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Petitioner: ALLAH DITTA and others VS Respondent: The STATE and others
Court Name: Lahore High Court Judge(s): Aalia Neelum Title: ALLAH DITTA and others vs The STATE and others Case No.:Criminal Appeals Nos. 646, 704 of 2013 and Criminal Revision No, 392 of
JUDGMENT
Reported As: 2017 P Cr. L J 789 Result: Appeals allowed Judgment JUDGMENT ' MISS AALIA NEELUM, J.---Allah Ditta son of Ramzan, caste Jatt, resident of village Matta, Tehsil Shakargarh District Narowal and Zeeshan Khan son of Shabbir Khan, caste Pathan, resident of Malik Afghanan, Tehsil Shakargarh District Narowal, the appellants were involved in case FIR No,128 of 2012, dated 26.05.2012, offence under sections 302, 377, 34, P.P.C., registered at Police Station Shahgharib, Tehsil Shakargarh District Narowal and were tried by the learned Sessions Judge/Juvenile Court, Narowal. The learned trial court seized with the matter in terms of judgment dated 19.04.2013 convicted the appellants as under: 1. Allah Ditta, appellant. Under section 302(b), P.P.C. As tazir and sentenced to life imprisonment with the direction to pay Rs,100,000/- as compensation to the legal heirs of the deceased Abou Hurera under section 544-A, Cr.P.C. And in case of default thereof, further undergo for six months. 2. Zeshan Khan, appellant. i) Under section 377, 34, P.P.C. And sentenced to life imprisonment with the direction to pay Rs,50,000/- as fine to the legal heirs of the deceaged and in case of default thereof, further undergo for six months. ii) Under section 302(b), P.P.C. As tazir and sentenced to life imprisonment with the direction to pay Rs,100,000/- as compensation to the legal heirs of the deceased Abou Hurera under section 544-A, Cr P.C. And in case of default thereof, further undergo for six months.
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' The benefit of section 382-B of Cr.P.C. Was also extended in favour of both the appellants with further direction that both the sentences would run concurrently. 2. Feeling aggrieved by the judgment of the learned trial court, Allah Ditta, appellant has assailed his conviction and sentence through Crl. Appeal No,646/2013 whereas the other appellant, namely, Zeshan Khan has challenged his conviction and sentence by filing Crl. Appeal No, 704/2013. 3. The complainant being dissatisfied with the judgment dated 19.04.2013, also filed a Criminal Revision No,392 of 2013 against the respondents Nos.1 and 2 for enhancement of sentence of respondents/ appellants, namely, Allah Ditta and Zeshan Khan, from life to death. As all the matters are arising out of one and the same judgment of the learned trial court, therefore, these are being disposed of through a consolidated judgment. 4. Precisely, the story as contained in the private complaint (Exh.PB) lodged by Muhammad Shahzad (PW-1) is that two nephews of the complainant, namely, Huzefa aged six years and Abu Hurera aged 3-1/2 years were residing in the village Khudhri and were studying in AS Academy at Adda Bustan. Today, i,e, 26.05.2012 at 01:30 p.m., both Huzefa and Abu Hurera were on their way back to home after attending AS Academy, when Allah Ditta and two unknown accused forcibly took Abu Hurera with the intention to commit unnatural offence with him. When he did not return to the house, search was made for him. At about 4.00 p.m. Zulfiqar Khan and Yasir Khan PWs told him (the complainant) that they had witnessed Abu Hurera deceased in the company of Allah Ditta and two unknown persons proceeding towards Mustafa Abad. After short while, the complainant received information that dead body of said Abu Hurera is lying near Peeter Engine of Abbas in the fields whereupon he along with others proceeded to the alleged place and found the dead body of his nephew Abu Hurera smeared in blood who was murdered by Allah Ditta and two unknown accused persons. Earlier, Allah Ditta, accused also took Abu Hurera to his house and made an attempt to commit sodomy with him. After the alleged occurrence, the complainant (PW-1) rushed towards the Police Station and on the written complaint (Ex.PA), formal FIR (Ex.PA/1) was chalked out by Muhammad Anjum, ASI. 5. Thereafter the investigation was entrusted to Sajjad Ahmad, SI (CW-10) who proceeded to the place of occurrence, prepared rough site plan (Exh.CW-10/B), prepared inquest report (Exh.CW- 10/C), injured statement (Exh.CW-10/D), application for postmortem examination (Exh.CW-10/E), collected blood stained earth from the place of occurrence (Exh.PD), also took into possession school bag of the deceased containing books and note books (P-1/1 .To 6) and one shoe (P-2) vide recovery memo (Exh.PE) attested by the PWs. The dead body of the deceased was escorted to THQ Hospital, Shakargarh by Toheed Anwar, constable (CW-4) for autopsy. He (CW-10) recorded statements of the PWs and interrogated other persons present at the place of occurrence. On return to the police station he (CW-10) handed over the case property to the Moharrar. On 27.05.2012, he (CW-10) recorded the supplementary statement of the complainant who implicated Zeshan Khan-accused. He (CW-10) also recorded the statements of PWs regarding the supplementary statement. Toheed Anwar No, 84/C (CW-4) handed over to him (CW-10) the last worn clothes of the deceased i,e, pant (P-4) and shirt (P-5) which were taken into possession through recovery memo (Exh.PF) and (Exh.CW-4/1). He (CW-10) also recorded the statements of PWs. On 28.05.2012, he (CW-10) arrested Allah Ditta and Zeshan accused. During interrogation, after their separate disclosure, both the accused separately led to the recovery of the brick (Rora) and took the same into possession vide recovery memo (Exh.CW-9/A), attested by the PWs-Zaka Ullah and Toqeer constable. He (CW-10) prepared rough site plan of the place of recovery (Exh.CW-10/F) on 28.05.2010. Mirza Tahir Tasleem, draftsman (CW-7) took rough notes on the direction of Investigation Officer and poiniation of the complainant along with the PWs and thereafter he (CW- 7) handed over scaled site plan (Exh.CW-7/A) to the Investigation Officer on 30.5.2012. On 25.7.2012 he (CW-10) produced the accused before the Analyst at Lahore for DNA purpose, after obtaining
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their custody from jail, along with the parents of the deceased and last worn clothes of the deceased. On 25.7.2012 he (CW-10) also sent the parcel containing piece of brick to the office of Chemical Examiner, Lahore through Abdul Razzaq 316/C (CW-6). He (CW-10) also produced the accused persons for ossification test and obtained their reports and he secured the same through recovery memo (Ex.CW-9/A). Later on, investigation was transferred to Muhammad Arif, Inspector RIB (CW-11), Range Crime Branch, Gujranwala on 20.10.2012 who investigated the case. On 12.11.2012 he recorded statement of PW Huzefa under section 161, Cr.P.C. On 22.11.2012 he (CW-11) visited the place of occurrence near Peeter Engine of Abbas Khan. On 23.11.2012 he (CW-11) interrogated accused Allah Ditta in District Jail, Sialkot. 6. Having found the appellants guilty, the Investigating Officer prepared report under section 173, Cr.P.C. And sent the same to the Court of Session enrouted through the learned Illaqa Magistrate as provided under section 190(2), Cr.P.C. Being dis-satisfied with the result of investigation, as the first Investigating Officer (CW-10) did not record the statement of PW Huzefa (PW-2) under section 161, Cr.P.C., the complainant filed a private complaint (Exh.PB) in which formal proceedings were conducted and the accused were summoned to face trial under sections 302, 377, 34, P.P.C. 7. After the appearance of accused persons, they were formally charge sheeted by the learned trial court in terms of order dated 19.12.2012 respectively, to which they pleaded not guilty and claimed trial. The prosecution in order to advance its case, produced as many as seven prosecution witnesses. Muhammad Shahzad Khan (PW-1) is the complainant of the case, whereas his testimony was supplemented by Huzefa (PW-2), Yasir Arfat (PW-4), Hafiz Tariq Mehmood (PW-5) and Muhammad Afzal Khan (PW-6). Naeem Ullah Khan (PW-7) identified the dead body of Abu Hurera, deceased. The learned trial court also recorded eleven (11) CWs. 8. Dr. Khalil Ahmad, (CW-5) conducted post mortem examination of Abu Hurera, deceased on 26.5.2012 and observed as under:- DESCRIPTION OF INJURIES. 1. An abraded area measuring 3 cm x 2 cm on inner aspect of left lower thigh. 2. An abraded area measuring 6 cm x 4 cm on anterior aspect of left thigh. 3. An abraded area measuring 6 cm x 4 cm on anterior aspect of right thigh. 4. Penis and scrutum were severely injured. 5. 4 cm x 2 cm deep lacerated wound on skull above left eye. Bone was exposed. 6. A depressed area measuring 6 cm x 4 cm on forehead. 7. Deep lacerated area measuring 2 cm x 1.2 cm in left temporal region 6 cm above from left ear. 8. Whole chest was abraded from front side, stained with dust. 9. A deep lacerated wound measuring 4 cm x 2 cm in right temporal region, bone was fractured at the site. 10. 2 cm x 4 cm deep lacerated wound in left temporal region, bone was fractured at the site. 11. Deep lacerated wound 2 cm x 1 cm in center of occipital region. 12. 2 cm x 2.6 cm deep lacerated wound in center of skull, bone was fractured at the site. 13. 2 cm x 2.6 cm deep lacerated wound 10 cm above from left temporal region. 14. A deep lacerated wound measuring 3 cm x 2 cm in right temporal region 6 cm above from right ear. OPINION. ' In his opinion, cause of death in this case was secondary to head injury by the above mentioned injuries which lead to excessive perfuse hemorrhage, and death. The injuries were ante mortem and were caused by blunt weapons. For sodomy, three samples were taken which were sealed and were handed over to police for detection for semen analysis and DNA detection. The probable time that elapsed between injuries and death was within one hour and that elapsed between death and postmortem was within 12 hours.
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9. Dr. Muhammad Tariq, CMO (CW-5) conducted the medico-legal examination of Zeshan Khan- accused/appellant and observed as under:- 1. Primary and secondary sexual characters were fully developed. 2. Circumcise. 3. Cremysteric reflex was positive. 4. Prostatic Massage was positive. 5. Not suffering from any decease of spinal cord. 6. Not suffering from any metabolic disease. 7. No operation scar in the groin area. OPINION. ' There was nothing to suggest that the above person was incapable to perform the sexual act. The MLC of accused Zeshan Khan is (Exh.CW-2/A). 10. On the same day, at 3.10 pm, said Dr. Muhamamd Tariq (CW-2) also conducted the Medico- Legal examination of Allah Dittaaccused/appellant and observed as under:- 1. Primary sexual characters were fully developed. 2. Not suffering from any disease of spinal cord. 3. Not suffering from any metabolic disease. 4. Cremasteric reflex was positive. OPINION. ' The opinion will be given after the Radiologist for age determination. The MLC of accused Allah Ditta is (Exh. CW-2/B) which is in my handwriting and bears my signature. ' Rest of the prosecution witnesses are formal in nature. 11. On 21.01.2013, the learned counsel for the complainant gave up PW-Sabir Khan being un- necessary. Similarly, on the statement of learned counsel for the complainant and the learned Assistant District Public Prosecutor recorded on 12.3.2013 gave up PW Toqeer Ahmad 755/C being unnecessary and closed the prosecution evidence on 18.3.2013 after tendering the report of Serologist regarding blood stained piece of brick and earth Exh.PG, report of Chemical Examiner qua blood stained earth Ex.PH, report of Chemical Examiner qua brick/Rora (Exh.PI). 12. The appellants were also examined under section 342, Cr.P.C., wherein Zeshan accused opted not to appear as his own witness in terms of section 340(2), Cr.P.C. In disproof of allegations levelled against him. However, he opted to produce defence evidence. Neither Allah Ditta-accused opted to lead defence evidence nor to appear as his own witness in terms of section 340(2), Cr.P.C. In disproof of allegations levelled against him. However, while replying to a question that why this case is against him and why the PWs have deposed against him, Zeshan Khan, the appellant made the following deposition:- "I used to go in the AS Academy for tuition purpose as private student of 9th class. On 26.05.2012 as usual after my tuition, 1 departed from academy at about 01.00 p.m. And came to my home via Malik Bag stop by riding on a motorcycle. I heard about the recovery of dead body of a missing boy at about 04.30 p.m. Being member of the pathan brothers on the same day, 1 along with my father went for condolence with the family of victim and on the next day we also participated in the funeral ceremony of the deceased. The police arrested accused Allah Ditta, a student of 5th class on the day of occurrence. The 10 inquired from said Allah Ditta who is his bench-mate in the class room. He had taken the name of one Zeshan Khan alias Shani, resident of village Mamewal. Police joined investigation of the said Zeshan alias Shani but let him off. After that a rumour spread in the locality that the accused Allah Ditta named one Zeshan alias Shani. Then police started a fishing investigation in the name of Zeshan alias Shani. There were many students with the name of Zeshan alias Shani studying in the AS Academy at that time. The 10 joined many of them in investigation but let 'them off due to reasons best known to them. The news of this murder incident spread in the locality and also flashed in the media. The complainant party was also
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protesting on the matter and there was a rumour that Chief Minister, Punjab was coming to visit the police station regarding this incident. There was a lot of pressure on the local police to trace out and arrest the accused. Then the 10 who wanted to get rid of this pressure and to save his skin made me a scape goat and with the connivance of the complainant party fabricated false evidence of Wajtakar and falsely named me in this case. The 10 himself had written the supplementary statement of the complainant and on 27.05.2012 at 11.00 p.m. By raiding my home arrested me to show his false efficiency in the case to the high-ups. On the day of my arrest and on the next day many respectable of the locality appeared before the 10 to prove my innocence but the IO with mala fide intention did not join them in investigation. The I.O. Planted a crime weapon/piece of brick Rora upon me and prepared fabricated recovery memo and had shown the Rora recovered from me. I along with my defence witnesses joined the second investigation and recorded our statements to the IO of RIB, Gujranwala. The witnesses mere on rumour and suspicion and by joining hands with the local police involved me in this case. All the PWs are related inter se and they became inimical towards me due to the false rumours. I have nothing to do with the alleged occurrence. I am innocent." ' Similarly, while replying to a question that why this case against him and why the PWs have deposed against him, Allah Ditta, the appellant made the following deposition:- `I am innocent having no concern with the commission of this alleged offence. I have wrongly been involved in this case just under suspicion based upon presumptive assessment after due deliberations and consultations. Abu Hurera (deceased) was not a student of AS Academy and he was just kidnapped by some ogre like person from village Khudra as unattended child and then he was murdered by some unknown person. I have maliciously been involved under suspicion and personal assessment as an afterthought. I have been roped in this false case just in order to blackmail my parents for extraneous reasons. PWs were inimical being inter se related and have opted tobe false witness under the instruction of complainant of this case just in order to strengthen the false prosecution case. I have nothing to do with the alleged occurrence. I am innocent." 13. In defence, Zeshan Khan-accused produced Anwar Khan (DW-l), Younis Khan (DW-2), Muhammad Naseer Ahmad (DW-3) and Shabbir Khan (DW-4) and closed his defence evidence on 04.4.2013. 14. 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 appellant in the above stated terms. 15. The learned counsel for the appellants has submitted that there is no eye witnesses of the occurrence of sodomy and that the PWs are interested as well as chance witnesses as they had not seen the deceased in the accompany of the accused. Learned counsel has further submitted that the FIR is totally silent qua moving any application by the parents of the deceased or the complainant against Allah Ditta regarding earlier attempt to commit sodomy with the deceased. It is further submitted that the complaint was filed in order to fill up the lacuna as the prosecution witnesses tutored the child. It is further submitted that major contradictions are available on the record to disprove the allegation levelled by the prosecution witnesses. It is further submitted that joint recovery of "Rora" has been planted upon both the accused persons which is inadmissible. It is further submitted that last seen witness particularly Zulfiqar (PW-3) is a co-villager of the complainant and no feature has been given. Learned counsel for the appellants has finally submitted that the prosecution had miserably failed, to prove its case against the appellants beyond any shadow of doubt, thus, this appeal may be accepted and the appellants may be acquitted from the charge.
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16. On the other hand, the learned Deputy Prosecutor General for the State assisted by the learned counsel for the complainant has opposed the instant appeal and have submitted that the appellants have specifically been named in the FIR with specific role; that there was no reason for false implication of the appellants; that there is no material conflict between the testimony of the witnesses; that the learned trial court has committed material irregularities and illegalities while awarding life imprisonment by the appellants. Lastly the learned counsel for the complainant has prayed for enhancement of their sentence from life imprisonment to death of the appellants. 17. I have heard the arguments advanced by the learned counsel for the appellant as well as the learned Law Officer and perused the record. 18. It may be noted at the outset that there is no direct evidence adduced by the prosecution to connect the accused with the crime. The dead body of the deceased Abu Hurera was found in the field lying near Peeter Engine of Abbas at about 4.00 p.m. On 26.05.2012. It is settled proposition of law that in a case of circumstantial evidence, the facts on which the prosecution relies must be fully and finally established. These facts must lead to only one conclusion that is guilt of the accused and it must exclude all reasonable hypothesis consistent with the innocence of the accused. The entire prosecution case against the appellants-Allah Ditta and Zeshan Khan rests on the oral evidence of Muhammad Shahzad Khan the complainant (PW- 1) as well as of Huzefa Khan (PW-2), Zulfiqar (PW-3) and Yasir Arfat (PW-4) witnesses of last seen to the extent of Allah Ditt- accused (the appellant) whereas, the evidence of "Wajtakar" to the extent of Zeshan Khan accused (the appellant) was produced by the prosecution through Hafiz Tariq Mehmood (PW-5) and Muhammad Afzal Khan (PW-6). As per written complaint (Exh.PA), FIR (Exh.PA/1) and the private complaint (Ex.PB), on 26.05.2012 the nephew of the complainant Abu Hurera did not return back after closure of school at 1.30 p.m. Whereupon he started search of Abu Herera and at 4.00 p.m. Zulfiqar Khan (PW-3) and Yasir Arfat (PW-4) met him (the complainant) and they informed the complainant that they saw Abu Herera in the company of Allah Ditta and proceeded towards Mustafabad. In short while he came to know that the dead body of Abu Hurera was lying near Peeter engine of Abbas in the fields. The complainant (PW-1) had come to know about the murder of Abu Hurera after short while when he had received information that Abu Hurera was in the company of Allah Ditta, the accused. However, during cross-examination he deposed that he (PW- 1) submitted complaint (Exh.PA) before the police at 05.00 p.m., whereas from the police karrawai written on the complaint (Ex.PA) by Muhammad Anjum, ASI (since dead) revealed that Rapt No,12 dated 26.05.2012 regarding the complaint (Ex.PA) was incorporated at 7.00 p.m. Whereupon formal FIR (Ex.PA/1) was chalked out however, the distance between the police station and the place of occurrence was 16 kilo meters whereas the complainant (PW-1) took three hours for reaching the police station for reporting the incident. Sajjad Ahrnad, SI (CW-10) deposed that on 26.05.2012 on receiving copy of the FIR (Ex.CW-10/A) he (CW-10) along with other police officials proceeded to the place of occurrence situated at Village Matta Kalan and thereafter he prepared inquest report (Exh.CW-10/C). It has been noticed that the particulars of the FIR (Exh.CW-10/A as exhibited Ex.PA) are not mentioned in the inquest report (Exh.CW-10/C) if that is so, it is not believable that the complainant (PW-1) had reported the incident through written application (Ex.PA) without consultation and deliberation. It is also noted that in the column No,3 of the inquest report, date and time of receiving knowledge of incident was mentioned 4.00 p.m. On 26.05.2012 and Sajjad Ahmad, SI (CW-10) has mentioned the names of the persons who identified the dead body of Abu Hurera as Naeem Ullah Khan and Sabir Khan both residents of Village Afghanan and village Matta respectfully. This out-rightly suggests that the complainant (PW-1) and the prosecution witnesses were not present, at the time of inquest report in the case was prepared. The inquest report (Ex.CW-10/C) also reflects that the dead body of Abu Hurera was handed over to Ejaz constable/646 by Sajjad Ahmad, SI (CW-10) for post mortem examination whereas, Toheed Anwar
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84/C (CW-4) deposed that he escorted the dead body of Abu Hurera to hospital for post-mortem examination. Dr. Khalil Ahmad (CW-5) deposed that dead body of the deceased-Abu Hurera was brought by Zaka Ullah 172/C and Toheed Ahmad 84/C. In view of the matter, the conclusion I arrived at is that the FIR had been registered after due consultation and deliberation by the complainant (PW-1). The absence of all above details is indication of the fact that at the time of preparation of inquest report, the FIR was not in picture and the FIR was recorded after due deliberations and consultations. On account of the infirmities as noted above, the FIR has lost its value and authenticity. 19. I have also noted that in the inquest report (Exh.CW-10/C) in item No,11, it was mentioned "Blood Frozen". This shows that the death had occurred much earlier to the time mentioned by the prosecution. This also creates doubt about the time of missing of Abu Hurera. I have noticed that Dr. Khalil Ahmad (CW-5) who conducted the post mortem on the dead body of Abu Hurera during court statement opined that the post mortem was conducted at 1.30 a.m. On 27.5.2012 and the probable time that elapsed between the injuries and death was within one hour and that elapsed between death and post mortem was within 12 hours. Thus, it is amply clear from the testimony of Dr. Khalil Ahmad (CW-5) that Abu Hurera died between 1.30 a.m. To 1.30 p.m. On 26.5.2012 and before death he remained alive for almost one hour in injured condition. It is the prosecution case that Zulfiqar Khan (PW-3) and Yasir Arfat (PW-4) had seen Abu Hurera in the company of Allah Ditta on 26.5.2012. Yasir Arfat (PW-4) in his court statement stated that when they saw lastly Abu Hurera in the company of Allah Ditta, it was about 1.30 p.m. On 26.5.2012. Amer Sohail (CW-8), the Principal of Amer Educational School System Adda Bustan, stated in his court statement that the school started at 7.30 a.m. And closed at 1.30 p.m. It is the case of the prosecution that Abu Hurera was taken away by the accused Allah Dina*long with two unknown accused after coming back from school on 26.5.2012. It is sought to be suggested from the evidence of Yasir Arfat (PW-4) that at 1.30 p.m. Abu Hurera was alive. Whereas Hafiz Tariq. Mehmood (PW-5) and Muhammad Afzal Khan (PW-6) also deposed in their court statement that on 27.5.2012 at 02.45/3.00 p.m. They saw Zeshan Khan accused walking fastly in disturbed condition. The testimony of Zulfiqar (PW-3), Yasir Arfat (PW-4), Hafiz Tariq Mehmood (PW-5) and Muhammad Afzal Khan (PW-6) being not in accord with the medical evidence itself is sufficient to disbelieve their,…
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