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Petitioner: Muhammad Shahzad, etc. VS Respondent: The State etc.
Court Name: Lahore High Court Judge(s): Tariq Saleem Sheikh, Muhammad Ameer Bhatti Title: Muhammad Shahzad, etc. vs The State etc. Case No.:Murder Reference No.288/2019, Criminal Appeal No.54462/2019, Criminal
JUDGMENT
Reported As: 2022 LHC 6427 Result: Appeal Dismissed Judgment JUDGMENT MUHAMMAD AMEER BHATTI, CJ. Muhammad Hanif, Muhammad Ramzan, Muhammad Shehzad, Muhammad Imran, Muhammad Rizwan, Muhammad Naveed, Muhammad Ibraheem and Muhammad Shoban, were tried by the learned Additional Sessions Judge, Pattoki (Kasur), in case FIR No.496, dated 20.07.2015, in respect of offences under Sections 302, 148, 149, P.P.C. read with Sections 337-F(iii)/L(ii), P.P.C. (added later-on, on declaration of injuries of Shazia Bibi-injured), Police Station City Pattoki, District Kasur. The accused were convicted and sentenced vide judgment dated 28.06.2019, as under:- i) Muhammad Imran-appellant was sentenced to death with direction to pay compensation of Rs.300,000/- to the heirs of deceased under section 544-A, Cr.P.C. or in default of payment thereof to undergo simple imprisonment for six months; and ii) Muhammad Shehzad, Muhammad Rizwan and Muhammad Naveed were sentenced to life imprisonment with direction to pay compensation of Rs.100,000/- each to the heirs of deceased under section 544-A, Cr.P.C. or in default of payment thereof to undergo simple imprisonment for six months. They were extended the benefit of section 382-b, Cr.P.C. However, through the same judgment Muhammad Hanif alias Arif, Muhammad Ramzan, Muhammad Ibraheem and Muhammad Shoban co-accused were acquitted. Against the aforesaid judgment, conviction and sentences, Muhammad Shehzad, Muhammad Rizwan and Muhammad Naveed-appellants have filed Criminal Appeal No.54462/2019; Muhammad Imran-appellant has filed Criminal Appeal No.54463/2019 and; Muhammad Naveed-
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appellant has also filed Criminal Appeal No.56789/2019. Whereas Muhammad Yaseen- complainant filed Criminal Appeal No.54461/2019 challenging acquittal of Muhammad Hanif, Muhammad Ramzan, Muhammad Ibraheem and Muhammad Shoban and also filed Criminal Revision No.56788/2019 with the prayer to enhance the sentence of life imprisonment awarded to Muhammad Shehzad, Muhammad Rizwan and Muhammad Naveed to death sentence u/s 302(b), P.P.C. All these matter have been heard by us along with Murder Reference No. 288 of 2019 sent by the learned trial court u/s 374 Cr.P.C. seeking confirmation of the sentence of death passed by it against Muhammad Imran convict-appellant or otherwise. We propose to decide all these matters jointly through this consolidated judgment. 2. The Prosecution story as narrated in the FIR (Ex.PF/A) chalked-out on the complaint (Ex.PF) of the complainant-Muhammad Yaseen (PW-8) is detailed in Paragraph No.1 of the impugned judgment, which is reproduced as under in verbatim:- "Briefly sated facts necessary to be dilated upon for culminating the fate of this as per complaint Exh.PF are that on 19.07.2015 on Sunday, complainant alongwith his brother Intizar Hussain, Amanat Ali & Farooq Ahmed, (sons of Bashir Ahmed), Nazir & Qurban (sons of Haider), Rani Bibi and Shehnaz Bibi came at Jaguwala Chak No.4 in order to attend "Punchayat" because wife of complainant's brother Intizar Hussain, after quarrelling had come in the house of her parents at Jaguwala Chak No.4. A "Punchayat" was convened at the Dera of Sharif Lumberdar in this regard. The respectable of said "Punchayat" decided that Shazia Bibi will be sent with Intizar Hussain after 3/4 days and also demanded Rs.13,000/- as expenditures which were paid by the complainant on the spot and were returning back towards Kangan Pur on Carry "Dabba". When they reached Meer Kot Canal near Chunian then Shazia Bibi on the asking of his brother Shehzad made a phone call to the brother of complainant namely Intizar Hussain by saying that her parents have agreed to send her with him today and asked them to come back to took her alongwith children with them. On which, they again reached at the "Dera" of said Muhammad Sharif. Said Muhammad Sharif and his son Sarfraz also went with them in the house of in-laws of the brother of complainant. The wife of brother of complainant namely Shazia Bibi alongwith children were sent with them with their consent in carry "Dabba". At about 06:30 p.m. when complainant party reached at a distance of 50/60 feet from the house of accused persons then suddenly accused persons namely Shehzad, Imran, Shoban, Hanif, Ramzan, Rizwan, Ibraheem and Naveed alongwith four unknown accused persons armed with their respective weapons "Churras", "Sotas" and "Dandas" emerged from the sugarcane crop in front of the Carry "Dabba". An unknown accused to whom they can identify raised Lalkara to the effect that Intizar Hussain and the members of "Punchayat" who had come with him would not be left alive. On which, all the said accused persons de-boarded the complainant party from Carry "Dabba" and grappled with them and the accused persons after dragging the complainant's brother took him in sugarcane crop, two unknown accused persons caught hold the legs of the brother of complainant brother and an unknown accused caught hold him from his head and got him lying on the ground. Accused Imran made a blow with his `Churra' and cut the throat of the brother of complainant, accused Shehzad made a `Churra' blow which hit underneath the right armpit of the brother of complainant, accused Shoban made a "Churra" blow which hit on the right flank of brother of complainant, accused Hanif made a `Churra" blow on the forehead of the brother of complainant, accused Rizwan made a "Churra' blow which hit on the front side of the belly of the brother of complainant, accused Ibraheem made a `Churra' blow which hit between his chest and belly, accused Naveed made a `Churra' blow which hit on the belly of brother of complainant. Later on accused Muhammad Ramzan and Muhammad Imran after leaving the brother of complainant caught hold the wife of the brother of complainant namely Shazia Bib. Accused Muhammad Ramzan after caught holding Shazia Bibi from her hair made a `Churra' blow which hit in front of her chest between the breasts. Accused Hanif threw down Shazia
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Bibi on the ground by saying that our honour has been at stake due to her act and made `Churra' blows which hit on her right breast and right armpit. Whereas remaining accused persons and unknown accused persons started beating the complainant party with their "Dandas" and "Sotas". Complainant party concealed themselves in sugarcane crop to save their lives. The whole occurrence was witnessed by the complainant and his companions. The motive behind the occurrence was that the brother of the complainant had contracted love marriage six years prior of the occurrence due to which accused party had grudge against the complainant party and committed this occurrence.". 3. All the accused/appellants, on commencement of trial, when formally charged pleaded innocence and claimed trial. Thirteen prosecution witnesses were produced to prove the guilt of the accused. Dr. Sadia Ashraf WMO (PW-3) and Dr. Dildar Mehboob (PW-4) provided medical evidence; Shabbir Hussain, S.I. (PW-12) and Muhammad Iqbal, S.I. (PW-13) conducted investigation of this case, whereas Muhammad Yaseen, complainant (PW-8), Shehnaz Bibi, (PW-9), Nazir Ahmed, (PW-10) furnished the ocular account. Muhammad Nawaz (PW-11) is the recovery witness of "Churras". Additionally, CW-1 Tayyab Mehmood, Record Keeper of THQ Hospital, Pattoki, also was examined to produce the record of mortuary pertaining to the year 2015. Given-up PWs were namely Amanat Ali son of Bashir Ahmed, Rani Bib wife of Qurban and Sardar Muhammad Yaseen son of Dais Muhammad being unnecessary, and further, PW namely Shazia Bibi widow of Intizar Hussain was given-up as won over being related to the accused party reflecting from the statement of learned ADPP. The learned DDPP by tendering documentary evidence, report of PFSA (Ex.PT & Ex.PU), closed the prosecution evidence. 4. Upon the completion of the prosecution's evidence, the accused while recording their statements u/s 342, Cr.P.C. controverted the prosecution's allegations, however, despite consent failed to produce any evidence or appeared themselves u/s 340(2), Cr.P.C. to refute the prosecution's story and on culmination of trial proceedings recorded the conviction and sentence, mentioned in detail in paragraph one of this judgment. 5. The learned counsel representing the appellants in all three appeals, filed against their conviction and sentence, contended that while passing the impugned judgment the learned trial Court has not taken into consideration that the prosecution's story is a result of manipulations and consultation as admitted by the injured eye-witness namely Shehnaz Bibi while appearing as PW-9 that the complainant-Muhammad Yaseen (PW-8) moved application (Exh.PF) after consultation with all of them. It is further contended that six hours delay in the registration of FIR whereas distance from place of occurrence to Police Station was 05-Km, was also established from record; that the learned trial Court also overlooked the delay of 20-hours in conducting postmortem of deceased-Intizar Hussain, which facilitated/extended an opportunity to the complainant to lodge a false case against the appellants, as it was a blind murder, thus, the possibility of fabrication on the part of the complainant cannot be ignored; that the learned trial Court proceeded to convict and sentence the appellants while relying on the statements of PW-8, PW-9 & PW-10, who were closely related to the deceased being real brothers and sister-in-law (Bhabi), respectively, and their testimony could not be relied upon until and unless the same was supported by the other relevant factors; that the learned trial Court has brushed aside the defence plea that the appellants were not present at the spot and they were involved falsely merely on the basis of suspicion and hearsay evidence as they knew nothing about this blind murder; that the medical evidence contradicts the ocular version of the prosecution case; that the prosecution miserably failed to prove the factum of guilt against the appellants for the main reason that no independent witness was produced, in particular, Sharif Lumberdar and his son Sarfraz, therefore, the prosecution failed to prove the motive as well as occurrence; that the impugned judgment is the result of misreading and non-reading of material pieces of evidence inasmuch as material contradictions amongst the
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statements of the prosecution witnesses have been ignored; that the co-accused of the appellants namely Muhammad Shoban and Muhammad Ibraheem with specific role of inflicting Churra blows, in investigation, were found innocent, consequence whereof, challan/report u/s 173, Cr.P.C was submitted showing their names in column No.2, who although faced trial because of summoning them by the learned trial Court on application/complaint, yet they along with Muhammad Hanif and Muhammad Ramzan, who were also shown to have given Churra blows, were acquitted of the charge on the basis of the same set of evidence, in such eventuality, appellants conviction is not justified, hence, claimed acquittal by setting-aside the impugned judgment. 6. On the other hand, the learned counsels for the appellant/complainant in appeal challenging acquittal of respondents No.2 to 5 and revision petition seeking an enhancement of the sentence of the respondents No.2 to 4 (appellants in Crl. Appeal No.54462/2019), assisted by the learned Deputy Prosecutor General, supported the impugned judgment and contended that the prosecution proved its case including motive against the appellants beyond any shadow of doubt; that the FIR was registered with promptitude and the said fact rules-out any possibility of consultation as alleged by the appellants; that the medical evidence is completely in line with the ocular account furnished by PW-8, PW-9 & PW-10; that the learned trial Court convicted and sentenced the appellants on the basis of confidence inspiring evidence produced by the prosecution witnesses, who were subjected to lengthy cross-examination but they remained consistent/firm and deposed in line with the version of the prosecution without pointing-out anything contrary to the story in FIR as well as the report under Section 173, Cr.P.C.; that there is nothing on record to even prima facie suggest that aforesaid PWs were behaving under malice; that the PWs had no previous enmity to falsely depose against the appellant and keeping in view the number of injuries the other enemies could also be involved if the complainant party had any intention to falsely implicate the innocent persons as well and; that the prosecution evidence cannot be shattered for the reason that the PWs furnishing ocular account were closely related with the deceased; hence the three appeals may be dismissed and the sentence recorded by the learned trial court may be maintained. Lastly, the learned counsels prayed for enhancement of sentence of respondents No.2 to 4 while accepting Crl. Revision No.56788/2019 and, in consequence whereof, Crl. Appeal No.54461/2019 filed against acquittal of respondents No.2 to 5 therein, may be accepted and they be punished accordingly. 7. We have heard the learned counsels for the parties as well as the learned Deputy Prosecutor General and perused the record in the light of respective contentions of the parties. 8. The developed jurisprudence in criminal side demands construction of a case by the prosecution upon four pillars of evidence, which consist of: (i) ocular account; (ii) motive; (iii) medical; and (iv) recovery and to establish the guilt of the accused production of substantive piece of evidence in all its disciplines is necessary, and the lack thereof always damages the prosecution's case in securing conviction. The ocular evidence as we have inferred from reading of plethora of judgments of this Court as well as honourable Supreme Court is the most important/significant pillar of the prosecution's case, which shall be proved without any shadow of doubt because its trustworthiness/accuracy/purity/credibility and it being confidence inspiring, is enough to award conviction. Reliance is placed on "Muhammad Anwar v. The State" (1997 P.Cr.L.J. 321), "Imtiaz alias Taji and another v. The State and others" (2020 SCMR 287), "Muhammad Mansha v. The State" (2018 SCMR 772), "Muhammad Arshad v. The State" (2020 SCMR 2025) and "Zahid v. The
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State" (2022 SCMR 50). The relevant portions from the said pronouncements laying down the principles of ocular account are reproduced hereunder for facility of reference:- "1997 P.Cr.L.J. 321, supra, The touchstone in assessing and evaluating the evidence of eye-witnesses two important factors should be seriously taken into consideration i.e. (1) Whether in the circumstances of the case it was possible for the eye-witnesses to be present at the scene or their explanation for their presence at the place of occurrence could be accepted and (2) whether there was anything inherently improbable or unreliable in their evidence. The ocular evidence would carry convincing weight and create unswerving confidence, which was corroborated by the medical evidence and the motive relating to the occurrence. Such type of evidence is further strengthened if the F.I.R. was promptly lodged without giving any time for fabrication or inventing totally false story. It is true that there is no inflexible role that the statement of an interested or an inimical witness can never be accepted without corroboration. It is also true that interest and truth some times are so intermingled that those might go together and corroborated, therefore, is not always to be considered as a sine qua non for the acceptance of the evidence of such interested witnesses. The creditable value is to be attached even to such witnesses if their evidence is found free from doubt, infirmity or the possibility of the implication of wrong persons is excluded. Rule of prudence in such circumstances requires to find out whether a witness had seen the occurrence, could identify the culprits and was reliable enough to be believed without corroboration. It is also well- understood that the evidence of an interested witness was not like the evidence of an approver, which would need corroboration and abundant caution before its acceptance. The rule of caution cannot be confined to a water-tight compartment nor it can be kept in a straightjacket. In nutshell every case is to be evaluated and considered on its own merits because in human affairs, the facts and circumstances differ from place to place and mostly from time to time. 2020 SCMR 287, supra, The ocular account in this case was furnished by Tariq Ejaz (PW-10) and Meer Tahir (PW-11). Tariq Ejaz (PW-10) is the complainant of the case and is the real son of deceased Ejaz Ahmad. He has given sufficient explanation for his presence at the spot at the relevant time. 2018 SCMR 772, supra, Once the Court comes to the conclusion that the eye-witnesses had made dishonest improvements in their statements then it is not safe to place reliance on their statements. It is also settled by this Court that when ever a witness made dishonest improvement in his version in order to bring his case in line with the medical evidence or in order to strengthen the prosecution case then his testimony is not worthy of credence. The witnesses in this case have also made dishonest improvement in order to bring the case in line with the medical evidence (as observed by the learned High Court), in that eventuality conviction was not sustainable on the testimony of the said witnesses. 2020 SCMR 2025, supra, The ocular account in this case is supported by 02 injured PWs, the statements of the prosecution witnesses coincide with each other on salient features of prosecution version. The ocular account is corroborated by the medical evidence, recovery of hatchet further lends support to the prosecution case and during the course of investigation, the petitioner was found involved and his name was placed in column No.03 of the report under section 173, Cr.P.C. 2022 SCMR 50, supra, The whole prosecution case qua ocular account hinges upon the testimonies of these two witnesses. Amongst these two witnesses Mst. Shahida Bibi happens to be the victim of the occurrence. While making her statement in Court, she has narrated the whole occurrence in a
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very mature and natural manner touching the contents of the crime report on all aspects without any disconnection. 9. We have examined the evidence of the prosecution in terms of established principles of criminal jurisprudence and do not find the prosecution witnesses testimony credible, free of doubt, infirmity and exclusion of possibility of implication of wrong persons for the following reasons:-- i) All the three eye witnesses (PW-8, PW-9 & PW-10) were categorical/unanimous about returning of Mst. Shazia Bibi to her parents home along with her three children and obviously spent considerable time with them in peaceful manner. ii) They were also consistent about sending/permitting of Mst. Shazia Bibi to go with her husband (deceased) and their three children by the accused party (brothers of Shazia Bibi) without creating any hindrance. iii) PWs/witnesses did not claim absence of the accused persons at the time of departure of Mst. Shazia Bibi along with her children from her parents' house. iv) Testimony of all the PWs is silent about happening of any unpleasant act/action at the time of departure of Mst. Shazia Bibi along with her husband (deceased). v) The silence of PWs' testimony confirms the presence of the accused persons/appellants at the time of departure of Mst. Shazia Bibi with her husband from her parents' house on carry-dabba, how the accused persons could reach at the place of occurrence before them (complainant party) which was admittedly 50/60 feet away from the house of the accused party. vi) Neither any other vehicle was recovered from the place of occurrence nor its availability was alleged, therefore, the story articulated in the FIR does not appeal to be plausible and inherently improbable-unreliable, hence, creates doubt about its reality. vii) Allegedly, all the three witnesses had attended the convened Punchayat but did not utter a single word either about any vengeful attitude of the accused party or nurturing of motive, in the Punchayat proceedings. viii) It does not appeal to an ordinary man of prudence that if real brother of two young/strong men/witnesses was being slaughtered/attacked with Chhuras and they did not jump/make any effort to rescue him as none of the witnesses sustain any injury which is enough to hold/infer that either they were not present and the story was concocted after recovery of the dead-body or it was the height of callousness on their behalf. ix) It is quite strange and astonishing that none of witnesses made any effort even after occurrence to take/shift promptly the injured persons whatever condition may be to Hospital despite having, as alleged, their own vehicle (Carry-Daba). x) Admission of PW-10 in cross-examination about his reaching at the spot after police is very significant. xi) PW-4 Dr. Dildar Mehmood, Medical Officer, categorically admitted in his testimony about conducting of post-mortem at about 3:10 PM on 20.07.2015 although dead-body was received on 19.07.2015 at 10:30 PM because the police provided the complete documents (FIR and other police documents) necessary to conduct autopsy on 20.07.2015 at 3:00 PM; meaning thereby, FIR was lodged with delay of more than 18/20 hours, hence, facts and time mentioned in the FIR were not genuine. It is routine of police to keep the space in the daily diary and page in the FIR register book and after completing the preliminary investigation with connivance of the family of the deceased involves the accused party otherwise there was no justification for providing the FIR and other documents (police papers) with delay of 15/16 hours for conducting the postmortem. Twenty hours delay in conducting the post-mortem examination is sufficiently enough to draw an inference that neither the FIR was recorded nor relevant police papers were ready till that time and conducting post-mortem with such delay was fatal as held in case reported as, Ata Muhammad and another vs. The State (1995 SCMR 599) wherein it was held as under:-
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"We know by our experience that time of recording of F.I.R. is not always genuine. The police, after learning about the commission of the crime keeps the space in the daily diary (Roznamcha) and a page in the F.I.R. Register blank for incorporating therein the gist of the information, the factum of registration of the case and the detailed report subsequently, in the light of preliminary investigation made by it. Furthermore, in this case the F.I.R. was lodged by Bati eye-witnesses himself. So, his previous statement recorded in the F.I.R. does not come from any distinct source. It is well settled that a witness cannot corroborate himself by repeating the version before different persons on different occasions. The evidence at the trial cannot be corroborated or reinforced by proving that the witness had made a similar statement to a third party on a previous occasion. Mere repetition of a story will not give it any force or prove its truth." xii) The testimony of Investigating Officer/PW-12 also falsifies the prosecution story regarding prompt registration of case as he admitted in his cross-examination regarding shifting time of dead-body from the place of occurrence at about 01:00/01:30 a.m. (night) through Tractor-Trolley despite having Carry-Dabba. It is also cleared from his testimony about approaching of the police by the complainant to inform about occurrence through application at 12:15 a.m. (night). He further deposed that, "It is correct that neither complainant nor any of the witness deposed before me that they tried to rescue deceased Intizar Hussain when accused persons were inflicting injuries on his body. Neither the complainant nor any of the witness deposed before me that why they did not informed the police. Complainant and witness even not imparted any reasoning to me that why they did not took the then injured Intizar Hussain, Shazia Bibi and Shenaz Bibi to any hospital, inspite of the fact that as per their version they had a carry Daba with them at that time." Therefore, the evidence on this aspect of the case is artificial, hence, disbelieved. xiii) Police file is also silent about recording of any statement of a person from the locality regarding occurrence, holding of any Punchayat and presence of complainant party at the place of occurrence. Even during trial none of the…
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