Full Judgment Text & Judicial Ruling

2021 Y L R 52 [Lahore] Before Aalia Neelum, J JAVED IQBAL KHAN and 7 others---Appellants Versus The STATE and another---Respondents Criminal Appeal No. 1145 and Criminal Revision No. 738 of 2013, decided on 20th February, 2020. (a) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Chance witnesses--- Non-availability of justification for presence of witnesses at the time of preparing inquest report---Scope---Accused was charged that he and co-accused persons while armed with deadly weapons made firing upon the complainant party, brother of complainant was hit and died---Motive behind the occurrence was dispute over passage and water course---Record showed that the incident took place at 3.45 p.m. and the incident was reported to the police at 5.30 p.m. on the same day---Prosecution had claimed that the inquest report was prepared at 5.30 p.m. on the day of incident---Investigating Officer had mentioned the names of the persons who identified the dead body of deceased---Inquest report was not signed by any of the eye-witnesses or the complainant---Complainant and a witness had deposed that they were present at the police station when the inquest report of the dead body was prepared---If the complainant and witness were present at the police station at the time of preparation of the inquest report and actually the complainant had reported the incident at 5.30 p.m. and a witness met with the Investigating Officer, there was no reason why the details which were found missing from the inquest report should not have been there---Said fact outrightly suggested that the complainant was not present at the time when the inquest report was prepared---Said circumstances went to suggest that the FIR was ante time which got support from the testimony of Medical Officer, who conducted the post-mortem examination of the dead body of the deceased, as copy of FIR was not sent to the Medical Officer with other documents---Prosecution had not given any explanation as to why copy of the FIR was not sent to the Medical Officer along with other documents at the time of the post-mortem examination---Said circumstance revealed that till the time of the post-mortem examination, FIR was not in existence--- Circumstances established that the prosecution had not been able to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances. (b) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Ocular and medical evidence---Contradictions---Effect---Accused was charged that he and co-accused persons while armed with deadly weapons made firing upon the complainant party, brother of complainant was hit and died---Prosecution version was that the accused made fire shot which hit on the left side of the chest of the person of deceased---Site plan revealed that the distance between accused and deceased was eighty feet---Medical Officer deposed in his evidence that one metallic foreign body was recovered from left chest cavity, so from the careful scrutiny of the medical evidence, it was spelled out that one metallic foreign body was recovered, which showed that fire arm projectile was fired from near contact range on the body of the deceased---Said aspect further contradicted the ocular account creating serious dents on the prosecution version, going to its roots---Circumstances established that the prosecution had not been able to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances. Muhammad Tufail v. The State NLR 2002 Criminal 636 rel. (c) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Motive was not proved---Scope---Accused was charged that he and co-accused persons while armed with deadly weapons made firing upon the complainant party, deceased was hit and died---Record showed that motive set up by the prosecution in the FIR and private complaint was that parties were having dispute over water Khal and passage---Complainant deposed during the cross-examination that no application was submitted to the relevant authorities regarding dispute over water course---No application was submitted to the Sub-Division Collector or District Collector regarding the passage---Witness had also took the same stance as alleged by the complainant---Investigating Officer deposed during cross-examination that complainant party did not produce any document showing that they had filed any suit or application in the Revenue Department or Irrigation Department to prove motive behind the occurrence---Complainant had admitted that land of the accused party as well as their land was irrigated through same water khal---Admittedly, on the day of occurrence, complainant party had no turn of water according to warrabandi---Prosecution, in circumstances, remained unable to connect the accused with the crime and even the prosecution case in that regard was vague and could hardly inspire confidence---Motive, as alleged, was an afterthought and had not been attributed to the accused, which as alleged could not be considered against the accused, in circumstances--- Circumstances established that the prosecution had not been able to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances. Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142 rel. (d) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence from accused---Reliance---Scope---Accused was charged that he and co-accused persons while armed with deadly weapons made firing upon the complainant party, deceased was hit and died---Weapons recovered from the accused were of no consequence as same were not sent for forensic examination to the Forensic Science Agency---Appeal against conviction was allowed, in circumstances. [p. 63] I (e) Criminal trial--- ----Appreciation of evidence---Principle---If evidence of the prosecution is disbelieved qua major portion of the accused persons, it could not be believed qua the other in absence of strong corroboration. Akhtar Ali and others v. State 2008 SCMR 6; Sarfraz alias Sappi and 2 others v. The State 2000 SCMR 1758 and Iftikhar Hussain and others v. The State 2004 SCMR 1185 rel. Ch. Mujtaba Hassan Tatla, Naseem Ullah Khan Niazi, Muhammad Amir Masood Khan and Aftab Ahmad Toor for Appellants Nos. 2 to 8. Ms. Noshe Malik, Deputy Prosecutor General for the State. Zafar Iqbal Malik for the Complainant. Date of hearing: 20th February, 2020. JUDGMENT AALIA NEELUM, J.---Javed Iqbal Khan, Zahid Iqbal Khan, son of Zareef Khan, Najeeb Ullah son of Ghulam Muhammad, Sami Ullah son of Khan Baig, Wazeer Khan and Hidayat Khan sons of Jehangir, Muhammad Aslam son of Wazeer Khan and Sher Abbas Khan son of Abdul Sattar Khan, all Pathan Maulana by Caste and resident of Wandah Jehangir Khelanwala, Dakhli Sawance, District Mianwali, the appellants along with their co-accused, Ghulam Muhammad and Manzoor Khan (since acquitted) were involved in a private complaint registered under Sections 302, 324, 148, 149, P.P.C., at Police Station, Pai Khel, District Mianwali in case FIR. No.09-2010, dated 12.02.2010, offence under Sections 302, 324, 148, 149, P.P.C., registered at Police Station, Pai Khel, District Mianwali and were tried by the learned Additional Sessions Judge, Mianwali. The learned trial court seized with the matter in terms of judgment dated 23.09.2013, convicted the appellant No.1-Javed Iqbal Khan under Section 302(b), P.P.C. and sentenced him to imprisonment for life with the direction to pay compensation of Rs.1,00,000/- to the legal heirs of the deceased and in case of default thereof, the appellant No.1-Javed Iqbal Khan would further suffer simple imprisonment for six months. Whereas the appellants Nos.2 to 8, Zahid Iqbal Khan, Najeeb Ullah, Sami Ullah, Wazeer Khan, Hidayat Khan, Muhammad Aslam and Sher Abbas Khan were convicted under Section 324, P.P.C. and each of them was sentenced to suffer five years R.I with the direction to pay fine of Rs.10,000/-each and in case of default thereof, each of them would suffer simple imprisonment for three months. The benefit of Section 382-B, Cr.P.C., was also extended in favour of the appellants. 2. Feeling aggrieved by the judgment of the learned trial court, the appellants have assailed their conviction by filing instant Criminal Appeal No.1145 of 2013 whereas the complainant-Master Sher Muhammad Khan (PW-8) being dis-satisfied with the impugned judgment dated 23.09.2013, preferred a Criminal Revision No. 738 of 2013 for enhancement of sentence of accused persons. As both matters are arising out of one and the same judgment, therefore, they are being disposed of through a single judgment. 3. The prosecution story as alleged in the private complaint (Ex.PU) filed by Master Sher Muhammad Khan (PW-8) is that on 12.02.2010, at about 03:45 p.m, the complainant (PW-8) along with Asmat Ullah, Mehr Muhammad Khan and Khan Bahadur Khan (since dead) was going to see the wheat crop and when they reached the distance of 25/30 feet from their house, suddenly the accused Javed Iqbal armed with rifle, Zahid Khan armed with gun 12 bore, Ghulam Muhammad armed with gun 12 bore, Najeeb Ullah Khan armed with Kalashnikov, Sami Ullah armed with Kalashnikov, Wazir Khan armed with gun 12 bore, Hadayat Ullah armed with gun 12 bore, Zarif Khan armed with gun 12 bore, Muhammad Aslam armed with pistol 30 bore, Sher Abbas armed with Kalashnikov and Manzoor Khan armed with gun 12 bore came there by raising lalkaras that they would be taught a lesson for closing their water course and thereafter the accused-Javed Iqbal fired at Khan Bahadur Khan (since dead) which hit in his chest and as a result whereof, Khan Bahadur Khan (since dead) fell down and thereafter all co-accused persons started firing upon complainant and prosecution witnesses, who saved their lives by running and entering their houses. The fires of the accused persons hit on the walls of their houses and then accused persons went to their houses by making fires. The deceased, Khan Bahadur was taken to DHQ Hospital, Mianwali in injured condition, who succumbed to the injuries on the way. The alleged occurrence was witnessed by Asmat Ullah and Mehr Muhammad Khan. 4. The motive behind the occurrence was dispute over passage and water course, due to which alleged occurrence took place. 5. After the occurrence, the complainant (PW-8) reported the matter to police, whereupon FIR was chalked out. The complainant being dissatisfied with the investigation, as the Investigating Officer being in league with the accused persons, conducted defective investigation and declared two accused persons innocent filed private complaint. On 03.05.2012, learned trial court formally charge sheeted the accused persons to which they pleaded not guilty and claimed trial. The prosecution in support of its version produced as many as fifteen (15) prosecution witnesses, whereas remaining prosecution witnesses were examined as CW-1 and CW-2. 5(sic). After hearing the arguments advanced by the learned counsel appearing on both sides, the learned trial court, while evaluating the evidence available on record, found the version of the prosecution as correct beyond any shadow of doubt, which resulted into conviction of the appellants in the above stated terms. 6. I have heard the arguments advanced by the learned counsel for the parties and have minutely perused the record available on the file. 7. The prosecution case is that on 12.02.2010 at 03:45 p.m., Master Sher Muhammad (PW-8)-the complainant, Mehr Muhammad (PW-9), Asmat Ullah (given-up PW) along with Khan Bahadar (the deceased) were going to look after their wheat crop, when alleged occurrence took place. Wherein Javed Iqbal accused-appellant No.1 made fire from his rifle, which hit on the left side of the chest of Khan Bahadar (the deceased). They took Khan Bahadar to DHQ Hospital, Mianwali who died on the way to the hospital. Whereupon, the complainant brought back the dead body of Khan Bahadar to the Police Station Pai Khel. Admittedly, Master Sher Muhammad (PW-8) the complainant, Mehr Muhammad (PW-9) and Asmat Ullah (given-up PW) did not receive any injury. Master Sher Muhammad (PW-8)-the complainant informed Aftab Ahmad, SI (CW-1) about the occurrence at 5:30 p.m. through oral complaint at Police Station Pai Khel on 12.02.2010 and police registered the case FIR No. 9 of 2010, under sections 302/148/149, P.P.C. at the Police Station Pai Khel, at 5:30 p.m. Though, the incident had taken place at 03:45 p.m. on 12.02.2010, whereas the police station was eight (8) kilometers away from the place of occurrence. Aftab Ahmad, SI (CW-1) after registration of endorsing police proceedings under the FIR, which was Ex.PA and thereafter prepared injury statement (Ex.PM/2) and inquest report (Ex.PM/3) of the dead body of the deceased-Khan Bahadar which was lying out side police station. First of all I have to examine whether the FIR in this case was ante-dated. At the cost of repetition, as mentioned above incident had taken place at 03:45 p.m. on 12.02.2010 and the incident was reported to the police at 5:30 p.m. on 12.02.2010 whereon FIR was lodged. The first circumstance which raises doubt about lodging of the FIR by Master Sher Muhammad (PW-8)-the complainant at the time claimed by the prosecution is that in the inquest report (Ex.PM/3), which was prepared at 5:30 p.m. on 12.02.2010, Aftab Ahmad, SI (CW-1) has mentioned the names of the persons who identified the dead body of Khan Bahadar-deceased as Shehbaz Khan (PW-4) and Noor Muhammad (given up PW). The inquest report (Ex.PM/3) is not signed by any of the eye-witnesses or the complainant, although the complainant and Mehr Muhammad (PW-9) deposed that they were present at the police station, which shows that witnesses were present at the police station when inquest report of the dead body was prepared. If the complainant and Mehr Muhammad (PW-9) were present in the police station at the time of preparation of the inquest report (Ex.PM/3) and had actually the complainant reported the incident at 5:30 p.m. and Mehr Muhammad (PW-9) met with the investigating officer, there is no reason why the details which I have found missing from the inquest report (Ex.PM/3) should not have been there. This out rightly suggests that Master Sher Muhammad (PW-8)-the complainant was not present at the time inquest report in this case was prepared. Master Sher Muhammad (PW-8)-the complainant these circumstances to my mind goes to suggest that the FIR was ante time. It also gets support from the testimony of the Doctor, who conducted the postmortem examination of the dead body of the deceased-Khan Bahadar as copy of the FIR was not sent to the Doctor with other documents sent by the police. Dr. Ihsan-ul-Haq (PW-3) deposed during cross-examination that: "---I also signed the injury statement Ex.P.M/2 and inquest report Ex.P.M/3---" One of the external check that whether the FIR was lodged on the time as alleged, is the sending of the copy of the FIR along with the dead body and its reference in the inquest report. The absence of details in the inquest report of the FIR may be indicative that the FIR was not registered at the time mentioned therein and the FIR was recorded later on after due deliberations and consultation. In the inquest report (Ex.PM/3) it was mentioned as under:- The prosecution has not given any explanation as to why copy of the FIR was not sent to the Doctor along with other documents at the time of the postmortem examination of the dead body of Khan Bahadar. This is strong circumstance, which reveals that till the time of the postmortem examination FIR was not in existence. 8. Another circumstance equally important and which cannot go un-noticed in this regard is to the effect that in the FIR (Ex.PA) and private complaint (Ex.PU) the complainant-Master Sher Muhammad (PW8) has specifically mentioned that:- I have noticed that in column No.2 of the inquest report (Ex.PM/3) it was mentioned that death took place at Wandha Jhangir Khel Khelanwala, which is place of occurrence. Whereas, it is prosecution case that death took place on the way to DHQ Hospital, Mianwali. It appears that Master Sher Muhammad (PW-8)-the complainant and Mehr Muhammad (PW-9) have suppressed the genesis of the occurrence and facts. This also created doubt about the time of occurrence and place were the deceased took his last breath. I have also noticed that Dr. Ihsan-ul-Haq (PW-3) is the Doctor who conducted the postmortem on the dead body of Khan Bahadar. During examination-in-chief he (PW-3) deposed that he conducted autopsy at 9:30 p.m. on 12.02.2010. During cross-examination, he (PW-3) deposed that as soon as dead body and police papers were handed over to him, he conducted the postmortem without any delay on his part. Dr. Ihsan-ul-Haq (PW-3) deposed during his cross-examination that: "---It is correct that in column No. "when brought village, Thana, District" is vacant. As soon as the dead body was brought in the hospital at 9:30 p.m, I started postmortem upon the dead body. It is correct that in the column of time between injury and death, I first wrote immediate but then I crossed (cut) the word immediate and mentioned within one hour---" Dr. Ihsan-ul-Haq (PW-3) stated that he conducted postmortem of the dead body of Khan Bahadar at 9:30 p.m. on 12.02.2010. It is the case of the prosecution that Aftab Ahmad, SI (CW-1) handed over the dead body of Khan Bahadar to Shafi Ullah, 576/Constable (PW-13) to take the same to mortuary at DHQ Hospital, Mianwali for postmortem examination. Shafi Ullah, 576/Constable (PW-13) during cross -examination deposed that:- "---As soon as the dead body was handed over to me I shifted the dead body to hospital for postmortem. The doctor also immediately conducted postmortem of the dead body. Almost thirty to forty minutes were consumed to reach in the hospital from police station" Accordingly, Dr. Ihsan-ul-Haq (PW-3) has categorically stated that "time between death and postmortem was 5 to 12 hours". Coming to the deposition of Master Sher Muhammad (PW-8)-the complainant, paternal uncle of the deceased, who deposed during cross-examination that:- "---We looked after our injured brother after 20/25 minutes and arranged our vehicle to carry him to the hospital. When we gave support to my brother the witnesses had bloodstained upon their and (sic) hands, however, our clothes remained clean. It did not show the bloodstained hands to the I.O. The vehicle/Datsun which owned by my nephew Habib Ullah Khan. I did not remember the registration number of Datsun. The Datsun came at the place of occurrence after 30 minutes. We were bringing injured Khan Bahadur Khan to DHQ Hospital Mianwali yet we have not reached at Mianwali Kalabagh Road our brother Khan Bahadur Khan succumbed to the injuries---The injured Khan Bahadur Khan was on the cot and cot was put on the rear portion of Datsun. Some blood was present on the cot however no blood dropped at Datsun. I, Asmat Ullah Khan and Mehr Muhammad Khan were present in the Datsun along with injured" Mehr Muhammad (PW-9) deposed during cross-examination that:-- "---After thirty minutes of occurrence we shifted the injured (later on deceased) for hospital. The injured/Bahadur Khan was laid down on the floor of Datsun, again stated that the injured was on cot and cot was kept on the rear side of Datsun. The blood of deceased dropped on the cot and Datsun. We showed the Datsun to police stained with blood. My hands were also stained with blood. I showed my hands to police but I can not say whether police saw my bloodstained hand or not. Police did not interrogate me in the police station when dead body of deceased was carried to police station. The police only registered FIR on the statement of Master Sher Muhammad. The police saw the dead body in the police station in my presence. After registration of the FIR the police directed us to go home and we went to our home---" Whereas, Aftab Ahmad, S.I. (CW-1) deposed during cross-examination that, "---No Datsun bloodstained was produced to me upon which injured/deceased was carried to the hospital---" 9. There are material contradictions between the statements of these two witnesses i.e. Master Sher Muhammad (PW-8)-the complainant and Mehr Muhammad (PW-9). Admittedly, Master Sher Muhammad (PW-8)-the complainant and Mehr Muhammad (PW-9) were chance witnesses. Master Sher Muhammad (PW-8)-the complainant, paternal uncle of the deceased, deposed during cross-examination that:- "---On the day of occurrence, I was performing my duties as Incharge Headmaster Government Primary School Dilasa Khan Wala. On the day of occurrence, we all PWs went to the house of Khan Bahadur deceased. Volunteered his grandson was ill and we went to see him. I did not remember that I told this fact to the I.O. or not that grandson of was ill---It is correct that I had mentioned in my private complaint Ex.PU that I along with Asmat Ullah Khan Mehr Muhammad Khan and Khan Bahadur were going to see wheat crop from house--It is correct that Mehr Muhammad Khan is a civilian employee in PAF at Mianwali. Our Wandha is at a distance of 20/25 K.Ms from PAF Base Mianwali. It is correct that at the time of occurrence Mehr Muhammad Khan also resided at Muslim Colony, Mianwali City. Volunteered he had got a rented house at Muslim Colony and he also resided at Wandha Jahangir Khelanwala---It is correct that on the day of occurrence Mehr Muhammad Khan was not on leave. He was on duty likewise I was also not on leave. Volunteered Mehr Muhammad Khan daily got to his duty---" Mehr Muhammad (PW-9) deposed during cross-examination that:-- "I am serving in PAF for the last 36 years---We did not show that wheat crop to the I.O. to which were we going to see---The police reached at the place of occurrence at 7:30 p.m---" Even testimony of both the related witnesses i.e. Sher Muhammad (PW-8)-the complainant and Mehr Muhammad (PW-9) being not in accord with the medical evidence itself is sufficient to disbelieve their testimony so far as occurrence is concerned. I have further noticed that Doctor Ihsan-ul-Haq (PW-3) who conducted the postmortem examination had noted that rigor mortis were present. He (PW-3) in his evidence had stated that:- "---The rigor mortis starts after four hours of death---The period of first fallacid remains for four hours. Vanished of the rigor mortis starts from head side and come to lower side. Rigor mortis which searched from lower limbs and going to upper limbs almost took five to 12 hours in the present case. Upper limbs means the arms, from shoulder to fingers. I assessed five to 12 hours---" If I apply the yardstick as spoken by Dr. Ihsan-ul-Haq (PW-3) the death must have occurred prior to 5:30 p.m. and between 09:30 a.m. on 12.02.2010. It indicated that the incident did not take place as stated by the prosecution. This also created doubt about the time of occurrence and the entries in item Nos.11, 12 and 13 of the inquest report (Ex-PM/3) were left blank, which would show that witnesses are unreliable and not creditworthy. 10. At the cost of repetition, I may mention here that as per prosecution version, the appellant made fire shot which hit on the left side of the chest on the person of Khan Bahadur Khan-deceased. On perusal of the site plan (Ex.PL and Ex.PL/1) it reveals that the distance between points "1" and "2" is 80 feet. Moreover, Doctor Ihsan-ul-Haq (PW-3) deposed in his evidence that:- "---One metallic foreign body was recovered from left chest cavity, sealed in a box, signed and handed over to the police---" So from the careful scrutiny of the medical evidence, it is spelled out that one metallic foreign body was recovered, which shows that fire arm projectile fired from near contact range on the body of the deceased which aspect further contradicts the ocular account creating serious dents on the prosecution version, going to its roots. Reliance is placed on the ratio decidendi of august Supreme Court of Pakistan in the case of "Muhammad Tufail v. The State" (PLD 2002 SC 786) wherein it was held as under:-- "Ocular evidence would be reliable when there are neither material discrepancies nor contradictions between ocular and medical evidence." Similar view was…

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