be believed. Often a false witness after being properly tutored successfully overcomes the test of cross examination but still the courts must not let the ends of justice be defeated and instead such depositions, before acceptance, be put to the test of strict scrutiny. If such a witness gives evasive replies to material questions or express ignorance regarding them, the testimony of such a witness is to be looked with suspicion and be discarded in accordance with doctrine of abundant caution. If any reference is needed that can be made to the case reported as " Abdul Haq and others vs. The State" (2020 SCMR 116), wherein the Supreme Court of Pakistan observed as under:- " ... he also admitted his acquittance with Abdul Haq petitioner, his co-villager while evasively avoiding a query regarding pendency of different civil and criminal cases instituted by Abdul Ghani petitioner against him as well as his brother. Similarly, in his examination-in-chief, the abductee did not name Muhammad Yousaf petitioner as being one of the culprits; while denying litigation between the two families, he however, admitted that both the petitioners, real brothers inter se, lived in the same neighbourhood. In this backdrop, no importance can be attached to the identification parade, conducted under magisterial supervision. In the totality of circumstances, the prosecution case is not free from doubt, doubts deducible from stated prosecution positions, otherwise inherently improbable." 12. In the instant case, the tale of homicide incident was brought on record by Naeem Khan and Zahid Ali (PWs.8 and 9). Out of these witnesses, the former was brother of the deceased whereas the latter was his cousin as well as brother-in-law. From in-depth analysis of their deposition, we came across multiple aspects strongly reflecting upon their absence from the crime scene. Firstly, it is noticed that the incident occurred at a place which was situated just two furlongs (1300 feet) away from police station Cantt. Though such a short distance could be covered within no time but surprisingly neither Naeem Khan and Zahid Ali (PWs.8 and 9) nor Ahmed Khan (given up PW) made any effort to report the matter to police. Besides that, it is noticed that Naeem Khan (PW.8) was having mobile phone No.03089142500 in his possession, as is evident from column No.2 of FIR (Ex.P.A), but he made no call from it either to the police station Cantt or to Rescue-15. The assailants were boarded on a motorcycle thus it was quite natural for the witnesses to intimate the police about the occurrence for taking immediate steps towards apprehending the assassins. Secondly, it is found divulging from the record that the incident occurred at 8:15 p.m. on a road situated in the heart of Rawalpindi city which remains thronged by the motorists and pedestrian. It is equally important to mention here that the place of incident is surrounded by commercial buildings which were jam-packed with customers due to 27th of Ramzan. In this backdrop, we took exception of the fact that Waseem Khan (victim) remained laying on the roadside for about 45 minutes and as per admitted facts was removed therefrom at 9:00 p.m. Naeem Khan (PW.8) candidly conceded during cross-examination that he made no effort for immediate shifting of Waseem Khan to hospital as is evident from the following excerpts of his cross-examination: - " I did not try to administer water or any other thing to my brother after he received injury. I did not make any effort to shift my brother in injured condition to the hospital through any rickshaw, taxi or any other private vehicle." From the deposition of Zahid Ali (PW.9) similar picture is depicted and he also admitted in unequivocal terms that no steps were taken for shifting Waseem Khan (then injured) to hospital. The aforementioned conduct of the two witnesses without speck of any ambiguity is jaw dropping and does not commensurate with the normal human response which a close relative is required to
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demonstrate in the situation like this. In all circumstances one is expected to make even the last- ditch effort for shifting his close relative to a medical facility having met such tragic incident. Both the eyewitnesses were closely related to the victim of murderous assault and it sounds strange that they let Waseem Khan (deceased) perish without making any efforts to save his life. Indeed such conduct gives vent to the defence version that none of the two eyewitnesses was in attendance by the time Waseem Khan was beset by the assassins. No explanation in this regard was found stemming from record nor was offered during arguments by the prosecution. The Supreme Court of Pakistan in case titled as "Pathan vs. The State" (2015 SCMR 315) while dilating upon the unnatural human conduct of the eyewitness observed as under:- "The presence of witnesses on the crime spot due to their unnatural conduct has become highly doubtful, therefore, no explicit reliance can be placed on their testimony. They had only given photogenic/photographic narration of the occurrence but did nothing nor took a single step to rescue the deceased. The causing of that much of stab wounds on the deceased loudly speaks that if these three witnesses were present on the spot, being close blood relatives including the son, they would have definitely intervened, preventing the accused from causing further damage to the deceased rather strong presumption operates that the deceased was done to death in a merciless manner by the culprit when he was at the mercy of the latter and no one was there for his rescue." Thirdly, it is observed that in the crime report (Ex.P.A) nothing as such was mentioned as to how the victim was shifted to DHQ Hospital though it is found discerning therefrom that Waseem Khan died on way to hospital. During trial, the PWs came forward with the stance that the needful of shifting Waseem Khan to DHQ Hospital was done in an ambulance of Rescue-1122. Both the eyewitnesses admitted in clear terms that the ambulance of Rescue-1122 reached the spot but not on their phone call. The question arises that if at all the eyewitnesses were in the company of deceased while having mobile phones in their possession then why they resorted to such indifferent attitude even after having seen Waseem Khan (deceased), a person from the common bloodline while taking last breath within their view. The obvious answer of aforementioned question negates the presence of witnesses from the spot. The things get more complexed for the prosecution when seen in the context that none of the eyewitness boarded ambulance of 1122 when Waseem Khan was being shifted to hospital, statedly in injured condition. Instead all the three eyewitnesses hired a taxi car for reaching the hospital. Fourthly, it is noticed that though both the witnesses claimed about the appellant to have reached and decamped from the spot while boarding a motorcycle but provided no description of it like make, model, colour, registration number in their police statement as can be noticed from the following portion of Naeem Khan's (PW.8) cross-examination:- " It is correct that I did not mention the model, make, colour and registration number of the motorcycle on which the accused persons came at the spot." 13. We have also took exception that both the eyewitnesses during cross-examination deliberately avoided to reply the questions pertaining to material facts by giving evasive answers and expressing ignorance about their existence. Complainant Naeem Khan (PW.8) could not tell the inter se distance between place of occurrence and his house as well as of the house of Zahid Ali (PW.9). Naeem Khan (PW.8) also could not tell the time of Iftar and the time of his departure from the house. Similarly, both the eyewitnesses namely Naeem Khan and Zahid Ali (PWs.8 and 9) despite being questioned could not tell the time when the ambulance of Rescue-1122 reached the spot. For the clarity of our observation relevant extracts from the cross-examination of both the witnesses are being referred hereunder:- Naeem Khan (PW.8) "I do not know who informed 1122. I do not remember the exact time when 1122 reached at the spot however they came with a short span of time. I could not even tell whether 1122 came at the spot
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within 5 minutes, 10 minutes or half an hour." Zahid Ali (PW.9) " I do not remember the exact or approximate time for how long we waited for Rescue 1122 at the spot. It is incorrect to suggest that as I was not present at the spot that is why I could not tell this time. I do not remember the time when Rescue 1122 reached at the spot. I did not mention in my statement under section 161 Cr.P.C that the deceased was shifted to hospital by rescue 1122." Even the stance of both the PWs who have managed the shifting of Waseem Khan to DHQ Hospital in their presence was strongly negated from the record. In fact, Muhammad Faizan and Sheraz Aslam (CWs.1 and 2) appeared in the court along with record comprising upon Emergency Call Form No.12607 (Ex.CW-2/1-2) and Emergency Response Form (Ex.CW-3) and stated that the ambulance of Rescue 1122 reached the spot in pursuance of a phone call of Bilal having mobile phone No.03095530658 and shifted Waseem Khan to DHQ Hospital. Neither the aforementioned Bilal whose name is referred in Ex.CW-2 appeared in the dock during trial nor the veil was lifted from his identity. The…
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