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Petitioner: The State VS Respondent: Haq Nawaz
Court Name: Lahore High Court Judge(s): Raja Shahid Mehmood Abbasi, Sadiq Mahmud Khurram Title: The State vs Haq Nawaz Case No.: (1) Murder Reference No.86 of 2017 (2) Criminal Appeal No. 520-J of 2018 Date of Judgment:2021-03-30 Reported As: 2021 LHC 841 Result: Appeal dismissed
JUDGMENT
JUDGMENT SADIQ MAHMUD KHURRAM, J. Haq Nawaz son of Ghulam Haider (convict) was tried by the learned Sessions Judge, Dera Ghazi Khan in case FIR No. 82 of 2015 dated 26.04.2015 registered at Police Station Shah Sadar Din, District Dera Ghazi Khan, in respect of an offence under section 302 PPC for committing the Qatl-i-Amd of Ghulam Sarwar son of Allah Baksh (deceased). The learned trial court vide judgment dated 11.05.2017, convicted Haq Nawaz son of Ghulam Haider (convict) and sentenced him as infra: Haq Nawaz son of Ghulam Haider: Death under section 302(b) PPC as Tazir for committing Qatl-i-Amd of Ghulam Sarwar son of Allah Baksh (deceased) and directed to pay Rs.500,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased, in case of default thereof, the convict was directed to undergo further six months of simple imprisonment for the default of payment of fine. The convict was ordered to be hanged by his neck till dead. 2. Feeling aggrieved, Haq Nawaz son of Ghulam Haider (convict) lodged Criminal appeal No.520-J of 2018 through jail assailing his conviction and sentence. The learned trial court submitted Murder Reference No.86 of 2017 under section 374 Cr.P.C. seeking the confirmation or otherwise of the sentence of death awarded to the appellant namely Haq Nawaz son of Ghulam Haider . We intend to dispose of the Criminal appeal No.520-J of 2018 and the Murder Reference No.86 of 2017 through this single judgment. 3. Precisely , the facts necessary , as divulged through the statement of Mahboob Hussain (PW-7), the complainant of the case, are as under:- "On 26.04.2015 at about 2.30 P.M I alongwith my brothers Ghulam Sarwar , Ghulam Asghar and Riaz Hussain was present and working on wheat thresher near the house of Ghulam Sarwar . In the meantime Haq Nawaz accused (present in court), my Bahnoi came there on motor bike while armed with pistol 30-bore. Accused Haq Nawaz stopped the motor cycle. Accused Haq Nawaz took out pistol and made straight fire upon Ghulam Sarwar by
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saying that he would teach lesson to Ghulam Sarwar for forbading him from his house. The fire made by accused Haq Nawaz (present in court) hit on the chest near the doula. After making fire shot, accused Haq Nawaz fled away towards west leaving his motor cycle at the place of occurrence. We attempted to step forward upon which accused extended threats that if anyon e would come near him will be dealt with in the same manner . After receiving the fire shot Ghulam Sarwar fell on the ground. We made call to Resc ue Service 1122 which reached Shah Sadar Din and we took Ghulam Sarwar to Trauma Center , D.H.Q Hospital, D.G. Khan. Ghulam Sarwar Succumbed to the injuries in Trauma Center , D.G Khan. The police reached Trauma Center , DHQ Hospital, D.G.Khan and recorded my statement Ex.P.G which was read over to me and I affixed my thumb impression in token of its correctness. The motive behind the occurrence was that Ghulam Sarwar forbade accused Haq Nawaz from his home and due to this grudge accused Haq Nawaz (present in the court) committed the murder of my brother Ghulam Sarwar deceased. On 3.5.2015, I alongwith Asghar joine d the investigation. During investigation accused Haq Nawaz made disclosure in our presence that he could get recovered the weapon of offence. So accused Haq Nawaz while in custody got recovered pistol 30- bore P-4 from a residential room lying in an iron box situated at Chah Nai Wala Mouza Sheru Dasti which was made into a sealed parcel and taken into possession vide recovery memo Ex.P.H, attested by me and Ghulam Asghar PW . I.O recorded my statement." 4. After the formal investigation of the case, the report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court, wherein the appellant namely Haq Nawaz son of Ghulam Haider was sent to face trial. The learned trial court framed the charge against the accused on 25.07.2015, to which the accused pleaded not guilty and claimed trial. 5. The prosecution in order to prove its case, got statements of as many as ten witnesses recorded. The ocular account of the incident was furnished by Mahboob Hussain (PW-7) and Riaz Hussain (PW-8). Khuda Bakhsh, ASI (PW-2) stated that on 26.04.2015 he recorded the formal FIR (Exh.PD).Muhammad Umar (PW-3) stated that on 26.04.2015 he had identified the dead body of the deceased at the time of its postmortem examination and in his presence the Medical Officer also handed over the last worn clothes of the deceased to the police official. Muhammad Nawaz, 362/HC (PW-4) stated that on 03.05.2015 Ghulam Akbar , SI (PW-10), the Investigating Officer of the case, handed over to him a sealed parcel said to contain a pistol for its safe custody which on 04.05.2015 he handed over the said sealed parcel to Shahid Iqbal 604/HC (PW-5) for its onward transmission to the office of Punjab Forensic Science Agency , Lahore. Muhammad Akhtar , Patwari (PW-6) prepared the scaled site plan of the place of occurrence (Exh.PF). Mushtaq Ahmad 328/HC (PW-9) stated that on 26.04.2015 Ghulam Akbar , SI (PW- 10) handed over to him two sealed parcels said to contain blood stained earth and an empty which on 04.05.2015 he handed over the said parcel to Shahid Iqbal 604/HC (PW-5) for their onward transmission to the office of Punjab Forensic Science Agency , Lahore. Ghulam Akbar , SI (PW-10) investigated the case from 26.04.2015 till 14.05.2015, arrested the appellant on 30.04.2015 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court. 6. The prosecution also got Dr. Muhammad Junaid Asghar (PW-1) examined, who on 26.04.2015 was posted as Medical Officer at RHC Shah Sadar Din, District Dera Ghazi Khan and on the same day conducted the postmortem examination of the dead body of Ghulam Sarwar son of Allah Baksh (deceased). Dr. Muhammad Junaid Asghar (PW-1), on examining the dead body of Ghulam Sarwar son of Allah Baksh (deceased) observed as under: "Entry Wound. 1. A lacerated wound of about 0.5 x 0.5 cm, circular , inverted margins, carbon soot round the wound, going very deep associated with frank bleeding on left anterior axillary fold of armpit, lateral aspect of left upper chest. Exit Wound. 2. A lacerated wound of about 1.5 x 0.75 cm everted margins, bleed profusely on left side of back, approximately 14-16 cm above scaral bone. Corresponding holes present on clothes. As this was a case of fire arm injury and it damaged the vital organ i.e. left lung and its associated blood vessels, due to hammorhage, blood loss, hypovolemia (sic) death occurred.
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The probable time between the injuries and death was 5 to 10 minutes while between death and postmortem was 4 to 5 hours." 7. On 22.11.2016, the learned DPP gave up the prosecution witness namely Ghulam Akbar son of Muhammad Bakhsh as being unnecessary and on 13.02.2017 the learned DPP gave up the prosecution witnesses namely Ghulam Asghar and Ghulam Akbar as being unnecessary . On 21.03.2017 the learned DPP closed the prosecution evidence after tendering in evidence the report of Punjab Forensic Science Agency , Lahore regarding the blood stained earth (Exh.PO) and the report of Punjab Forensic Science Agency , Lahore regarding the comparison of empty and the recovered Pistol (Exh.PP). 8. After the closure of prosecution evidence, the learned trial court examined the appellant namely Haq Nawaz son of Ghulam Haider under section 342 Cr.P.C. and in answer to the question why this case against you and why the PWs have deposed against you, he replied that he was innocent and had been falsely involved in the case on the basis of suspicion. The appellant namely Haq Nawaz son of Ghulam Haider opted not to get himself examined under section 340(2) Cr .P.C. and did not adduce any evidence in his defence. 9. On the conclusion of the trial, the learned Sessions Judge, Dera Ghazi Khan , convicted and sentenced the appellant as referred to above. 10. The contention of the learned counsel for the appellant precisely is that whole case is fabricated and false and that the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence. Learned counsel for the appellant in support of this appeal, further contended that the story of the prosecution mentioned in the F.I.R., on the face of it, was highly improbable and the reason assigned by the complainant and the eye-witnesses for being present at the place of occurrence was without any justification. He further contended that the statements of Mahboob Hussain (PW-7) and Riaz Hussain (PW-8) were not worthy of reliance. The learned counsel for the appellant further argued that the recovery was full of procedural defects, of no legal worth and value and result of fake proceedings. The learned counsel for the appellant finally submitted that the prosecution has totally failed to prove the case against the accused beyond the shadow of doubt. 11. On the other hand, the learned Deputy Prosecutor General contended that the prosecution proved its case beyond the shadow of doubt by producing independent witnesses. The learned Deputy Prosecutor General further argued that the deceased died as a result of injuries suffered at the hands of the appellant. The learned Deputy Prosecutor General further contended that the medical evidence also corroborated the statements of Mahboob Hussain (PW-7) and Riaz Hussain (PW-8). The learned Deputy Prosecutor General further argued that the recovery of the pistol (P-4) from the appellant also corroborated the ocular account. The learned Deputy Prosecutor General contended that there was no occasion for the prosecution witnesses to substitute the real offender with the innocent in this case. Lastly , he prayed for the rejection of the appeal. 12. We have heard the learned counsel for the appellant, the learned Deputy Prosecutor General and with their assistance perused the record and evidence recorded during the trial. 13. The whole prosecution case orbits around the statements of Mahboob Hussain (PW-7) and Riaz Hussain (PW- 8). These witnesses namely Mahboob Hussain (PW-7) and Riaz Hussain (PW-8) were related to each other and the deceased. Their relationship with the deceased is on record. The deceased namely Ghulam Sarwar son of Allah Bakhsh was the brother of Mahboob Hussain (PW-7) and the paternal cousin of Riaz Hussain (PW-8). Admittedly , the appellant namely Haq Nawaz was married to the sister of the deceased since the last 8/9 years prior to the occurrence. Mahboob Hussain (PW-7) and Riaz Hussain (PW-8) both explained their presence at the place of occurrence categorically . We have noted that the prosecution witnesses namely Mahboob Hussain (PW-7) and Riaz Hussain (PW-8), in a very natural and forthright manner , narrated the incidence and gave each and every detail of the same. More importantly , the occurrence took place inside the agricultural land belonging to Mahboob Hussain (PW-7) and the deceased at about 02.30 p.m and the presence of Mahboob Hussain (PW-7) and Riaz Hussain (PW-8) at that time, inside their own agricultural land, just in front of their houses, cannot be doubted and was, but natural. Both the witnesses namely Mahboob Hussain (PW-7) and Riaz Hussain (PW-8) explained their
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arrival at the place of occurrence and also the reason for their presence there. Mahboob Hussain (PW-7) further explained during cross-examination as under:- "There is distance of about 3/4 karams between my house and the house of these witnesses ............. I and Ghulam Sarwar deceased were living in the same house. Our 5/6 bighas land is situated near out house which was in the name of our father . Some land is situated at a distance of 10/15 karams from our house whereas other part of land is situated at one K.M. One bigha is situated near our house. Ghulam Sarwar called Asghar and Riaz from their houses at about 12-30 after noon. The wheat crop was of 5/6 bighas which had been gathered in one place." Similarly , Riaz Hussain (PW-8) also explained that his house was adjacent to the house of complainant and he along with the witnesses and the deceased were working at the place of occurrence before the arrival of the appellant. We have also perused the scaled site plan of the place of occurrence (Exh.PF) as prepared by Muhammad Akhtar , Patwari (PW-6) and the rough site plan of the place of occurrence (Exh. PN) as prepared by Ghulam Akbar , SI (PW-10), the Investigating Officer of the case. The perusal of the said site plans of the place of occurrence (Exh.PF and Exh.PN) reveals that the presence of the witnesses has been clearly marked in the same and it has been mentioned in the same that the occurrence took place in the land belonging to Ghulam Sarwar (deceased). The perusal of the said site plans of the place of occurrence (Exh.PF and Exh PN) further reveals that the land cultivated by Riaz Hussain (PW-8) has also been marked in the same, whereas the house of the complainant namely Mahboob Hussain (PW-7) and the deceased has also been clearly identified. This evidence proves that not only both the witnesses Mahboob Hussain (PW-7) and Riaz Hussain (PW-8) were present at the place of occurrence, at the time of occurrence but that they had also witnessed the occurrence which had taken place inside their own cultivated land. The perusal of the statements of the prosecution witnesses also reveals that no barrier existed between the appellant and the witnesses which could have caused any hurdle in enabling the witnesses to view the occurrence. There existed no hindrance between the appellant and the line sight of the witnesses. The defence could not prove that the said witnesses namely Mahb oob Hussain (PW-7) and Riaz Hussain (PW-8) were not present at the place of occurrence at the time of occurr ence. The defence even did not challenge the place of occurrence as being not the same as stated by the witnesses. The appellant was previously known to both the witnesses namely Mahboob Hussain (PW-7) and Riaz Hussain (PW-8) and his identification by the witnesses in the circumstances cann ot be doubted or even put to question with any success. Admittedly , as mentioned above, the appellant namely Haq Nawaz was married to the sister of the deceased since the last 8/9 years prior to the occurrence. In this manner , the identity of the appellant by the witnesses is a question not even worth consideration as the same is proved beyond any doubt. We have scrutinized the evidence of Mahboob Hussain (PW-7) and Riaz Hussain (PW-8) and find that they were proved to be truthful witnesses and implicit reliance can be placed upon their statements as against the appellant. There is no evidence on record that Mahboob Hussain (PW-7) and Riaz Hussain (PW-8) were motivated by any enmity to depose against the appellant. As mentioned above, no friction between the appellant and the witnesses namely Mahboob Hussain (PW-7) and Riaz Hussain (PW-8) existed prior to the occurrence which could have interested Mahboob Hussain (PW-7) and Riaz Hussain (PW-8) to get the appellant, their own brother in-law , involved in this occurrence falsely . Mahboob Hussain (PW-7) and Riaz Hussain (PW-8) were subjected to lengthy cross-examination but the defence had failed to make cracks in their deposition with regard to the appellant and the veracit y of their statements has been proved. The august Supreme Court of Pakistan in the case of "GHULAM ALI and another versus THE STATE" (2002 SCMR 1205 ) held as under:- "As reflected from the ocular account the occurrence had taken place in front of main gate of the house of the complainant. They are natural witnesses and their presence at the place of incident cannot be doubted in any manner ." Mahboob Hussain (PW-7) and Riaz Hussain (PW-8) by no stretch of the imagination can be declared as chance witnesses, as pressed time and again by the learned counsel appearing on behalf of the appellant, because they
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have rendered a plausible justification for their presence at the place of occurrence. During the course of the investigation, Ghulam Akbar , SI (PW-10), the Investigating Officer of the case, also collected the blood-stained earth from the place of occurrence and took the same into possession through recovery memo (Exh.PJ). The report of the Punjab Forensic Science Agency , Lahore (Exh.PO) establishes that the said blood taken from the place of occurrence was of human origin. As the occurrence in question had inside the land of the witness namely Mahboob Hussain (PW-7) and the deceased and the same, therefore, could not have gone un-witnessed nor could have the culprit escaped unnoticed. The appellant was proved to be present near the witnesses, thus, it would not have been difficult for the complainant party to identify the present appellant. Mahboob Hussain (PW-7) and Riaz Hussain (PW-8), being the real brother and the paternal cousin of the deceased respectively , had no reason to falsely implicate the appellant in the commission of the offence by substituting him and letting off the real culprits more so when the appellant was also related to the witnesses. There is no such material available on record which would indicate substitution of the appellan t in the case with the real culprit. Substitution is a phenomenon of a rare occurrence because even the interested witnesses would not normally allow real culprits for the murder of their relations let off by involving innocent persons. In this context, reference can usefully be made to the case of "Irshad Ahmad and others v. The State and others" (PLD 1996 SC 138). Mere relationship of the prosecution witnesses with the deceased and inter-se is not sufficient to discredit their testimony . In this regard, reference is made to the judgment in the case titled as "Ijaz Ahmad v. The State" (2009 SCMR 99) wherein the august Supreme Court of Pakistan was pleased to observe as under:-- "In the wake therefore, it proceeds that merely because the witnesses are kith and kin, their evidence cannot be rejected, if otherwise it is trustworthy . It would also be pertinent to mention here that related witnesses some time, particularly in murder cases, may be found more reliable, because they, on account of their relation-ship with the deceased, would not let go the real culprit or substitute an innocent person for him." 14. As mentioned above, the occurrence in question had admittedly taken place in broad daylight and the same, therefore, could not have gone un-witnessed nor could have the culprit escaped unobserved. As it was a broad daylight occurrence and because of the previous acquaintance and relationship of the parties, the question of misidentification does not arise. It is also a fact that from the place of occurren ce the motorcycle (P-7) of the appellant was recovered and taken into possession by the Investigating Officer of the case on the day of occurrence. Similarly , a pair of slippers (P-6/1-2) , which the appellant had left behind as he was fleeing from the place of occurrence, was also recovered from the place of occurrence by Ghulam Akbar , SI (PW-10), the Investigating Officer of the case. The recovery of the said articles belonging to the appellant from the place of occurrence further establishes the case of the prosecution. 15. We have also noted that the occurren ce, in this case, took place in the daytime at about 02.30 p.m which was reported by the complainant of the case namely Mahboob Hussain (PW-7) at 4.30 p.m., when the oral statement (Exh. P.G) of Mahboob Hussain (PW-7) was recorded by Ghulam Akbar , SI (PW-10), the Investigating Officer of the case, on the day of occurrence, inside the Trauma Center of DHQ Hospital Dera Ghazi Khan. On the basis of the oral statement (Exh.PG) of the complainant of the case namely Mahboob Hussain (PW-7), the formal F.I.R (Exh.PD) was registered at 5.45 p.m by Khuda Bakhsh, ASI (PW-2) when the distance between the place of occurrence was 9 kilometres and the complainant had suffered the traumatic and tragic loss of life of his brother . Both the witnesses namely Mahboob Hussain (PW-7) and Riaz Hussain (PW-8) explained during cross- examination that after the occurrence they immediately shifted the deceased to the hospital. Mahboob Hussain (PW-7) during cross-examination stated as under:- "We firstly go to RHC Shah Sadar Din. I was accompanied by Asghar and Riaz to RHC Shah Saddar Din. We furnished intimation to Rescue Service 1122. The ambulance of rescue service 1122 shifted deceased in injured condition from Shah Sadar Din to D.G.Khan. W e shifted the injured from the place of occurrence on a private Dala to RHC Shah Sadar Din." Riaz Hussain (PW -8) during cross-examination explained as under:- "The injured was shifted on a private dala by us from the place of occurrence to RHC Shah Sadar Din.
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I accompanied the injured at Trauma Center . The statement of complainant was recorded by the I.O in Trauma Center in my presence." Thus, it is apparent that the oral stateme nt (Exh.P .G) of Mahboob Hussain (PW-7) and the formal FIR (Exh.PD) were got lodged within a short duration and the complainant not only named the appellant but also mentioned each and every minor as well as material fact of the incident therein, which of course excludes the possibility of pondering or planning regarding the false implication of the appellant in the instant case. The details of the occurrence have been elaborately explained in the F.I.R. (Exh.PD) and the oral statement (Exh. P.G) of Mahboob Hussain (PW-7). The promptitude in reporting the matter to the police also establishes that the eyewitnesses could not have developed a false narrative regarding the occurrence, in which the brother of the complainant had died, in such a short time. In this regard, reference is made to the judgment in the case titled as "Muhammad Waris v. The State" ( 2008 SCMR 784 ) wherein the august Supreme Court of Pakistan was pleased to observe as under:-- "The names of the said two eye-witnesses could not have been mentioned in such a promptly lodged F.I.R. if they had not been with the deceased persons at the time of their death." We have also noted that as per column No.11 of the inquest report (Exh.PB), relating to Ghulam Sarwar son of Allah Bakhsh (deceased), at the time of preparation of the same, the blood of the deceased had not coagulated at that time. This also proves that the matter was reported to the police with promptitude by the witnesses. 16. The medical evidence produced by the prosecution in the case also proved that the deceased had received the fatal injury with a firearm weapon on the vital part of the body and he succumbed to the said injury . The medical evidence fully supports the ocular accou nt. The probable time between the death of Ghulam Sarwar (deceased) and the conducting of the postmortem examination as noted by Dr. Muhammad Junaid Asghar (PW-1) was about four to five hours, which estimation coincides with the time of occurrence as mentioned by the witnesses namely Mahboob Hussain (PW-7) and Riaz Huss ain (PW-8). The post-mortem examination of the dead body of Ghulam Sarwar (deceased) had been conducted quite promptly leaving no room for deliberations or fabrication of a story . All the necessary documents were also provided to Dr. Muhammad Junaid Asghar (PW-1) prior to conducting of post mortem examination of the dead body of Ghulam Sarwar (deceased). This promptitude in conducting the post mortem examination of the dead body of the deceased namely Ghulam Sarwar establishes that the matter was reported to the police immediately and spontaneously with regard to the appellant. Furthermore, Dr. Muhammad Junaid Asghar (PW-1), on examining the dead body of Ghulam Sarwar son of Allah Baksh (deceased) observed an entry wound of the dimension of about 0.5 cm x 0.5 cm present on left anterior axillary fold of armpit towards the lateral aspect of left upper chest with circu lar, inverted margins, going very deep associated with fresh bleeding and an exit wound of the said injury was observed on the back of the dead body of the deceased. Dr. Muhammad Junaid Asghar (PW-1) also noted that corresponding holes were present on clothes on the dead body of the deceased. Dr. Muhammad Junaid Asghar (PW-1) opined that the said entry wound had been caused by the use of a firearm weapon. Dr. Muhammad Junaid Asghar (PW-1) also stated that the said entry wound observed on the dead body of the deceased was sufficient to cause the death in the…
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