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Petitioner: MUHAMMAD SALEEM alias CHHEMU VS Respondent: The STATE
Court Name: Lahore High Court Judge(s): Malik Shahzad Ahmad Khan, Manzoor Ahmad Malik Title: MUHAMMAD SALEEM alias CHHEMU vs The STATE Case No.: Criminal Appeal No.875 and Murder Reference No.170 of 2008 Date of Judgment:2013-03-07 Reported As: 2013 YLR 1456 Result: Appeal accepted
JUDGMENT
JUDGMENT ' MALIK SHAHZAD AHMAD KHAN, J.---This judgment shall dispose of Criminal Appeal No. 875 of 2008 filed by Muhammad Saleem alias Chhemu appellant against his conviction and sentence and Murder Reference No. 170 of 2008, sent by the learned trial Court, for confirmation or otherwise, of the sentence of death awarded to Muhammad Saleem alias Chhemu appellant, as both these matters have stem out of the same judgment dated 22-8-2008, rendered by the learned Additional Sessions Judge, Lahore , in case F.I.R. No. 1/97 dated 1-1-1997, registered under sections 302/324/148/149/109, P.P.C. At Police Station Chung, District Lahore, whereby, Muhammad Saleem alias Chhemu, appellant was convicted under section 302(b) of Pakistan Penal Code for committing the murder of Khalid Mehmood (deceased) and sentenced to death with a direction to pay the compensation amount of Rs.1,00,000 (Rupees one hundred thousand only) to the legal heirs of deceased as envisaged under section 544-A, Cr.P.C. And in default, thereof, to suffer imprisonment for six months' S.I. However, through the same judgment, the learned trial Court has acquitted Ameer Ali, Muhammad Mansha alias Budha, Ijaz alias Jajji, Sharafat Ali, Pervaiz Ahmad, Liaqat Ali, Muhammad Anwar son of Ali Muhammad, Muhammad Anwar son of Dil Muhammad, Farmaish Ali, Asghar Ali and Farman Ali, co-accused, while giving benefit of doubt to them. 2. Brief facts of the case, as disclosed by Muhammad Ayyub complainant (P.W.2) in his 'Fard Bayan' Exh.PB, on the basis whereof, formal F.I.R. (Exh.PB/1) was recorded, are that he (complainant) was resident of Shahpur, Lahore and was agriculturist by profession. On 1-1-1997 at 10-30 a.m., he (complainant) along with his brother Khalid Mehmood (deceased), Muhammad Ashraf (given up P.W.) and Muhammad Hanif (P.W.11) went to Abpara scheme to visit their agricultural land by a 'Tonga' driven by Haji Muhammad Din alias Soni (P.W.9). Adjacent to that land, sugarcane crop of
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Haji Sultan was present. In the said field, Abdur Rehman was reaping sugarcane crop, Khalid Mehmood (deceased) went to him for taking some sugarcane while the complainant along with Muhammad Ashraf (given up P.W.) and Muhammad Hanif (P.W.11) started moving towards their agricultural land. Meanwhile, the accused, namely Saleem alias Chhemu (appellant) armed with .222 bore rifle, Sharafat armed with .44 bore rifle, Muhammad Mansha armed with .12 bore gun, Liaqat armed with .12 bore gun, Ijaz alias Jajji armed with .12 bore repeater, Ameer Ali armed with Kalashnikov came there by a tractor, whereas, the accused Muhammad Anwar armed with .12 bore gun and Pervaiz Ahmad armed with .12 bore gun came over there by a motorcycle. Sharafat Ali accused (since acquitted) raised lalkara to Pervaiz Ahmad accused (since acquitted) and Saleem alias Chhemu (appellant) that Khalid Mehmood (deceased), had murdered his brother hence, he should not be spared, whereupon, Sharafat, Pervaiz Ahmad and Saleem alias Chhemu, accused persons made straight firing. The fire shot made by Saleem alias Chhemu (appellant) hit Khalid Mehmood (deceased) on the left side of chest who fell down with his face downwards. In that position, Pervaiz Ahmad accused (since acquitted) made a fire a shot which landed on the back of Khalid Mehmood (deceased). The other accused persons namely, Muhammad Mansha, Liaqat Ali, Ijaz alias Jajji, Ameer Ali and Muhammad Anwar, thereafter, made indiscriminate firing. Resultantly, Abdur Rehman also sustained injury due to the firing of accused persons. On raising hue and cry by the P.Ws. The accused persons managed to escape from the spot. Khalid Mehmood (deceased) and Abdur Rehman injured were taken to Jinnah Hospital where Khalid Mehmood succumbed to the injuries. ' The motive behind the occurrence, as alleged in the F.I.R. Was that the complainant party had already enmity of murders with Sharafat accused (since acquitted). The accused persons in connivance and conspiracy of other accused persons, namely Asghar Ali, Farman Ali, Muhammad Anwar and Farmaish Ali, committed the murder of Khalid Mehmood (deceased) and said conspiracy was hatched in the 'baithak' of Asghar Ali accused. 3. The appellant Muhammad Saleem alias Chhemu along with six other co-accuseds, namely, Pervaiz, Mansha, Farmaish, Farman, Liaqat and Ameer Ali, was arrested on 22-1-1997 by Waqar Ahmad, Inspector (P.W.16). On 28-1-1997, Muhammad Saleem alias Chhemu (appellant) while in police custody, after making disclosure, got recovered .222 rifle (P-5) from the room of his residential house, which was taken into possession vide recovery memo Exh.PH. After completion of investigation, the challan was prepared and submitted before the learned trial Court. The learned trial Court, after observing legal formalities, as provided under the Code of Criminal Procedure, 1898 framed charge against the appellant and his co-accused, to which they pleaded not guilty and claimed trial. 4. In order to prove its case, the prosecution produced sixteen witnesses, during the trial. Muhammad Ayyub, complainant (P.W.2), Haji Muhammad Din alias Sohni (P.W.9) and Muhammad Hanif (P.W.11) are the witnesses of ocular account while Haji Afsar Ali (P.W.3) is the witness of abetment. ' The medical evidence was furnished by Dr. Muhammad Khalid (P.W.7), who on 2-1-1997 at 10-00 a.m. Conducted postmortem examination on the dead body of Khalid Mehmood (deceased), while Dr. Kh. Masood Ahmad (P.W.15), on 1-1-1997 at 11-50 a.m. Conducted medico legal examination of Khalid Mehmood (deceased). ' Waqar Ahmad, Inspector/S.H.O. (p.w.16) is the Investigating Officer of the case while Hamid Ullah (P.W.12) is the witness of recovery of .222-rifle (P-5) at the instance of Muhammad Saleem alias Chhemu appellant. ' Abdul Sattar, A.S.-I. (P.W.1), Muhammad Zafar HC (P.W.4), Manzoor Ahmad HC (P.W.5), Ishtiaq Ahmad Patwari (P.W.6), Sher Ali 1102/C (P.W.8), Abdul Haq 13142/C (P.W.10), Akhtar Maqsood (P.W.13) and Muhammad Aslam, A.S.-I. (P.W.14), are the formal witnesses.
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' The prosecution also produced documentary evidence in the shape, of last worn clothes of the deceased Exh.PA, copy of 'Fard Bayan' Exh.PB, got recorded by Muhammad Ayyub complainant (P.W.2), copy of formal F.I.R. Exh. PB/1, memo of possession of blood-stained shalwar of Khalid Mehmood deceased Exh.PC, copies of scaled site plans of the place of occurrence, Exh. PD and Exh. PD/1 , postmortem report of Khalid Mehmood deceased Exh. PE, pictorial diagrams. Exh. PE/1 and Exh. PE/2, memo of possession of blood-stained earth from the place of occurrence, Exh.PF, memo of possession of four empties of rifle .222 bore P-8/1-4, 20 empties of Kalashnikov P-9/1-20, 3 empties of .44 bore rifle P-10/1-3, a missed bullet of .44-bore rifle P-11 and 31 empties of .12-bore gun P-12/1-31, Exh. PG, recovery memo of .222 bore rifle (P.5) from the possession of the appellant Exh. PH, copy of site plan without scale of the place of recovery of .222 bore rifle (P.5), Exh. PH/1, recovery memo of .12-bore gun (P.6) from the possession of Mansha (acquitted accused) Exh. PJ, copy of site plan without scale of place of recovery of .12-bore gun (P.6) Exh. PJ/1, recovery memo of .12- bore gun (P.7) from the possession of Pervaiz (acquitted accused) Exh. PK, copy of site plan without scale of place of recovery of .12 bore gun (P.7) Exh. PK/1, medico-legal examination report of Khalid Mehmood deceased Exh. PL, copy of death certificate of Khalid Mehmood deceased Exh. PM, medico-legal examination report of Abdur Rehman injured. Exh. PN, inquest report of the deceased Exh. PQ, injury statement of the deceased Exh. PR, copy of application for recording statement of Abdur Rehman injured Exh. PS, copy of site plan of the place of occurrence without scale Exh. PT, report of Forensic Science Laboratory Exh. PU, report of Chemical Examiner Exh.PV, report of Serologist Exh. P.W., and closed its evidence. 5. The statement of the appellant under section 342 of the Code of Criminal Procedure, was recorded on 10-2-2006. He refuted the allegations levelled against him and professed his innocence. While answering to a question that "Why this case against you and why the P. Ws. Deposed against you?" Muhammad Saleem, alias. Chhemu appellant replied as under:- "I am totally innocent in the present case. All the allegations alleged against me are totally false and baseless. 1 was not present at the place of occurrence at the time of occurrence. Muhammad Ayyub, the complainant of this case, along with his companions had murdered Muhammad Arif, cousin (Chachazad Bhai) of my father and my father is the eye-witness of said murder and I and my lather have been falsely implicated in this case just to prevent my father from deposition. At the time of this alleged occurrence, I along with my father Ameer Ali had gone to Ramzan Ali Hospital, Temple Road, Lahore to see Zaheer Abbas and 1 set out in a Bus for Temple Road, Lahore at about 7 a.m. Along with my father and reached Ramzan Ali Hospital at about 8-1/2 and when we reached, Sharafat Ali was also present there and we said to him that as he had remained waking for the whole night, therefore, he might have slept for a while and I along with my father and another person Muhammad Ashraf son of Muhammad Shaft remained sitting with Zaheer Abbas since 8-1/2 a.m. To 12.00 noon and thereafter we came back. I have been falsely implicated in the present case and I have nothing to do with the alleged occurrence." ' Neither the appellant or his co-accused opted to make statements on oath as provided under section 340(2) of the Code of Criminal Procedure, in disproof of the allegations levelled against them, nor they produced any evidence in their defence. 6. The learned trial Court vide judgment dated 26-5-2008, while acquitting co-accused Ameer Ali, Muhammad Mansha alias Budha, Ijaz alias Jajji, Sharafat Ali, Pervaiz Ahmad, Liaqat Ali, Muhammad Anwar son of Ali Muhammad, Muhammad Anwar son of Dil Muhammad, Farmaish Ali, Asghar Ali and Farman Ali found Muhammad Saleem alias Chhemu appellant guilty and convicted and sentenced him as mentioned and detailed above. 7. Learned counsel for the appellant, in support of this appeal, contends that the appellant along with eleven other accused was implicated in this case and all the eleven co-accused of the appellant were acquitted by the learned trial Court but their acquittal has not been challenged any
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more by the complainant or by the State and as such the evidence which has been disbelieved to the extent of acquitted co-accused cannot be believed to the extent of the appellant unless and until there is strong corroboration which is very much lacking in this case; that the motive was specifically alleged against Sharafat Ali co-accused of the appellant who has already been acquitted; that so far recovery of .222 bore rifle (P.5) from the possession of the appellant and positive report of Forensic Science Laboratory is concerned, learned counsel for the appellant contends that the recovery of .222 rifle P.5 cannot be believed as only witness of recovery, Hameed Ullah (P.W.12) is admittedly interested and inimical witness as he was an accused in the murder case of Arif brother of Sharafat Ali co-accused; that moreover, there is no evidence on record as to where the gun remained present after its recovery as Manzoor Ahmad Moharrir who appeared as P.W.5 did not state anything about this rifle and even there is no evidence as to who deposited this rifle in the office of Forensic Science Laboratory though the names of Ghulam Shabbir and Abdul Haq have been mentioned in the report of Forensic Science Laboratory Exh. PU; that said Ghulam Shabbir was given up while Abdul Haq appeared as P.W.10, but he did not state anything regarding the deposit of rifle (P.5); that the ocular account is in conflict with the medical evidence as in the F.I.R. It is the case of the complainant that the appellant along with Sharafat and Pervaiz fired at the deceased and fire shot of the appellant hit the deceased on his chest whereas according to Dr. Muhammad Khalid (P.W.7), who conducted postmortem examination on the dead body of Khalid Mehmood deceased injury on the chest of the deceased was an exit wound but that doctor was not declared hostile; that the complainant when appeared before the learned trial Court changed his version by stating that the fire shot of the appellant hit on the back of the deceased, and he was confronted with his previous statement and his improvement was brought on the record; that firstly Khalid Mehmood deceased was medically examined on 1-1-1997 at 11-50 a.m. By Dr. Kh. Masood Ahmad (P.W.15), who in his MLR (Exh. PL) stated that the injury on the chest of the deceased was an entry wound, therefore, the complainant lodged the F.I.R. In-line with the medical report (Exh. PL) but later on he changed his version and made statement in court, in order to bring his case in line with the postmortem report, according to which the injury on the chest of the deceased was an exit wound; that F.I.R. Was got recorded. On 1-1-1997 at 10-30 a.m. After examination of the injured in the hospital and because the doctor declared injury on the chest of deceased as entry wound, therefore, it was shown as entry wound in the F.I.R. But after the postmortem examination of the deceased, the complainant changed his version but none of the doctor was declared hostile; that the eyewitnesses have made dishonest improvements on material points in their statements and the said improvements were duly 'brought on the record; that the prosecution has miserably failed to prove its case against the appellant beyond the shadow of doubt; thus, this appeal be accepted and the appellant may be acquitted from the charge. 8. On the other hand, learned Deputy Prosecutor-General for the State, assisted by learned counsel for the complainant vehemently opposes this appeal on the grounds that ocular account to the extent of appellant is consistent rather there are two different opinions of the doctors and preference be given to the ocular account and the appellant cannot get any benefit from the acquittal of his co-accused; that so far as acquittal of Pervaiz Ahmad accused is concerned, learned ounsel contends that report of the Forensic Science Laboratory to his extent was negative, whereas the rifle (P-5) which was recovered from the appellant and FSL report of that rifle was positive which is a very strong corroboration against the appellant; that it is clearly mentioned in the report of Forensic Science Laboratory that the empties were received in the office on 8-1-1997, gun was deposited on 27-2-1997 and name of the depositor in these circumstances was immaterial and it was also immaterial as to who took the gun to the office .Of FSL and where the gun remained present after its recovery; that it was a day time occurrence and both the parties were previously known to each other, and specific role has been attributed to the appellant; that
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substitution in such like cases is a rare phenomenon; that there is no mitigating circumstance in this case; that the sentence of death was rightly awarded to the appellant and the same may be maintained, appeal may be dismissed and Murder Reference be answered in the affirmative. 9. We have heard the arguments of learned counsel for the appellant; the learned Deputy Prosecutor-General assisted by the learned counsel for the complainant and have also gone through the record with their able assistance. 10. This unfortunate incident took place on 1-1-1997 at 10-30 a.m. In the fields of one Haji Sultan situated' in Abpara Scheme within the area of Police Station Chung District Lahore. The matter was, reported to the police by Muhammad Ayyub complainant (P.W.2) through his 'Fard Bayan' (Exh. PB), on the basis whereof, the formal F.I.R. (Exh. PB/1) was chalked out on the same day at 1-00 p.m. The facts of the' prosecution case as set forth in the FIR. (Exh. P13/1), have already been narrated in detail in para No.2 of this judgment, therefore, there is no need to repeat the same, however, the gist of the prosecution case as given in the F.I.R. (Exh. PB/1) is that on 1-1-1997 at 10-30 a.m. The complainant Muhammad Ayyub (P.W.2) along with his brother Khalid Mehmood (deceased), Muhammad Ashraf (given up. P.W.) Muhammad Hanif (P.W.11) went to his agricultural land situated in Abpara Scheme Lahore on the `tonga' of Haji Muhammad Din alias Sohni (P. W.9) At that time Abdur Rehman (given up P.W.) was harvesting the sugarcane crop from the adjacent fields of Haji Sultan. Khalid Mehmood deceased went to the said fields to take a sugarcane from there, whereas the complainant Muhammad Ayyub (P.W.2) along with Muhammad Ashraf (given up P.W.) and Muhammad Hanif (P. W.11) proceeded towards the fields of the complainant. In the meanwhile, Muhammad Saleem alias Chhemu appellant armed with .12 bore rifle, Sharafat armed with .44 bore rifle, Muhammad Mansha armed with .12 bore gun, Liaqat armed with .12 'bore gun, Ijaz alias Jajji armed with .12 bore repeater, Ameer Ali armed with Kalashnikov, Muhammad Anwar armed with .12 bore gun and Pervaiz armed with .12 bore gun came at the spot. Sharafat Ali accused (since acquitted) while raising a lalkara asked Muhammad Saleem alias Chhemu (appellant) and Pervaiz Ahmad accused (since acquitted) not to let Khalid Mehmood (deceased) alive as he had committed the murdef of his brother, whereupon, Muhammad Saleem alias Chhemu appellant, Pervaiz Ahmad and Sharafat co-accused (both since acquitted) started firing at'. Khalid Mehmood deceased. The fire shot made by Muhammad Saleem alias Chhemu (appellant) landed on the left side of the chest of Khalid Mehmood deceased who fell on the ground facing downwards. Pervaiz Ahmad accused (since acquitted) made a fire shot which landed on the back of Khalid Mehmood (deceased). Muhammad Mansha accused, Liaqat accused, Ijaz alias Jajji accused, Ameer Ali accused and Muhammad Anwar accused (all since acquitted) also resorted to indiscriminate firing with their respective weapons. Abdur Rehman (given up P.W.) was also injured due to the firing of the accused persons. On raising hue and cry by the complainant party all the accused persons fled away from the spot while raising lalkaras and making aerial firing. Khalid Mehmood deceased and Abdur Rehman (given up P.W.) were taken to Jinnah Hospital in injured condition, where Khalid Mehmood succumbed to the injuries. The motive as 'alleged in the F.I.R. Was that the complainant party had the enmity of murders with Sharafat Ali accused (since acquitted). It was also alleged that the occurrence was committed due to the abetment of Asghar Ali, Muhammad Hussain, Farman Ali, Muhammad Anwar and Farmaish accused persons (all since acquitted), who hatched the conspiracy of murder while sitting in the baithak of Asghar Ali Bhatti accused (since acquitted). 11. We have noted that according to the prosecution case as set forth in the F . I . R. (Exh. PB/1), the appellant Muhammad Saleem alias Chhemu was assigned the role of inflicting a firearm injury on the left side of chest of Khalid Mehmood deceased, whereas Pervaiz Ahmad accused (since acquitted) was attributed the role of making a fire shot which landed on the back of Khalid Mehmood deceased, but the injury attributed to the appellant was an exit wound according to the
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postmortem report of Khalid Mehmood deceased (Exh. PE), therefore, the complainant Muhammad Ayyub (P.W.2) while making his statement before the learned trial Court changed his earlier stance and he assigned the role to the appellant, of making a fire shot at the back of Khalid Mehmood deceased. Muhammad Ayyub complainant (P.W.2), while appearing before the learned trial Court qua injuries of Khalid Mehmood deceased stated as under:- "...Sharafat Ali, accused raised lalkara that Khalid Mahmood was the murderer of his brother and he should not go saved, Saleem alias Chhemu fired his .222 rifle hitting the lower back of Khalid Mahmood and he fell down upon the ground. Pervaiz accused fired with his .12 bare gun hitting the lower back of Khalid Mahmood deceased near to the above said injury." ' The case of other eye-witnesses namely, Muhammad Hanif (P,W.11) and Haji Muhammad Din alias Sohni (P.W.9) regarding the injuries on the person of Khalid Mehmood deceased is as under:-- Muhammad Hanif (P. W.11) "...Sharafat accused alighted from tractor and exhorted Lalkara that Khalid Mehmood had murdered his brother and should not go spare. Salim alias Chhemoon armed with .12 bore fired at the victim Khalid Mehmood which hit him on his lower back, Pervaiz fired with his .12 bore upon which victim Khalid Mehmood fell down on the ground on its bally side." Haji Muhammad Din alias Sohni (P. W.9) "...Salim alias Chhemon fired with his .222 rifle upon Khalid who was in going condition to pick up a sugarcane piece and the same landed upon the back just above the buttock of the victim and which came out from the left side of chest in front. Pervaiz accused fired with his .12 bore gun which landed just below the first injury of an entry wound. ." 12. We have noted that the prosecution case as set forth in the F.I.R. (Exh. PB/l), was changed before the learned trial Court qua the role played by, the appellant during the occurrence. Similarly there was conflict in the statement of the complainant and in the statement of other eye-witnesses of the prosecution inter se, which they made before the police qua the injury attributed to the appellant on the person of the deceased. We will discuss the consequences of above mentioned change/conflict of the prosecution case in the later part of this judgment. However, we have noted that in the statements of prosecution witnesses before the learned trial Court the role attributed to the appellant as well as Pervaiz Ahrnad accused (since acquitted) was identical. Muhammad Saleem alias Chhernu appellant, as well as, Pervaiz Ahmad accused (since acquitted), both were assigned the role of making one fire shot each which landed on the back of Khalid Mehmood deceased. Charge was also framed against Muhammad Saleem alias Chhemu appellant and Pervaiz Ahmad accused (since acquitted) that they committed the qatl-e-amd' of Khalid Mehmood deceased while armed with .222 bore rifle and .12 bore gun in furtherance of their common intention. Pervaiz Ahmad co-accused and ten other co-accused have been acquitted by the learned trial Court while extending them the benefit of doubt, No appeal against their acquittal has been preferred either by the State or by the complainant as confirmed by the learned Deputy Prosecutor-General for the State and the learned counsel for the complainant. Thus, the decision- regarding the' acquittal of said co-accused of the appellant has attained finality. Now the question for determination before this Court is that whether the evidence which has been disbelieved qua Pervaiz Ahmad acquitted co-accused of the appellant can be believed against the appellant. In this regard, we are guided by the judgment of the Hon'ble Supreme Court of Pakistan reported as Iftikhar Hussain and another v. State 2004 SCM R 1185 wherein the Hon'ble Supreme Court at page 562 held as under:- "17.... It is true that principle of falsus in uno falsus in omnibus is no more applicable as on following this principle, the evidence of a witness is to be accepted or discarded as a whole for the purpose of convicting or acquitting an accused person, therefore, keeping in view prevailing circumstances, the Courts for safe administration of justice' follow the principle of appraisal of
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evidence i.e. Sifting of grain out of chaff i.e. If an ocular 'testimony of a witness is -to be disbelieved against a particular set of accused and is to be believed against another set of the accused facing the same trial, then the Court must search for independent corroboration on material particulars as has been held in number of cases decided by the superior Courts. Reference may be made readily to the case of Sarfraz alias Sappi and 2 others v. The State (2000 SCMR 1758), relevant para therefrom is reproduced below thus:-- ' The proposition of law in criminal administration of justice namely whether a common set of ocular account can be used for recording acquittal and conviction against the accused persons who were charged for the same commission of offence is an over-worked proposition. Originally the opinion of the Court was that if a witness is not coming out with a whole truth his evidence is liable to be…
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