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Petitioner: MAZHAR IQBAL VS Respondent: The STATE
Court Name: Lahore High Court Judge(s): Sayyed Mazahar Ali Akbar Naqvi, Ali Baqar Najafi Title: MAZHAR IQBAL vs The STATE Case No.: Criminal Appeal No,186 of 2007 Date of Judgment:2013-06-12 Reported As: 2015 MLD 728 Result: Appeal accepted
JUDGMENT
JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Mazhar Iqbal son of Ghulam Rasool, caste Gujjar, resident of Sohaal, Police Station Kukrali, District Gujrat, appellant, was involved in case FIR No,513, dated 12-9-2001, offence under sections 302, 324, 392, P.P.C., registered at Police Station Shadbagh, Lahore, and was tried by Ch. Khaliq-uz-Zaman, learned Additional Sessions Judge, Lahore. The learned trial court seized with -the matter in terms of judgment dated 27-1-2007 convicted the appellant under section 302(b), P.P.C., and sentenced him to death on two counts with direction to pay Rs,1,00,000 to legal heirs of each of the accused in terms of section 544-A, Cr.P.C. Under section 398, P.P.C., the appellant was sentenced to undergo R.I. For ten years. 2. Feeling aggrieved by the judgment of the learned trial court, the appellant has assailed the same through filing Criminal Appeal No,186 of 2007 while the learned trial court forwarded Murder Reference No,16 of 2007 for confirmation of death sentence in terms of section 374, Cr.P.C. As both the matters are arising out of one and the same judgment of the learned trial court, therefore, these are being disposed of through single judgment. 3. Prosecution story as contained in the FIR (Exh.PK/1) lodged on the complaint (Exh.PK) of Muhammad Iqbal son of Qutab Din, caste Rajput, resident of House No,668 near Jamia Masjid Tayyaba, Shad Bagh, Lahore (not produced during the course of trial) is that he was involved in the business of scrap in Misri Shah. Muhammad Khalid son of Noor Muhammad, caste Rajput, resident of Makhanpura, Shad Bagh Lahore, cousin of the complainant, used to run auto-rickshaw, whereas, Munawar Ali son of Muhammad Anwar, caste Rajput, resident of Mauza Jandar Kalan, Tehsil Shakargarh, District Narowal alongwith his brothers namely Muhammad Sarwar and Muhammad. Amjad had established his shop of tyre puncture in New Shad Bagh Chowk. On 12-9-2001 at 08:15
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p.m. Cousin of the complainant namely Muhammad Khalid was getting pasted puncture of tyre while standing outside the shop of Munawar Ali when a young guy aged 20/22 years, average height and wheatish colour while wearing shalwar kameez of cream colour, came near the shop and all of sudden started making firing with his pistol near the road, which landed on left and right flanks and wrist of left hand of Munawar Ali. In the meanwhile Muhammad Khalid started chasing Muhammad Khalid; whereupon the accused also made fire shots upon Muhammad Khalid with his pistol, which landed on his left flank and abdomen. Amir Raza son of Muhammad Nawaz, caste Sheikh, resident of Amir Road, Shad Bagh, Lahore, tried to chase the accused upon which he made a fire shot with his pistol, which landed on abdomen of Amir Raza underneath naval. Munawar Ali and Muhammad Khalid succumbed to the injuries while reaching in Emergency Ward of Mayo Hospital, Lahore, whereas, Amir Raza was admitted in Emergency Hospital, Lahore, for medical treatment. Besides the complainant, the occurrence was witnessed by Muhammad Sarwar and Muhammad Amjad brothers of Munawar Ali deceased and other shop-keepers, 4. Irshad Baig, S.I. (P.W.17) was on patrol duty when on receipt of information regarding the occurrence he rushed towards Emergency Ward of Mayo Hospital, Lahore, where the dead bodies of Khalid and Munawar Ali were lying while Amir Raza was admitted in Emergency in an injured condition. The Investigating Officer made application (Exh.PJ) before the doctor for recording statement of the injured, which was not allowed due to his precarious condition. Thereafter, the Investigating Officer recorded the statement (Exh.PK) of Muhammad Iqbal complainant and sent the same to Police Station through Muhammad Mustafa constable for registration of formal FIR. He inspected the dead bodies of Munawar Ali and Khalid deceased and made their inquest reports (Exh.PL and Exh.PM respectively) and then sent the dead bodies to mortuary for postmortem examination through Sakhi Muhammad and Muhammad Iqbal constables. The Investigating Officer proceeded to the place of occurrence along with the complainant. On 13-9-2001 the Investigating Officer recorded the statements of the prosecution witnesses under section 161, Cr.P.C., inspected the spot and prepared rough site plan of the place of occurrence (Exh.PN). On site inspection the Investigating Officer collected four crime empties (P-4/1-4), made into sealed parcel and took into possession vide recovery memo Exh.PF. On the same day after the postmortem examination last worn clothes of Munawar Ali, shirt (P-1), pajama (P-2), were produced before the Investigating Officer which he took into possession vide recovery memo Exh. PA. Last worn clothes of Khalid deceased shirt, (P-3) and pajama (P-4) were also taken into possession by the Investigating Officer vide recovery memo Exh.PB. On 14-9-2001 Hamid-ud-Din Chishti draftsman (P.W.5) took rough notes of the place of occurrence on the pointing out of the prosecution witnesses and on 16-9-2001 after preparing scaled site plan (Exh.PD and Exh.PD/1) he handed over the same to Investigating Officer, which was made part of the file. On 24-9-2001 the Investigating Officer arrested the accused in the instant case and sent him for identification parade. On 3-10-2001 identification parade (Exh.PS) was conducted and thereafter, the Investigating Officer obtained physical remand of the accused and during the course of investigation on 9-10-2001 the accused led the Investigating Officer and pointed out the place of occurrence regarding which the Investigating Officer prepared memo of pointation (Exh.PC). He also made rough site plan of the memo of pointation (Exh.PC/1). 5. Having found the appellant guilty, the Investigating Officer prepared report under section 173, Cr.P.C. And sent the same to the court of Session enrouted through the Illaqa Magistrate as provided under section 190(2), Cr.P.C. On 20-11-2002, the learned Additional Sessions Judge, Lahore, formally charge sheeted the appellant under sections 302, 324, P.P.C., to which he pleaded not guilty and claimed trial. Prosecution in order to substantiate its case produced as many as eighteen (18) prosecution witnesses.
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6. It is pertinent to mention here that Muhammad Iqbal complainant did not appear in the instant case. Prosecution version of occular account was adduced through the statements of Muhammad Saleem (P.W.6), Muhammad Sarwar (P.W.11) and Amjad All (P.W.12). Besides, Muhammad Saleem (P.W.6) is also witness of identification parade. Muhammad Waseem Ahmed the then Magistrate (P. W.16) had supervised the process of identification parade. On presentation of complaint Muhammad Mushtaq, S.I. (P.W.18) had chalked out formal FIR, whereas, Hamid-ud-Din Chishti, draftsman (P.W.5) had prepared scaled site plan of the place of occurrence. Investigation in this case was conducted by Irshad Baig, S.I. (P.W.17). Dr. Khalid Hussain (P.W.7) had conducted postmortem examination upon the dead body of Munawar Ali deceased and found following Injuries on his person:-- Injury No,4-B. A lacerated wound 1.5 x.1.00 cm on the outer part of left fore-arm. Margins reverted. 2.5 cm from 4-A, 3.5 cm above the left wrist. Injury No,5-A. A lacerated wound 0.5 x 0.5 cm on the back of proximal interphalengel joint of the left little finger. Margins inverted. Injury No,5-B. A lacerated wound 1.5 x 1.2 cm on the front part of the proximal interphalangel joint of the left little finger. Margins everted. Injury No,6-A. A lacerated wound 1.5 x 1 cw on the lower outer right arm. Margins are inverted. 6 cm above the elbow. Injury No,6-B. A lacerated wound 0.9 x 1.0 cm on the mid back of right arm, 5 cm behind 6-A, 11 cm above the elbow. Everted margins. After conducting the postmortem examination, the doctor rendered the following opinion:-- "Injuries Nos.1 to 6 are ante-mortem and caused by fire-arms. Injuries Nos.1 and 2 caused extensive damage to the vital structure of the abdomen and chest with the blood vessel leading to pro fused haemorrage shock and death. These injuries are sufficient to cause death individually as well as collectively, in an ordinary course of nature. The probable time between injury and death was within half an hour and between death and postmortem was 24 to 36 hours," Dr. Muhammad Mushtaq (P.W.14) had conducted postmortem examination upon the dead body of Khalid deceased and, observed following injuries on his person:-- "(1) A lacerated wound 1 x 1 cm circular in shape, with inverted margins and a collar of abrasion, 14 cm from left nipple, downwards, 7 cm, from midline of chest, front and lateral part of left chest. (2) A lacerated wound 1..5 x 1 cm with inverted margins and a collar of abrasion, left thigh, 16 cm, from left knee, 18 cm from anterior, inferior iliac spine. (3) A lacerated wound 1 x 1 cm, with everted margins, 14 cm lateral to the injury No,2, 4 cm from left knee towards outer side, inters connection found with injury No,2 on probing i,e, injury No,3 is the exit wound of injury No,2, the underline bone was fractured." After the postmortem examination the doctor rendered the following opinion:-- "All the injuries stated above were ante-mortem and were caused by firearm. The cause of death in this case was due to haemorrhage severe in nature and shock caused by injury Nos.1 and 2; injuries Nos.1 and 2 damaged the vital organs aorta and femoral vessels respectively. Both the injuries were sufficient to cause death in an ordinary course of nature. The probable time between injuries and death was within 20 minutes and between death and post mortem was about 12 to 20 hours," sustained injuries during the occurrence and he was medically examined by Dr. Muhammad Nawaz (P.W.19), howeyer, injured P.W. Did not support the prosecution case during the course of trial while statements of rest of the prosecution witnesses are formal in nature. 7. Vide his statement recorded on 18-6-2005 learned DDA gave up Muhammad Iqbal 7311/C, Abdul Hameed 5083/C and Muhammad Nadeem, P.Ws., being unnecessary. On 8-7-2005, learned DDA further gave up Muhammad Saleem P.W. Being unnecessary. Vide his statements recorded on 15- 10-2005, 2-5-2006, 29-6-2006 and 1-8-2006, learned DDA gave up Muhammad Iqbal complainant
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being not traceable, Muhammad Shahid being unnecessary, Muhammad Anwar Head constable being unnecessary and Amer Suhail and Muhammad Nawaz, ASI, P.Ws., again being unnecessary. Vide his separate statement recorded on 22-9-2006 learned DDA tendered in evidence the report of Serologist (Exh.PR) and thereafter closed the prosecution evidence. 8. The appellant was also examined under section 342, Cr.P.C., wherein he opted neither to produce defence evidence nor to appear as his own witness in terms of section 340(2), Cr.P.C. In disproof of the allegations levelled against him in the prosecution evidence. While replying to the question why this case against him and why the P.Ws. Deposed against him, the appellant made the following deposition:-- "I was running my business of fruit in the area of Shadbagh Lahore prior to my false implication and my arrest in this case. Prosecution witness Amer Suhail who is a police tout and the stock witness of the police, used to take 'Bhatta' from the petty shopkeepers and fruit vendors etc. Under the shelter of local police. On refusal to pay 'Bhatta' to said P.W., he used to involve the persons so refusing into false criminal case with the criminal support of the local police. Amer Suhail P.W. Also demanded money from me and on my refusal he injured me through fire shots and handed over to the police for involving me in false criminal cases. The police to cover up their deficiency falsely implicated me in many of untraced and blind murder cases. For the purpose my photographs and videos were prepared by the police during my arrest and I have been also shown to so-called P.Ws. During my arrest. I have been acquitted by the Courts in such like murder cases. The attested copy of judgment dated 5-12-2005 passed by Mr. Zawar Ahmed, learned Special Judge Anti-Terrorism Court No,IV, Lahore, in case FIR No,354/2001, dated 5-9-2001, offence under sections 302/392, P.P.C., and 7 ATA Police Station Gujjar Pura, Lahore, is Exh.DF and judgment passed by Mr. Jahandar Khan Banth, learned Additional Sessions Judge, Lahore, in case FIR No,101/2001, dated 2-3-2001, under section 302/324, P.P.C., Police Station Misri Shah, Lahore, is Exh.DG." Learned trial court after evaluating the evidence available on record found the version of the prosecution proved beyond shadow of reasonable doubt resulting into his conviction in the afore stated terms. 9. Learned counsel for the appellant while opening his arguments submitted that the impugned judgment is based upon conjectures and surmises and the learned trial court while recording conviction against the appellant has not advanced any cogent reasons. Learned counsel vehemently contended that as per prosecution version the occurrence had taken place on 12-9- 2001 at 8:15 p.m. Whereas the matter was reported to the police with an unexplained delay of two hours and fifteen minutes especially when inter se distance between the place of occurrence and the Police Station is only 1 KM. Learned counsel further emphasized that both Muhammad Sarwar (P.W.11) and Amjad Ali (P.W.12) had reached the place of occurrence from Shakar Garh, District Narowal, therefore, the learned trial court fell in error while believing their testimonies particularly when both of them made evasive answers during the course of cross-examination. Learned counsel urged that as the occular account is not confidence inspiring, therefore, the medical evidence lends no support to the prosecution version during the course of trial. He added that neither Muhammad Iqbal complainant appeared in the witness box nor Amir Raza injured (P.W.10) supported the prosecution version. It was further argued that the identification parade has no value as neither prosecution witnesses mentioned in the crime report join the identification parade nor the number of dummies was according to dictates of law on the subject. Learned counsel forcefully argued that even before identification parade during the press-conference convened by the SSP (Operations), Lahore, the appellant was shown to media personnel and his pictures were also published in the print media. Learned counsel added that pistol (crime weapon) was not recovered during the course of investigation in this case. Moreover, parcel was dispatched to the
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office of Forensic Science Laboratory with a delay of thirteen days. In this back drop, it was contended by learned counsel for the appellant, the conviction recorded by the learned trial court against the appellant is in utter disregard to the cannons of safe administration of criminal justice. He added that as there is no evidence against the appellant regarding offence under section 398, P.P.C., the learned trial court was not justified in recording conviction against him on this count. Lastly prayed that as the prosecution had badly failed to prove its case against the appellant through leading cogent and confidence inspiring evidence, therefore the appellant is liable to his clean acquittal of the charges. 10. On the other hand learned Deputy Prosecutor General vehemently opposed the contentions raised by learned counsel for the appellant with the submissions that although the appellant was not named in the crime report, however, his complete body structure was mentioned therein. Learned Deputy Prosecutor General further stated that as the deceased and injured were shifted to hospital soon after the occurrence by the complainant, therefore, the delay in lodging the FIR is not of much significance. It was argued that Muhammad Saleem (P.W.6), Muhammad Sarvvar (P.W.11) and Amjad Ali (P.W.12) fully supported the prosecution version and in presence of their statements the factum of giving up Muhammad Iqbal complainant and Amir Raza (P.W.10) does not create any serious dent in the prosecution version. Moreover, the appellant was also identified during the course of test identification parade and minor deficiencies therein are procedural mistakes, which do not .Shatter its credence in any manner whatsoever. It was urged by learned Deputy Prosecutor General that the medical evidence is in line with the prosecution version. Learned Law Officer emphasized that the prosecution witnesses being closely related to the deceased had no to falsely substitute the appellant in place of real culprit(s). It was finally argued that the appellant is a hardened criminal, who took the life of as many as six innocent persons, who was also found guilty as such his name was placed in, column No,3 of the report prepared under section 173, Cr.P.C. And the learned trial court while dealing each and every aspect of the case while appreciating the prosecution evidence in its true perspective and advancing cogent reasons rightly convicted the appellant. 11. We have heard the arguments advanced by learned counsel for the appellant, as well as, learned Deputy Prosecutor General and gone through the record available on file with their able assistance. 12. In the instant case as per prosecution version the occurrence had taken place on 12-9-2001 at 8:15 p.m. Whereas it was reported to the police at 10:30 p.m. On the same day i,e, with a delay of more than two hours, which has not been explained properly by the prosecution. In Ordinary circumstances such like delay is not paid much heed but when such gruesome occurrence has taken place in the heart of the city, which is connected to the Police Station with a metaled road with hardly 1-KM inter se distance, such delay speaks volume especially when the complainant himself claims that he had witnessed the occurrence and was not having any handicap to furnish information to the police. In a similar situation in dictum of law laid down in the case of Mehmood Ahmed and 2 others v. State 1995 SCMR 127 the Hon'ble Supreme Court of Pakistan took serious notice of delay in lodging the FIR; thereby holding that:-- "Although in some circumstances a delay of two hours may not be of much importance yet in the facts and circumstances of this particular case as they have happened, the delay has great significance. It can be attributed to consultation, taking instructions and calculatedly preparing report keeping the names of accused open for roping in such persons whom ultimately prosecution may wish to implicate. This does not mean that in any other case where the complainant does not mention the names of the accused an adverse inference has to be drawn but in cases where the facts show that in the normal circumstances the complainant could have known or obtained the names of the accused, it will be rather dangerous to rely upon such
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witnesses unless very strong piece of evidence is produced to substantiate the prosecution case. In the present case if the complainant would have reached the police station within 15 to 30 minutes of the incident, one could say that immediately after the incident the complainant having no interest in the matter had rushed to the police station to lodge information so that immediate steps may be taken by the police. Such is not the case here and as discussed above, the delay in particular circumstances of this case has not been explained." 13. As far as the other contents of the crime report are concerned, it is admitted fact that the assailant was not nominated in the crime report though he was described in the FIR with common features of the body structure. There are four prosecution witnesses mentioned in the crime report including the complainant out of who two are real brothers of Munawar Ali, one of the deceased. Both are residents of Tehsil Shakargarh, which is situated at a distance of 160-Kms from the place of occurrence. Besides above, occular account consists of the complainant and Amir Raza (P.W.10) injured witness of the occurrence. During the course of trial the complainant of this case Muhammad Iqbal was not produced by the prosecution for the reasons best known to it, whereas, Amir Raza (P. W.10) has not supported the prosecution version rather he, in categorical terms, stated before the learned trial court that the appellant is not person (assailant), who inflicted injuries on his person and was instrumental in the death of two persons. Now the statements of only two prosecution witnesses Muhammad Sarwar (P.W.11) and Amjad Ali (P.W.12) remain in field. Both the prosecution witnesses, stated above, are residents of a far away distance and if their statements are scrutinized on the touchstone of guidelines given by the superior courts of the country from time-to-time for proper appreciation of evidence, there is no second cavil to this proposition that their statements do not meet the required standard to be taken into consideration in the case involving capital punishment. During the course of cross-examination, most of the questions were either answered in negative or the prosecution witnesses failed to give details of even salient features of the prosecution version with reference to manner of occurrence, inter se distance between the place of occurrence and the hospital, mode of transportation of victims to hospital, the route used while shifting the victims, arrival of the Investigating Officer and time of making their statements under section 161, Cr.P.C.. Such details were either not properly answered or those were skipped over silently. This aspect cannot be ignored by this Court especially when the appellant before this Court was not nominated in the crime report. If at all it is assumed for the sake of arguments that the prosecution witnesses were present at the place of occurrence then admittedly both of them miserably failed to establish their presence at the time of occurrence with cogent reasoning, hence at the most they can be dubbed as chance witnesses and evidence of such a witness requires strong/independent corroboration before taking into consideration particularly in the case of capital charge, which is squarely missing in the instant case. Respectful reliance in this regard is made to the ratio decidendi of august Supreme Court of Pakistan in the case of Nadeem alias Nanha alias Billa Sher v. The State (2010 SCMR 949), Similar view was affirmed by august Supreme Court of Pakistan in the cases of Abid Ali and 2 others v. The State (2011 SCMR 208) and Muhammad Ashraf v. The State (2012 SCMR 419). 14. Admittedly the appellant was not nominated in the FIR and only his body features and age were mentioned therein. During the course of test identification parade, which according to mind of this Court, is of pivotal importance in the instant case in the peculiar scenario, firstly the prosecution witnesses mentioned in the FIR claiming to have seen the occurrence, had not joined test identification parade while the person (Muhammad Iqbal complainant) who joined identification parade has not appeared during the course of trial. Moreover, the other witness (P.W.6) introduced by the prosecution for test identification parade was not mentioned in the crime report. Further the identification parade itself was not carried out in pursuance of the directions given by the superior courts of the country from time-to-time and also in sheer violation to the instructions enunciated
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in the High Court Rules and OrdeRs, The dummies associated during the identification parade were less in number and the identification parade was though supervised by a Judicial Officer but the names, body structures, religion, caste, height, age and body structures of the dummies were not brought in limelight, which is prerequisite for carrying out proper identification parade. So much so the same was carried out in an open place, which was accessible to everyone. Hence, in view of celebrated pronouncements of Sindh High Court (Karachi) rendered in the cases of Kirir v. The State (PLD 1996 Karachi 246) and Ghulam Akbar and others v. The State (2007 YLR 1506) the same is of least credence. Another crucial point, which is of prime importance in the instant case, is that the role of the accused was not mentioned during the test identification parade. Another significant aspect of this test identification parade is that it was carried out on 3-10-2001 but prior to conducting test identification parade, a press-conference was convened by SSP (Operations), Lahore on 21-9-2001; wherein not only the appellant was produced before the press rather his photographs…
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