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Petitioner: Anjum Latif VS Respondent: The State and another
Court Name: Lahore High Court Judge(s): Sardar Ahmad Naeem, Sardar Muhammad Sarfraz Dogar Title: Anjum Latif vs The State and another Case No.: Criminal Appeals Nos. 23157, 24016 and Murder Reference No. 88 of 2019 Date of Judgment:2022-03-09 Reported As: 2023 PCRLJ 735 Result: Appeals allowed
JUDGMENT
JUDGMENT SARDAR AHMED NAEEM, J. Anjum Latif and Amjad Latif appellants along with Aman Ullah, Azhar Shamim, Muhammad Ejaz, Muhammad Imtiaz and Aftab Ali (co-accused) were tried by the learned Addl. Sessions Judge, Sargodha in case FIR No.494/2012 dated 13.11.2012 for offences under sections 302/337-A(i), 337-L(2), 337-F(iv)/148/149, P.P.C., registered at Police Station City Sargodha. At the conclusion of the trial, vide judgment dated 10.04.2019, the learned trial Court acquitted Amanullah alias Toni, Muhammad Ejaz, Muhammad Imtiaz and Aftab Ali co-accused. Whereas, convicted and sentenced Anjum Latif and Amjad Latif appellants as under: Anjum Latif Under section 302(b), P. P.C.: Sentenced to death as Tazir with the direction to pay compensation of Rs.2,00,000/- (rupees two lac) to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C., in default thereof, to further undergo six months' S.I. The amount of compensation was recoverable from the arrears of the estate etc. Amjad Latif i. Under section 337-A(i), P. P. C.: To pay Rs.25,000/- as Daman. ii. Under section 337-L(2), P.P.C.: To pay Rs.25,000/- as Daman. Azhar i. Under section 337-A(i), P.P.C.: To pay Rs.25,000/- as Daman. ii. Under section 337-L(2), P.P.C.: To pay Rs.25,000/- as Daman. 2. Anjum Latif appellant filed Criminal Appeal No.23157/2019. Whereas, Amjad Latif appellant filed Criminal Appeal No.24016/2019 challenging their convictions and sentences awarded by the learned trial Court. Murder Reference No.88 of 2019 is also before us for confirmation or otherwise
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of the death sentence awarded to the appellant Anjum Latif. Through this single judgment, we propose to decide all these matters. 3. The prosecution story, in brief, as narrated in the FIR lodged by Ali Imran, complainant was that on 13.11.2012 at about 6.30 a.m., Anjum Latif appellant armed with Pistol along with his co-accused Aman Ullah, Amjad Latif, Azhar and three unknown persons armed with Pistols and iron rods came at the spot and caused injuries with their respective weapons to Muhammad Yaseen, Nadeem and Irfan hitting on different parts of their bodies. The accused persons fled away from the spot after enacting the episode. 4. After usual investigation, challan was submitted in Court. The learned trial Court framed charges against the accused persons to which, they pleaded not guilty and claimed trial. Hence, the prosecution evidence was summoned. 5. The prosecution in order to prove its case, produced as many as thirteen PWs in all. 6. Muhammad Younas ASI (P.W.1) recorded formal FIR Ex.PA on receipt of complaint Ex.PA/1. 7. Doctor Muhammad Younas Siddiqui SMO Civil Hospital, Sargodha (P.W.4) conducted post- mortem examination on the dead body of Muhammad Yasin deceased on 04.11.2012 and found following injury on his person:- 1. A fire arm wound of entry on the left side of head 1/2 x 1/2 cm with blackening around the wound 3 cm above left ear. In his opinion, cause of death was injury No.1, which caused trauma to the vital organ brain and haemorrhage leading to shock, cardiopulmonary arrest and death. Injury No.1 was ante mortem inflicted by fire arm and sufficient to cause death in ordinary course of nature. Probable time that elapsed between injury and death was within two hours and between death and post mortem was five to six hours. 8. Doctor Azmat Rafique Medical Officer DHQ, Hospital (P.W.10) on 13.11.2012 at about 6:50 a.m, conducted medical examination of Muhammad Umar Farooq injured and found following injuries on his dead body:- 1. A lacerated wound 2 cm x 1/2 cm on the back of the head. 2. An abrasion 1 cm x 1/2 cm on right scapula. 3. Contused swelling 5 cm x 4 cm on back of right shoulder. 4. A contusion mark 15 cm x 8 cm on back and middle of the chest. 5. A contused mark 7 cm x 5 cm on the left scapula. On the same day, he also medically examined Muhammad Nadeem injured and observed following injuries on his person:- 1. A lacerated wound 1 x 1 1/2 cm on top of head with swelling 5 cm x 4 cm. 2. An abrasion 1 cm x 1/2 cm on front of right wrist joint. 3. An abrasion 2 cm x 2 cm on the back of chest. 4. A swelling 6 cm x 5 cm on top of right shoulder. 5. A swelling 5 cm x 4 cm on the outer side of right arm. 6. An abrasion 2 cm x 1 cm on back of left fore-arm. On the same day, he also medically examined Muhammad Irfan injured and observed following injuries:- 1. An incised wound 2.5 cm x 1/2 on front of head muscle deep. 2. An abrasion 1 x 1/2 cm on right side of nose with swelling 4 cm x 3 cm. 3. A swelling 7 cm x 6 cm on outer side of left shoulder. 4. A swelling 8 cm x 5 cm on the inner side of left forearm. On the same day, he medically examined Muhammad Yaseen and observed following injury on his person:-
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1. A fire arm wound of entry 1/2 x 1/2 cm on left side of head 3 cm. above the left ear with blackening. 9. Muhammad Imran (P.W.5) identified the dead body of Muhammad. Yaseen deceased. Muhammad Hafeez draftsman (P.W.6) visited the place of occurrence on 17.11.2012. He prepared site plan of the place of occurrence and produced before the Investigating Officer on 21.11.2012. 10. Muhammad Irfan (P.W.7) and Nadeem (P.W.8) were injured-eye-witnesses of the occurrence. They were deaf and dumb, therefore, their statements were recorded with the help of Muhammad Ashraf interpreter. 11. Ali Imran (P.W.9) was complainant of the case. He supported the prosecution story as mentioned in the FIR. 12. Aziz Ullah S.I. (P.W.11) conducted investigation of the case. 13. Muhammad Akram H.C. (P.W.12) escorted the dead body of Muhammad Yaseen deceased to the mortuary. 14. Muhammad Ashraf (P.W.13) Interpreter as teacher/ superintendent Deaf and Dumb school appeared and stated that he joined the investigation of this case and got recorded the statements of Irfan and Nadeem deaf and dumb PWs to police. He further stated that he had experience of 22/23 years in the School of Deaf and Dumb. He also made his statement in this context before the I.O. on 09.12.2012. Rest of the PWs were of formal nature, therefore, need not to be reproduced. 15. The prosecution gave up Shahbaz S.I., Muhammad Sagheer, Muhammad Zahid, Muhammad Asghar and Muhammad Shabbir as being unnecessary and Umar Farooq as he had gone abroad and after tendering in evidence the report of PFSA, Lahore as Ex. PV and that of Serologist Ex.PW and closed its case. 16. After recording prosecution evidence, statements of accused persons were recorded under section 342, Cr.P.C. Responding to a question "why this case against you and why the PWs deposed against you, Anjum Latif appellant stated as under: "The complainant got registered this case against me by suppressing the real facts. In fact the complainant party was the aggressor and to conceal their aggression they falsely got registered this case. Moreover, using the undue political influence this false case was registered. The complainant was not present at the alleged place of occurrence. The complainant and the PWs are related interest and are interested witness and have deposed falsely." The other co-accused made a similar statement as mentioned above. 17. The appellants and their co-accused neither appeared as their own witnesses under section 340(2), Cr.P.C nor produced any evidence in defence. However, Anjum Latif appellant tendered in defence evidence a certified copy of Writ Petition No.1852/2014 titled Amjad Latif v. DPO Sargodha as Ex.DA. 18. Learned counsel for the appellants, inter alia, contended that the occurrence took place on a thorough fare in a market but no independent witness was cited by the prosecution; that all the PWs were closely related to the deceased and, thus, were interested witnesses; that the statements of the eye-witnesses were replete with contradictions/ discrepancies; that the motive was not proved; that the recoveries were effected from the appellants simultaneously, on the same day from their house; that the safe dispatched of crime empties to Punjab Forensic Science Agency was not proved, thus, the report of Punjab Forensic Science Agency was inconsequential; that the postmortem was conducted after six hours of the occurrence, which suggested deliberation and consultation; that one of the injured, namely, Omer Daraz was not examined at trial; that Muhammad Irfan and Nadeem injured-eye-witnesses were deaf and dumb and their statements were not recorded in accordance with law, thus, inadmissible; that scaled site plan was prepared at the instance of Zahid and Sagheer PWs, not examined during trial; that the eye-witnesses were examined after the lapse of about twenty five days on 09.12.2012 but no plausible explanation was
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forthcoming on record for such belated statements; that Arshad alias Matool and owner of Moosa Mobile Shop claimed themselves to be the eye-witnesses of the occurrence, interrogated- examined by the Investigating Officer but not produced by the prosecution as witness; that co- accused of the appellants including Amanullah alias Toni, Muhammad Ejaz, Muhammad lmtiaz and Aftab were acquitted on the same set of evidence and no independent corroboration was forthcoming on record to sustain conviction of the appellants; that case of the prosecution was replete with doubts and every doubt even slightest is always resolved in favour of the accused, thus, the appellants are entitled to acquittal. 19. Learned Deputy Prosecutor General assisted by the learned counsel for the complainant argued that the parties were known to each other, the appellants along-with their co-accused were nominated in the FIR registered with promptitude, which excludes the possibility of deliberation/consultation; that the eye-witnesses have rendered straight forward account of occurrence and had no axe to grind against the appellants; that the medical evidence lent further corroboration to the prosecution story; that the motive was proved; that the deceased sustained firearm injury at the hands of the appellant, namely, Amjad Latif, proved fatal; that the discrepancies hinted at by the learned counsel for the appellants were minor and negligible and do not effect the case of prosecution in any manner; that the deaf and dumb witnesses were examined through interpreter which is sufficient compliance of the law on the subject; that positive report of Punjab Forensic Science Agency also lend further corroboration to the complainant's version; that the prosecution proved its case against the appellants to the hilt, thus, the appeals deserve dismissal; 20. We have considered the points raised at the bar and have perused record with able assistance of the learned counsel for the parties. 21. The appellants were earlier convicted by the learned trial Court vide judgment dated 07.12.2015 and appeals (Criminal Appeal No.3851/2015 and Criminal Appeal No.37/2016) filed by the appellants were disposed of by this Court and the judgment of the trial Court was set aside vide judgment dated 08.11.2018, whereby the case was remanded to the learned trial Court with the direction to re-write the judgment after affording an opportunity of hearing to learned counsel of both sides and while taking into consideration all aspects of the case pertaining to the charge framed, in accordance with law and while giving convincing and elaborate reasoning, which satisfy the judicial conscience in the interest of safe administration of criminal justice. Murder Reference No.7 of 2016 was also answered in the negative. After remand, the learned trial Court vide judgment dated 10.4.2019 acquitted co-accused of the appellants including Aman Ullah, Muhammad Ijaz, Muhammad Imtiaz and Aftab Ali. Whereas, the appellants were held guilty, convicted and sentenced as detailed above. 22. On the fateful day and at the time of occurrence, the deceased, namely, Muhammad Yaseen along with his sons including Ali Imran, Nadeem and Muhammad Iran were going to parking stand situated in Block No.6. All of them were shopkeepers. The appellants had also their shops in the same street. It was the case of the prosecution that Anjum Lateef, Aman Ullah, Amjad Latif along with other co-accused emerged at the crime scene on a car. Whereas, Hassan Ijaz and Imtiaz reached at the spot on a motorbike. Amjad Latif appellant fired at the deceased hitting his right temporal region. Amjad Latif appellant had beaten Nadeem PW. This occurrence was also witnessed by Zahid and Sagheer PWs. 23. An altercation between Muhammad Irfan (PW-7) and the accused 2-3 days prior to the occurrence was the reason for the outbreak of this episode. 24. After the occurrence, the deceased then injured was shifted to hospital. Meanwhile, the police party reached there. However, the deceased succumbed to the injury. During this occurrence, the deceased sustained only one injury attributed to Amjad Latif appellant and said single injury is also
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borne out from the postmortem report Exh.PB. As mentioned above, the occurrence took place at 6:30 p.m but the postmortem was conducted on the following day at 1:30 a.m (at night). The medical officer admitted during the cross-examination that he neither mentioned CNIC numbers nor relations of the persons, who accompanied/identified the deceased at the time of post- mortem. He also gone on to add that he received the dead body at 1:15 a.m and conducted postmortem at 1:30 a.m on the same day. He also admitted that the dead body was received at mortuary after completion of police papers. 25. The occurrence took place on 13.11.2012 at 6:30 p.m in Methai Wali Gali Block No. 6-Sargodha. The place of occurrence was a thorough fare and surrounded by thickly populated area including shops. The record divulged that two shopkeepers from the same market including Arshad alias Matool and proprietor of Moosa Mobile Shop joined the investigation, claimed themselves to be eye-witnesses of the occurrence and supported the version of the appellants-accused were interrogated/examined during the investigation but none of them was produced at trial being witness. The record further suggested that hundreds of people joined the investigation in support of the defence version and also admitted by the Investigating Officer during his cross-examination. 26. The eye-witnesses were closely related to each other and the deceased. The eye-injured witnesses including Ali Imran, Muhammad Irfan, Muhammad Nadeem were real sons of the deceased. Whereas, Zahid PW was ,'behnoi' of above witnesses and Sagheer PW was their `phupha' . However, Omer Daraz PW was their employee and not produced during trial. 27. It is settled by now that statement of a witness related to deceased should be corroborated rather the statement of a worst enemy could be relied upon, if it inspires confidence and intrinsic worth of a statement is not shaken. It may be observed that mere relationship of the witnesses with the deceased is not a ground for discarding their statements when otherwise, confidence inspiring and finds corroboration from the independent witnesses. 28. At this stage, it may also be mentioned that Muhammad Irfan and Nadeem PWs were deaf and dumb. They claimed to have been examined by the Investigating Officer after two days of the occurrence but no such statement was available on record. Their statements under section 161, Cr.P.C were recorded on 09.12.2012 after about twenty five days of the occurrence. No plausible explanation was forthcoming on record for belated recording of their statements. A similar question came up before the Hon'ble Supreme Court of Pakistan in "Syed Saeed Muhammad Shah and another v. The State" (1993 SCMR 550), the relevant observations of their lordships appearing in para-28, read as under: "28. ...In this case unsatisfactory explanation which is not substantiated can be equated with no explanation. In the case Sikandar v. The State (PLD 1963 SC 17) there was controversy as to when police statement of eye-witness was recorded and in that regard there was choice between version of eye-witness and investigating officer. It was held that controversy is to be resolved on the basis of rule that benefit of doubt must be given to the accused hence evidence of that eye-witness was viewed with doubt. In the case of Ismail and others v. The State (1983 PCr.LJ 823) evidence of witnesses was ruled out of consideration on the ground that their police statements were recorded after 8 days and prosecution offered no explanation. In the case of Sirajuddin v. Kala and another (PLD 1964 SC 26), evidence of witness was held to be not reliable for the reason of patent doubt as to the time as he first appeared before the police for his statement." The above view was reiterated by the apex Court in "Muhammad Asif v. The State" (2017 SCMR 486) and "Rahat Ali v. The State" (2010 SCMR 584). 29. The witnesses including Muhammad Irfan and Nadeem also claimed to have sustained injuries at the hands of the accused including the appellant, namely, Amjad Latif and his co-accused. They were medically examined by Dr. Azmat Rafique (PW.10), who observed six injuries on the person of
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PW, namely, Nadeem and Exh.PP reflected that four injuries were sustained by Muhammad Irfan PW. All the injuries were abrasions, contusions and swellings, simple in nature. They also claimed to have severely beaten by the appellants along with their co-accused but no such torture/beating is borne out from the available record. The injured-eye-witnesses were at variance regarding material points. Muhammad Irfan (PW-7) described that Anjum Lateef appellant fired at the deceased hitting on his right temporal region which is contradicted by medical evidence. Whereas, Nadeem (PW-8) admitted that at the time of occurrence, his brother Ali Imran (complainant) was not with them. As mentioned above, the eye-witnesses including Muhammad Irfan and Nadeem were deaf and dumb. Their statements were recorded with the help of interpreter, namely, Muhammad Ashraf Instructor Deaf and Dumb School with the help of Surrya Nasreen Senior Headmistress of the same school. He was also examined during the investigation under section 161, Cr.P.C as reflected by Exh.DC and that the statement of the said eye-injured witnesses were also recorded with his help. All three were examined on 09.12.2012. Nothing can be gathered from the available record if both the injured were incapable to make statements till 09.12.2012 and for what reasons their statements under section 161, Cr.P.C were recorded after twenty five days of the occurrence. There is no statutory provision which specifically deals with the opportunity of recording evidence of a witness who is deaf and dumb, however, Article 3 of the Qanun-e-Shahadat, 1984 contemplates that all persons are competent to testify, unless they are prevented from understanding the questions put to them or from giving rational answers to those questions. Further Article 59 of the Qanun-e-Shahadat, 1984 read with section 543, Cr.P.C are relevant but they also do not directly deal with the mode of recording evidence of a deaf and dumb witness. As regards the precedent law in Pakistan, the question had been dealt with by the Hon'ble Supreme Court in judgment reported as Muhammad Mansha v. The State (2019 SCMR 64), wherein their lordships observed that the trial Court should determine the level of said witness's comprehension before recording his evidence and that section 543, Cr.P.C required that an interpreter shall be bound to state true dictation of such evidence or statement. The apex Court further observed that the trial Court should also administer oath to the person translating and in view of such violation of criminal procedural law, the conviction could not be sustained. 30. As mentioned above, to record statement of a deaf and dumb witness, there is no specific provision in Qanun-e-Shahadat, 1984. However, there is specific/provision in Indian Evidence Act, 1872, which deals with the statement of dumb person. The said section is reproduced for ready reference: (i) "119. Dumb witness---A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible as by writing or by signs; but such writing must be written and the signs made in open Court. Evidence so given shall be deemed to be oral evidence. 31. In case titled State of Rajastan v. Darshan Singh alias Darshan Lal, Supreme Court of India held that object of enacting the provisions of section 119 of the Evidence Act reveals that deaf and dumb persons were earlier contemplated in law as idiots. However, such a view has subsequently been changed for the reason that modern science revealed that persons affected with such calamities are generally found more intelligent and to be susceptible to far higher culture than one was once supposed. When a deaf and dumb person is examined in the Court, it has to exercise due caution and take care to ascertain before he is examined that he possesses the requisite amount of intelligence and that he understands the nature of his oath. On being satisfied on this, the witness may be administered oath by appropriate means and that also be with the assistance of an interpreter. However, in case a person can read and write, it is most desirable to adopt that method being more satisfactory than any sign language. The law required that there must be record of signs and not interpretation of signs.
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32. Now, we would prefer to separate the terms "deaf" and "dumb". Not all deaf are dumb, and not all dumb are deaf. Dumb in the sense "lacking the power of speech" is perceived as insulting when describing human (but not animals), probably DUMB also means stupid; "dull witted". The noun dummy in the sense means "person who lacks the power of speech". Dumb is the old English word that means "mute", "speechless" and itself came from an even older word "dheubh" meaning "confusion" "stupefaction" and dizziness. Today, dumb still means "unable to speak" but it does not have anything to do with intelligence. As adjective, the difference between deaf and dumb is that deaf is not having the faculty of hearing, or only partially able to hear while dumb is unable to speak; lacking power of speech. 33. The language of deaf and dumb is called sign language, and languages that use the visual/manual modality to convey the meaning. There is no universal sign language. There are more than three hundred different sign languages in use around the world. They vary from nation to nation. Along-with British sign language, there are several sign languages used by English speaking countries including USA (American sign language), Australia (Australian sign language). Ireland (Irish sign language) which is derived from French sign language but shares similarities with British Sign language. One of the most widely used sign languages around the world is Chinese sign language (CSL or ZGS), which has upto twenty million users. While indo Pakistani sign language has about eighteen million users across South Asia. 34. Let's have a look to find sign languages, their stories and their finger alphabets. The journey to communicating globally begins here. Sign language is a visual means of communicating through hand signals, gestures, facial expression and body language. Most people start their sign language journey by learning A-Z or alphabets equivalent in sign form. Use of the hands to represent individual letters of a written alphabet is called "finger spelling". For example, most sign languages have a specific sign for the word "tree" but may not have a specific sign for oak, so O.A.K would be finger spelled to convey that specific meaning. According to world Federation of Deaf, there are more than seventy million deaf people worldwide. The convention on the rights of persons with disabilities recognizes and promotes the use of sign languages. It makes clear that sign languages are equal in status to spoken language. UN General Assembly has proclaimed 23rd September as international day of sign languages in order to raise awareness of importance of sign languages in the full realization of the human rights of people who are deaf. 35. Languages, are more than words, like all other languages, communication by way of signs has some inherent limitations, since it may be difficult to comprehend what the user is attempting to convey but a deaf person need not be prevented from being a credible and reliable witness merely due to his/her physical disability. Such a person though unable to speak may convey himself through writing if literate or through signs and…
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