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Petitioner: Muhammad Yasin etc. VS Respondent: The State etc.
Court Name: Lahore High Court Judge(s): Aalia Neelum Title: Muhammad Yasin etc. vs The State etc. Case No.: Crl. Appeal No. 2675 of 2010 Date of Judgment:2016-10-19 Reported As: 2016 LHC 3272 Result: Crl. Appeal accepted
Judgment AALIA NEELUM, J.- Appellants, Muhammad Yasin, Muhammad Amin both sons of Hakim Ali and Muhammad Ashraf son of Muhammad Amin all by Caste Kumhar, resident of Sodi Waal, District Kasur being involved in case F.I.R. No.45 of 2009, dated 10.03.2009, offence under Sections 302/109/34 PPC, registered at Police Station Ganda Singh Wala, District Kasur, were tried by the learned Additional Sessions Judge, Kasur. The learned trial court seized with the matter in terms of judgment dated 19.10.2010 and convicted Muhammad Yasin, Muhammad Amin and Muhammad Ashraf (appellants) under Section 302 (b) P.P.C and sentenced them to imprisonment for life. The appellants were further directed to pay Rs.50,000/- each as compensation to the legal heirs of the deceased-Muhammad Asghar in terms of section 544-A Cr.P.C and in case of default in payment thereof, to further undergo SI for six months. 2. Feeling aggrieved by the judgment of the learned trial court, Muhammad Yasin, Muhammad Amin and Muhammad Ashraf, appellants impugned the same by way of filing Crl. Appeal No.2675 of 2010. 3. The prosecution story as alleged in the statement (Ex.PD) of the complainant Muhammad Asif (PW-10) is that he (PW-10), his brother Muhammad Arshad and Muhammad Asghar (deceas ed) obtained land on lease from one Rana Muhammad Akram and cultivated potatoes on it. During the intervening night of 9/10.03.2009, he (PW- 10) along with Rashid and Muhammad Asghar (deceased) was present at his Dera for sleeping when at 11:30 p.m, Muhammad Asghar (deceased) received a mobile phone call. After hearing the phone, his brother Muhammad Asghar left the Dera and went outside to hear Mst. Kausar Bibi and Muhammad Iqbal and after waiting a long time of the deceased-Muhammad Asghar , he (PW-10) along with others went out with torch for the search of Muhammad Asghar (deceased). In the meanwhile, Shakeel Ahmad (PW-9) and Waheed Ahmad (given up PW) both residents of Tolu Wala arrived there. He (PW-10) along with Shakeel Ahmad (PW-9), Waheed Ahmad (given up PW) and Rashid reached near the wheat crop of Atta Muhammad alias Atta Kumhar and saw the motorcycle of Muhammad Asghar-deceased there and when they threw the light of torch at the heap of chaff, he saw Muhammad
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Iqbal armed with Toka causing injury to Muhammad Asghar (deceased) at his neck. Iqbal was also accompanied with three unknown persons, who were also armed with Toka and the unknown accused also gave blows to Muhammad Ashgar-deceased on his right and left ear and on his head above the left eye and one blow at the back of the head. He (PW-10), Rashid, Waheed Ahmad (given up PW) and Shakeel Ahmad (PW-9) witnessed the occurrence and identified Muhammad Iqbal in the light of torch. Three others persons hid themselves near the heap of wheat chaff and fled away . The complainant-Muhammad Asif (PW-10) nominated the appellants namely Muhammad Amin, Muhammad Ashraf and Muhammad Yasin as the accused through supplementary statement dated 13.03.2009. 4. The motive behind the occurren ce is stated to be a suspicion of Muhammad Iqbal that the deceased- Muhammad Asghar had illicit relations with his wife and due to this reason, committed the murder of his brother . 5. The complainant-Muhammad Asif (PW-10) moved an application (Ex.PD) to the Police, whereupon formal FIR (Ex.PD/1) was chalked out by Abbas Ali, ASI (PW-5). Thereafter , the investigation was entrusted to Umer Hayat, SI (PW-11), who visited the place of occurrence, he (PW-11) prepared the inquest report (Ex.PJ), injury statement (Ex.PK) and application for postmortem (Ex.PL) and entrusted the dead body of the deceased-Muhammad Asghar to Muhammad Saeed (C) and Muhammad Aslam 708-C (PW-2) for escorting the same to the mortuary and recorded the statements of witnesses under section 161 Cr.P.C, prepared the rough site plan of place of alleged occurrence as Ex.PM and the blood stained earth was taken into possession through recovery memo (Ex.P A). After postmortem examination of the deceased-Muhammad Asghar , Muhammad Aslam 708/C (PW-2) brought the last worn clothes of the deceased i.e Shalwar (P-1), Qameez (P-2) and vest (P-3), which were taken into possession by the Investigating Officer (PW-11) vide recovery memo (Ex.PB). The complainant (PW-10) also got recorded the supplementary statement to the Investigating Officer (PW-11) at the place of the occurrence on 10.03.2009. Thereafter the investigation was entrusted to Muhammad Sharif, SI (PW-12) on 12.03.2009. On 13.03.2009, Muhammad Asif-complainant (PW-10) got recorded his supplementary statement and nominated the accused persons namely Muhammad Ashraf, Muhammad Amin and Muhammad Yasin as his culprits. Thereafter , he (PW- 12) arrested the appellants namely Muhammad Amin, Muhammad Ashraf and Muhammad Yasin and got their physical remand. On 15.04.2009, on the pointing of Muhammad Ashraf-accused alleged Toka (P-6) and mobile phone were recovered and taken into possession by the I.O (PW-12) vide recovery memo (Ex.PF) and he (PW-12) also prepared unscaled site plan of the place of recovery as (Ex.PF/1). On the same day on the pointing of Muhammad Yasin accused alleged Toka (P-4) and I.D Card (P-5) were recovered and taken into possession by the I.O (PW-12) vide recovery memo (Ex.PE) and he (PW-12) also prepared the unscaled site plan (Ex.PE/1). On 10.04.2009, he (PW-12) arrested the accused-Muhammad Amin and on 23.4.2009 on the pointing of Muhammad Amin, he (PW-12) allegedly secured hatchet (P-8), a small diary (P-9) and Rs.15,000/- (P-10/1-15) vide recovery memo (Ex.PG) and he (PW-12) also prepared the unscaled site plan (Ex.PG/1). The statements of prosecution witnesses under section 161 Cr .P.C were also recorded by the Investigating Of ficer (PW -12). 6. Having found the appellants guilty, the Investigating Officer (PW-12) prepared report under Section 173 Cr.P.C and sent the same to the court of competent jurisdiction. On 07.12.2009, the learned trial court formally charge sheeted the appellants to which they pleaded not guilty and claimed trial. The prosecution in support of its version produced as many as twelve (12) prosecution witnesses. 7. Ocular account of first part of occu rrence in this case has come out from the statements of Muhammad Asif- complainant (PW-10) and Shakeel Ahmad (PW-9), whereas, Dr. Javaid Akhtar , Medical Officer (PW-3) had conducted postmortem examination of the dead body of deceased-Muhammad Asghar on 10.03.2009 and found the following injuries on his person:- (1) Incised wound 16 x 3 cm on left side of the head from outer margin of the orbit to left ear with rupture of bone and exposed brain matter with damaged left eye ball. (2) Incised wound of size 10 cm x 1 cm on left side of the head with ruptured bone and brain exposed. (3) Incised wound 10 cm x 3 cm on back and left side of the head with brain exposed.
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(4) Incised wound 10 cm x 5 cm on front of neck which is straight cutting trachea esophagus, major vessels and nerves deep to vertebral column. Hyoid bone is intact, brain and membranes were damaged. (5) An abrasion 5 cm x 2 cm on right cheek. (6) Incised wound 3 x 1/2 cm on right ear. After conducting the postmortem examination, the doctor rendered the following opinion:- "In my opinion, death is due to hemorrhage and injury to vital organs that is brain under injuries No.1 to 4, which are sufficient to cause death in ordinary course of nature. All injuries are ante-mortem and caused by sharp edged weapon." The statements of remaining prosecution witnesses are formal in nature. 8. On 24.08.2010, the learned DDP P gave up PWs namely Waheed Ahmad and Muhammad Rashid being unnecessary . On 06.10.2010, the learned ADPP also closed the evidence of prosecution by tendering the report of Chemical Examiner regarding hatchet (Ex.PN), Chemical Examiner Report of Toka (Ex.PO), report of Chemical Examiner Toka from appellant Muhamma Yasin (Ex.PP), report of Chemical Examiner about earth (Ex.PQ) and reports of Serologist (Ex.PR) and (Ex.PS). 9. The appellants were also examined in terms of Section 342 Cr.P.C, wherein they opted not to appear as their own witnesses in disproof of the allegations levelled against them in the prosecution version. In response to a particular question why this case is against them and why the PWs deposed against them, Muhammad Amin, made the following deposition:- "I along with my other relative co-accused namely Muhammad Yasin and Muhammad Ashraf were arrayed as accused after two days of the registration of the case. The circumstances during the investigation were to the effect that the deceased himself went to the place where the occurrence took place. He himself had hidden the motorcycle by parking it in a Khaali and chose such a place that was not accessible or visible to any one and the circumstances also depict that the occurrence took place when the deceased was busy in some nefarious activities. This is why no time of occurrence has been mentioned in the FIR or later on in the statement of witness during inves tigation. The deceased owned some money to me and my brother Muhammad Yasin and we had started working with the first cousin of deceased and the complainant. This annoyed the complainant party . The occurrence was blind murder therefore, while exerting political pressure the complainant and his witnesses implicated me and my co-accused namely Muhammad Yasin and Muhammad Ashraf in this false case. I along with my co-accused were taken into custody after about three days of the occurrence and we were detained in illegal custody and all the third degree methods were exhausted by the I.O and later on my arrest was incorporated in the file. I along with other co-accused who are my family members have been facing the protracted trial since 13.03.2009. All the PWs are related interse and they are residents of village Tolu Wala which is situated at a distance of 20-KM from the place of occurrence. The witnesses are not only related interse but they are also inimical towards me." Whereas, Muhammad Ashraf, made the following deposition, which is as under:- "I along with my other relative co-accused namely Muhammad Yasin and Muhammad Ameen were arrayed as accused after two days of the registration of the case. The circumstances during the investigation were to the effect that deceased himself went to the place where the occurrence took place. He himself had hidden the motorcycle by parking it in a Khaali and chose such a place that was not accessible or visible to any one and the circumstances also depict that the occurrence took place when the deceased was busy in some nefarious activities. This is why no time of occurrence has been mentioned in the FIR or later on in the statements of witness during investigation. The deceased owned some money to my father Muhammad Amin and Yasin and they had started working with the first cousin of deceased and the complainant. This annoyed the complainant party . The occurrence was blind murder therefore, while exerting political pressure the complainant and his witnesses implicated me and my co-accu sed namely Muhammad Amin and Muhammad Yasin in this false case. I along with my co-accused were taken into custody after about three days of the occurrence and we were detained in illegal custody and all the third degree methods were exhausted by the I.O and later on my arrest was incorporated in the file. I along with other co-accused who
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are my family members have been facing the protracted trial since 13.03.2009. All the PWs are related interse and they are residents of village Tolu Wala which is situated at a distance of 20-KM from the place of occurrence. The witnesses are not only related interse but they are also inimical towards me." Whereas, Muhammad Yasin, made the following deposition, which is as under:- "I along with my other relative co-accused namely Muhammad Amin and Muhammad Ashraf were arrayed as accused after two days of the registration of the case. The circumstances during the investigation were to the effect that the deceased himself went to the place where the occurrence took place. He himself had hidden the motorcycle by parking it in a Khaali and chose such a place that was not accessible or visible to any one and the circumstances also depict that the occurrence took place when the deceased was busy in some nefarious activities. This is why no time of occurrence has been mentioned in the FIR or later on in the statements of witness during investigation. The deceased owned some money to me and my brother Muhammad Amin and I had started working with the first cousin of deceased and the complainant. This annoyed the complainant party . The occurrence was blind murder therefore, while exerting political pressure the complainant and his witnesses implicated me and my co-accu sed namely Muhammad Amin and Muhammad Ashraf in this false case. I along with my co-accused were taken into custody after about three days of the occurrence and we were detained in illegal custody and all the third degree methods were exhausted by the I.O and later on my arrest was incorporated in the file. I along with other co-accused who are my family members have been facing the protracted trial since 13.03.2009. All the PWs are related interse and they are residents of village Tolu Wala which is situated at a distance of 20-KM from the place of occurrence. The witnesses are not only related interse but they are also inimical towards me." 10. The learned trial court after evaluating the evidence available on record in the light of arguments advanced from both sides, found the prosecution version proved beyond any shadow of reasonable doubt resulting into conviction of the appellants in the afore stated terms. 11. Learned counsel for the appellants have contended that it was an unseen occurrence; that the eye witnesses falsely deposed against them and the evidence of the witnesses are not credible and trustworthy; that the main accused of the occurrence has been acquitted by the learned trial court; that the complainant has booked the appellants in a false case with mala fide intention; that the eye witness of occurrence namely Waheed Ahmad was given up by the prosecution, who was the important witness of the occurrence; that there is a conflict between the medical evidence and ocular account as well as the statement of the prosecution witnesses. Learned counsel for the appellants has further submitted that the version of the appellants was not appreciated in juxtaposition with the prosecution evidence; that the appellants are not nominated in the FIR and the supplementary statement cannot be equated with the FIR. Learned counsel for the appellants has lastly prayed that the prosecution has badly failed to prove its case against the appellants beyond any shadow of doubt and therefore, the appellants may be acquitted from the charge. 12. On the other hand, the learned Deputy Prosecutor General assisted by the learned counsel for the complainant has vehemently opposed the contentions raised by the learned counsel for the appellants with the submissions that the appellants are involved in the occurrence with specific role and that the prosecution witnesses remained consistent on all material points. Learned counsel for the complainant lastly prayed that the prosecution has proved its case against the appellants and therefore, the appeal in hand may be dismissed. 13. Arguments advanced from both sides have been heard. I have also gone through the record with the able assistance of the learned counsel for the parties. I4. I have carefully gone through the evidence of the complainant-Muhammad Asif (PW-10) and Shakeel Ahmad (PW-9), the eye witness, but I do not think I can place any reliance on it for the purpose of maintaining the conviction of the appellants-Muhammad Yasin, Muhammad Amin and Muhammad Ashraf. The evidence suffers from serious infirmities. It is not necessary to reiterate them, but it will be sufficient if I refer only to one infirmity which, in my opinion, is of the most serious character. Though according to these witnesses, they saw the occurrence on the intervening night of 09.03.2009 and 10.03.2009, in the light of torch that Muhammad Iqbal (since acquitted) armed with Toka caused injury to Muhammad Asghar at his neck and three other
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persons who were armed with Toka also inflicted blows to Muhammad Asghar on his head at left ear, on his head, left ear and one blow on his right ear. They identified Muhammad Iqbal (since acquitted) in the lit of torch whereas the three other accused persons got aside of the heap of wheat chaff and fled away. During court statement the complainant-Muhammad Asif (PW-10) deposed that, "on 13-03-2009, I Muhammad Waheed, Muhammad Rashid and Shakeel reached Mouza Sodi Wala. I identified Muhammad Ashraf, Muhammad Amin and Muhammad Yasin as the accused persons. " The complainant-Muhammad Asif (PW -10) deposed during cross examination that, "I knew Yasin, Amin and Ashraf accused about four years prior to the occurrence. Volunteered: they worked with us for one year and thereafter left." He further deposed during cross examination that :- "It is correct that accused, Amin, Yasin and Ashraf were known well to us with face and their names ." complainant, whereas the complainant nominated them on 13-03-2009. However, Muhammad Nasrullah draftsman (PW-8) deposed that on 12-03-2009 he visited the place of the occurrence and on the pointing of the complainant and PWs he (PW-8) took rough notes of the place of occurrence and on 13-03-2009 he handed over scaled site plan Exh.PH and Exh.PH/1 to the Investigating Officer. The names of the accused Muhammad Yasin, Muhammad Amin and Muhammad Ashraf had been mentioned in the scaled site plan. From the unscaled site plan, it reveals that at the time of site inspection by the I.O, the complainant had not cooked up the story. Thereafter, complainant concocted story and its picture reflects from the scaled site plans (Ex.PH and Ex.PH/1). During cross-examination Muhammad Nasrullah, Draftsman (PW-8) deposed that he visited the place of the occurrence at 11:00 a.m. on 12-03-2009; he (PW 8) admitted it correct that in the rough site plan shown to him and allegedly prepared by IO has no other point except "A"; the direction of motorcycle was not told to him. Umer Hayat Warraich, SI (PW-11) deposed during cross-examination that:- "It is correct that I have mentioned only one point A at site plan Exh.P .M from where the blood stained earth was taken and the dead body was lying. It is correct that the place of occurrence is surrounded by cultivated land ." The investigation of the case remained with the first investigating officer-Umer Hayat Warraich, SI (PW-11) till second day of the occurrence. This leave no room for doubt that the appellants-Muhammad Yasin, Muhammad Amin and Muhammad Ashraf were not named as accused till 13.03.2009. Muhammad Shareef, SI (PW-12) deposed during cross examination that, "It is also correct that I assumed the investigation on 12-03-2009. " Umer Hayat W arraich, SI (PW -11)-the investigating of ficer deposed during cross examination that, "It is correct that Yasin, Ashraf and Amin accused were not the accused persons till the investigation remained with me. It is correct that in the police proceedings while recording the first inspection note, in the last five lines I have mentioned that the accused Yasin was present at point C, Muhammad Ashraf was present at point D and Amin accused was present at point E and that they alongwith their TOKA inflicted injuries on the person of Asghar deceased and injured him. It is correct that I also recorded in my proceedings that at point F the motorcycle of the deceased was lying parked and was taken into possession through recovery memo. I incorporated these contents on 10-03-2009 and not afterwards. I was told about these facts by the persons present at the place of the occurrence. Those persons were spies of the police and so have not been brought on record. " These are very serious infirmities which destroy the credibility of the evidence of witnesses. If the evidence of these witnesses is rejected as untrustworthy , nothing survives of the prosecution case. These are the material contradictions in the prosecution witnesses testimony , among themselves and element of truthfulness is diminishing at a very fast speed in respect of incident. 15. Another important aspect of the case which cannot go un-noticed is that while lodging the crime report, the complainant-Muhammad Asif (PW-10) in his examination-in-chief has stated that occurrence took place between intervening night of 09-03-2009 and 10.03.2009. Muhammad Asghar (the deceased) was present with his brothers namely Muhammad Asif (PW-10) and Muhammad Rashid at their dera at 11:30 p.m on 09.03.2009, when he (Muhammad Asghar) received a call on cell phone on the same night (i.e. 09-03 2009) of someone and
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after hearing the call he (Muhammad Asghar) went out of dera to hear Kausar Bibi and Muhammad Iqbal (since acquitted). After waiting for considerable time the complainant-Muhammad Asif (PW-10) along with Shakeel (PW-9), Waheed and Muhammad Rashid went for search of Muhammad Asghar along with torch. When they reached near the wheat crop of Atta Muhammad alias Atta Kumhar they saw motorcycle of Muhammad Asghar there and he (PW-10) threw the light of torch at the heap of chaff and they saw Muhammad Iqbal (since acquitted) armed with Toka causing injury to Muhammad Asghar at his neck and three other persons who were armed with Toka also caused blows to Muhammad Asghar on his right and left ear and on his head above the left eye and one blow at the back of the head. They identified Muhammad Iqbal (since acquitted) in the light of torch whereas the three other accused person s got aside of the heap of wheat chaff and fled away . The complainant- Muhammad Asif (PW-10) informed the police about the occurrence at 10:20 a.m on 10.03.2009 through a written complaint (Exh.PD) whereupon formal F.I.R. was chalked out. Whereas distance between place of occurrence and police station was 26 kilometers. Dr. Javaid Akhtar (PW-3), also opined that the probable time elapsed between injury and death was within half to one hour and time between death and postm ortem was about 18 hours. The postmortem examination report (Exh.PC) reveals post mortem examination was conducted at 4:15 p.m. on 10-03- 2009. Dr . Javaid Akhtar (PW -3) deposed during cross-examination that, "It is correct that the dead body was not produced along with the police papers before me prior to 4:15 P.M. In column of death in Exh.PC the date and time of death had not been mentioned in the police papers so I reproduced the same. I had mentioned the time that elapsed between injury and death as half an hour keeping in view the injuries sustained by the deceased. " According to the F.I.R. (Ex.PD/1), the deceased had died at the spot on receiving injuries. As such, there is conflict between the medical and oral evidence. This fact creates doubt in the prosecution case as well as on the credibility and truthfulness of the statements of Shakeel Ahmad (PW-9) and the complainant-Muhammad Asif (PW-10). Shakeel Ahmad (PW -9) deposed during cross-examination that:- "I do not know that how long the deceased remained alive after receiving the injuries. Volunteered: he had died at the spot. We did not try to administer any water to the deceased as he had already died nor any water was available at that time. None of us tried to lift Asghar deceased. Volunteered: when we checked he had died." The complainant-Muhammad Asif (PW -10) deposed during cross-examination that, "The deceased died within 2/3 minut es of receiving of injuries. Volunteer ed: when I reached near the deceased he had died. I do not know that the deceased died after an hour of receiving injuries. (Again said, as objected to at the prompting of the complainant's counsel,) it is incorrect ." Dr. Javaid Akhtar (PW-3) in his evidence had stated that time between death and post mortem was about 18 hours. Keeping in view the time lapse between death and post mortem of about 18 hours if I work backwards, then I notice that death had taken place around about 10:15 p.m. on 09-03-2009. This goes against the prosecution case and shows that at 11:30 p.m, the deceased was not alive as stated by the prosecution witnesses. The complainant- Muhammad Asif (PW -10) deposed during cross-examination that, "The occurrence took place at about 1:45 /2:00 A.M. after mid night. I did not explain the detail of 8 hours to the police during investigation or in the application…
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