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Official Citation: 2024 LHC 5030
Court / Jurisdiction: Lahore High Court
Year of Decision: 2023
Decision Date: 2023-12-31
Parties: Muhammad Nawaz, Sharafat Ali, vs The State etc, Muhammad Talal etc, JUDGMENT
Ruling Summary: This decision was rendered by the Lahore High Court on 2023-12-31, officially reported as 2024 LHC 5030. In this matter between Muhammad Nawaz, Sharafat Ali, and The State etc, Muhammad Talal etc, JUDGMENT, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2024LHC5030
Court Name: Lahore High Court Judge(s): Muhammad Tariq Nadeem Title:Muhammad Nawaz, Sharafat Ali, vs The State etc, Muhammad Talal etc,
JUDGMENT
Reported As: 2024 LHC 5030, PLJ 2025 Cr.C. 44 Result: Appeal Accepted Judgment
JUDGMENT MUHAMMAD TARIQ NADEEM, J.:- Through this single judgment, I intend to decide Criminal Appeal No.83167 of 2023, filed by Muhammad Nawaz appellant against his conviction and sentence along with Crl. Revision No.2407 of 2024, filed by Sharafat Ali complainant for enhancement of sentence of Muhammad Nawaz (appellant) as well as Crl. Appeal No. 2404 of 2024, filed by Sharafat Ali complainant against the acquittal of Muhammad Talal co-accused/ respondent No.1 being originated from judgment dated 01-12-2023, passed by learned Additional Sessions Judge, Lahore, in private complaint titled "Sharafat Ali vs. Muhammad Nawaz and another" under sections 302, 324, 337-F(iii) and 34 PPC, emanated from case FIR No.2559 of 2021, under sections 302, 324, 337- F(iii) and 34 PPC, registered at Police Station Manawan, Lahore, whereby the trial court while acquitting Muhammad Talal co-accused, convicted and sentenced Muhammad Nawaz appellant as under:- Under Section 302(b) PPC: - Life Imprisonment for committing murder of Salman Ali with direction to pay compensation under Section 544-A, Cr.P.C. to the tune of Rs.5,00,000/- to the legal heirs of deceased, recoverable as arrears of land revenue, or in default thereof to further undergo simple imprisonment for six months. However, benefit of section 382-B Cr.P.C. was extended in his favour. 2. The prosecution story as given in the judgment of the trial court reads as under:-
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"...Facts leading to filing of instant private complaint are that complainant party is having agricultural land at Mouza Lakhaodair. On 21.11.2021, complainant's brothers Muratab Ali, Salman Ali, and Sakhawat Ali were sowing wheat crop in their fields where they saw that accused Nawaz and Talal opened water in their fields. Complainant's brothers Salman etc. forbade them due to which accused Muhammad Nawaz became infuriated and went away while extending threats to them. At about 01:30 p.m. complainant's brother Muratab Ali called the complainant through mobile phone No. 0308-4124726 on his mobile phone No.0300-4046035 and told the entire episode. Complainant asked him not to quarrel with them and that he himself was coming. Thereafter, complainant on his own vehicle ACG-730 reached at the spot and saw that accused Muhammad Nawaz was quarreling with his brothers Salman Ali, Sakhawat Ali and Muratab Ali and in his view accused Muhammad Nawaz made fire shot with his pistol which landed on left arm and armpit of Salman Ali who fell down in injured condition. Complainant stepped ahead to save Salman Ali on which accused Muhammad Talal made fire-shot on Muratab Ali with his pistol which landed on his left thigh and he also fell down in injured condition. The accused persons while making firing fled away from the spot. Complainant made call on mobile police emergency number and while boarding Salman Ali in vehicle was shifting him to Shalimar Hospital who succumbed to the injuries on reaching hospital which was confirmed by doctors. Complainant then went to police station and moved application Ex-PA for registration of case. Muratab Ali injured was shifted to Services Hospital by Sakhawat Ali, who remained under treatment there. Initially FIR No.2559/2021, under sections 302, 34, 324, 337-F(iii) PPC, at police station Manawan, Lahore was registered against the accused persons, but feeling aggrieved with investigation of said case FIR, the complainant filed the instant private complaint Ex PE..." 3. After recording cursory statements of complainant and PWs, the accused were summoned to face trial. The trial court, after observing all the pre-trial codal formalities, framed charge against the appellant and his acquitted co-accused under sections 302, 34, 324 and 337-F(iii) PPC, to which they pleaded not guilty and claimed trial. In order to prove its case, the prosecution produced as many as 02 PWs and 10 CWs. The ocular account of the incident in issue had been furnished by Sharafat Ali complainant (PW.1) and Muratab Ali injured (PW.2). Syed Muhammad Younus Bukhari, Draftsman appeared as CW.1, who prepared scaled site plan of the place of occurrence. Ulfat Hayat, Inspector (CW.10) was the investigating officer of the case, who stated about various steps taken by him during the course of investigation. Medical evidence was furnished by Doctor Waqas Ahmad (CW.4) and Doctor Mohsin Munawar (CW.9). The remaining evidence produced by the prosecution was formal in nature. The prosecution gave up Irfan Ali 5368/C, Ghulam Sabir 17396/C and Adil Saeed 5393/C PWs being unnecessary and while tendering in evidence reports of the Punjab Forensic Science Agency, Lahore (Exh.PG and Exh.PH) closed its evidence. 4. Thereafter, statements under section 342 Cr.P.C. of the appellant and his acquitted co-accused were recorded in which they denied the allegations leveled against them and professed their innocence. While answering to a question, "why this case is against you and why PWs deposed against you? Muhammad Nawaz appellant stated as under:- "The real facts have been suppressed by complainant. In fact, at about 12:00/01:00 noon time, deceased and Muratab Ali came to our Dera alongwith brothers and they made indiscriminate firing upon me. His brothers were armed with 'kulhari'. The deceased and Sakhawat Ali gave 'kulhari' blows on my father's head and other parts of body. Resultantly, he was injured, whereas, the deceased made indiscriminate firing upon him. Our vehicles were also parked at our Dera. Fires made by complainant party hit to the vehicles and the bullets reflected from vehicles and one of the bullet hit to Salman Ali at his left armpit while other one bullet hit to Muratab Ali on his left thigh. As I was seriously injured by them, Muratab Ali alongwith deceased decamped. Muratab Ali was
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shifted to Services Hospital, Lahore where he was admitted at 01:15 p.m, on 21.11.2022, whereas, deceased was shifted to his house, who ultimately succumbed to the injuries. The complainant was not present there and later on after 3/4 hours of death of deceased, the deceased was shifted to hospital. When complainant who was on duty in traffic police at Lahore City reached in the hospital and came to know this fact that Salman Ali had expired and Muratab Ali was injured, then he cooked up a false and fabricated story of occurrence at 02:00 p.m on 21.11.2021. He lodged FIR with due deliberation and consultation after about 4/5 hours. It is also pertinent to mention here that the complainant has not mentioned that he was wearing his uniform and his shirt became blood stained due to lifting of his brother, neither in FIR nor in inquest report and even in his evidence before the Court. The complainant party after legal advice thought that presence of complainant be established in any manner, because he was on his duty as traffic constable at Lahore City, then he cooked up a false and incorrect story of blood stained uniform/shirt just to prove his presence at the scene of occurrence. This story is also false from the fact that if the blood stained shirt of complainant was available at the time of lifting dead body of the deceased, the name plate of the complainant must have been on the shirt, which was later on taken into possession but same is not available on the said shirt. The availability of shirt and taking the same into possession on very first day is also not proved. If the shirt had been taken into possession on very first day of registration of FIR, then same must had been sent to Punjab Forensic Science Agency when empties and blood stained earth were sent to Punjab Forensic Science Agency. Non- sending of shirt with the blood stained earth and empties also proves that it was not in possession of police. Furthermore, till 28.12.2021 this shirt was not sent to Punjab Forensic Science Agency, when allegedly recovered pistol was sent to Punjab Forensic Science Agency on 29.12.2021 with delay of about one month and eight days after alleged occurrence and this delay shows the false managing of shirt of the complainant. It is also important to mention here that the place of occurrence has been changed because it is admitted by the prosecution witnesses that there was no place in the land of the accused party, where any source of watering of agricultural field of complainant was available at the alleged place of occurrence. The said land belongs to three other persons who are neither witnesses nor having any concern with the complainant party. The place where alleged occurrence has been shown by the complainant party is on the lower pedestal than the land of complainant party and there is a "Banna" (heap) of four feet height from alleged place of occurrence and land of complainant and no water can flow from place of occurrence to the land of complainant party. Hence, whole story of occurrence narrated by complainant party in FIR as well as in complaint is false, fabricated, concocted having no legs to stand upon. As, we have separated our land from the complainant party and we were in possession of Dera, complainant party wants to usurp our land and Dera that is why deceased etc. attacked upon our Dera and injured me as well as my father Nawaz and by suppressing all these injuries on our persons, they have concocted up a false and fabricated story of occurrence, which has been proved as false during the trial. The appellant and his acquitted co-accused did not opt to appear as their own witnesses on oath as provided under Section 340(2) of the Code of Criminal Procedure, 1898, in disproof of the allegations leveled against them, however, appellant produced Doctor Shah Rukh (CW.11) in his defence evidence. 5. The trial court vide judgment dated 01-12-2023 found the appellant guilty, convicted and sentenced him as mentioned above, however, acquitted his co-accused namely Muhammad Talal of the charges through the same judgment by giving him the benefit of doubt, hence, these appeals and criminal revision before this Court. 6. It is contended by learned counsel for the appellant that although FIR is shown to have been promptly lodged within a period of just 45 minutes after the occurrence but being dissatisfied from
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the police investigation, Sharafat Ali complainant (PW.1) filed private complaint (Exh.PE) with a delay of five months and six days just to fill up the lacunas left in FIR, similarly post mortem examination on the dead body of Salman Ali (deceased) was conducted with a considerable delay of nine hours which reflects that prosecution witnesses were not present at the time and place of occurrence and police remained busy in procuring and planting fake eyewitnesses and cooking up a false story for the prosecution before preparing police papers necessary for getting a favourable postmortem examination report; that although Muratab Ali (PW.2) has been shown as injured PW but it is not necessary that whatever he has stated is a gospel truth and his statement is to be seen in the light of parameters and guidelines settled by the superior Courts of the country; that the prosecution has badly failed to prove the mode and manner of occurrence described in the crime report; that presence of Muratab Ali injured (PW.2) at the time and place of occurrence, i.e. 02.00 p.m. on 21.11.2021 is negated from Rapat No.11 dated 21.11.2021 (Exh.DE), according to which, on the same day at 01.15 p.m. he was admitted in Services Hospital, Lahore; that the alleged eyewitnesses have made dishonest improvements to their previous statements, for the reason, their evidence is not reliable; that with regard to the recovery of pistol from the possession of Muhammad Nawaz appellant and positive report of PFSA, learned counsel for the appellant stated that the same are inconsequential for the prosecution case because empties were sent to the office of PFSA on 06.12.2021, i.e. after 15 days of the occurrence which shows that empties were secured subsequently and not during spot inspection after the occurrence; that motive has already been disbelieved by the trial court through cogent and convincing reasons; lastly submitted that the appeal filed by Muhammad Nawaz appellant be allowed and he be acquitted of the charge. 7. Contrarily, learned counsel for the complainant argued that it was a daylight occurrence, the appellant and the accused party being inter se close relatives and residents of the same vicinity were known to each other, for the reason, there was no chance of misidentification of the accused; that the FIR had also been promptly lodged, leaving no room for the accused to claim that the matter was reported to the police with due deliberation and consultation; that so far as the delay in post mortem examination on the dead body of Salman Ali (deceased) is concerned, one person Muratab Ali (PW.2) was in injured condition whereas Salman Ali had already lost his life, therefore, it was prime consideration of the complainant party to save the life of Muratab Ali injured (PW.2), in this way, delay in post mortem examination is not helpful to the defence; that the presence of Sharafat Ali, complainant (PW.1) and Muratab Ali injured (PW.2) is fully proved and despite lengthy cross-examination upon the above mentioned PWs, nothing favourable to the defence could be brought from their mouths; even otherwise, Muratab Ali (PW.2) is also injured witness which further established his presence at the time and place of occurrence; that mere this fact that both the PWs are real brothers of Salman Ali (deceased) is not a justifiable ground to disbelieve their evidence, because, they admittedly had no previous animosity to falsely entangle the accused persons in this case, similarly, this fact does not appeal to a prudent mind that due to their kinship with the deceased, they would spare the real perpetrator and entangle the accused falsely; that Rapat No.11 dated 21.11.2021 (Exh.DE) is a photocopy and has illegally been exhibited by the trial court despite objection of complainant's counsel and the same can be brushed aside by this Court. To substantiate this contention, learned counsel for the complainant has placed reliance upon case- law titled as "Sana Ulah vs. The State" (1990 P.Cr.L.J. 466). He further maintained that the prosecution witnesses were not cross-examined on material points and it is settled proposition of law that if a portion of examination-in-chief is not cross-examined then the same will be deemed to have been admitted. Reference was made to the case-laws titled as "Dr. Javed Akhtar vs. The State" (PLD 2007 SC 249), "Ghulam Qadir Patani vs. The State" (2007 P.Cr.L.J. 1435) and "Arbab Tasleem vs. The State" (PLD 2010 SC 642); that defence has taken a specific plea during cross- examination upon the PWs that complainant party of FIR case assaulted upon the accused party
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on 21.11.2021 at 01.30 p.m. but failed to prove the same, in this way, occurrence is admitted by the defence, although with a slightly different mode and manner. Further argued that if a party takes a specific plea then the burden of proof shifts upon him. Reliance was placed upon the case-laws titled as "Ashiq Hussain alias Muhammad Ashraf vs. The State" (PLD 1994 SC 879), "Mst. Mumtaz Begum vs. Ghulam Farid and another" (2003 SCMR 647) and "Muhammad Javed vs. The State" (2015 SCMR 864); that site plan is not substantive piece of evidence as observed in the case-law reported as "Elahi Bakhsh vs. Rab Nawaz and another" (2002 SCMR 1842); that the trial court has acquitted Muhammad Talal accused merely on the basis of ipse dixit of police which is not binding upon the court. Learned counsel for the complainant has placed reliance upon the case-law titled as "Anwar Shamim and another vs. The State" (2010 SCMR 1791). Lastly submitted that the prosecution has proved its case up to the hilt through trustworthy and confidence inspiring ocular account, which is duly supported by medical evidence and corroborated by recovery of weapon of offence, for the reason, the appeal filed by Muhammad Nawaz (appellant) be dismissed; criminal revision filed by the petitioner (complainant) be accepted and normal penalty of death be awarded to Muhammad Nawaz appellant/respondent and impugned judgment of acquittal of Muhammad Talal co-accused/ respondent be set aside and he be also punished in accordance with law. The learned Deputy Prosecutor General while adopting the arguments of learned counsel for the complainant supplicated for the dismissal of appeal against conviction filed by Muhammad Nawaz appellant. 8. I have heard the arguments of learned counsel for the appellant as well as learned counsel for the complainant and learned Deputy Prosecutor General assiduously and also scanned the record minutely with their able assistance. 9. The occurrence in this case allegedly took place on 21.11.2021 at 2.00 p.m. and the matter was reported to the police on the same day at 02.45 p.m., i.e. within a period of 45 minutes but post mortem examination on the dead body of Salman Ali (deceased) was conducted on 21.11.2021 at 11.00 p.m., i.e. with the delay of nine hours. It has been clearly mentioned in crime report (Exh.CW6/A) and private complaint (Exh.PE) that after the occurrence, Sharafat Ali complainant (PW.1) made a call to police emergency number and escorted Salman Ali, in injured condition, to Shalamar Hospital who succumbed to the injuries while reaching hospital, whereas, other injured namely Muratab Ali was shifted by his brother Sakhawat Ali to Services Hospital for the purpose of treatment. In this way, both the injured were shifted to hospitals immediately. According to the statement of Dr. Mohsin Munawar (CW.9), time that elapsed between injury and death of Salman Ali was within few minutes, while between death and post mortem examination was 9 to 15 hours. His (CW.9) statement further reflects that the dead body of Salman Ali (deceased) was received in the department on 21.11.2021 at 04:00 p.m. He (CW.9) further stated in his cross-examination that documents were received at 10:15 p.m. on 21.11.2021 and post mortem examination was conducted by Dr. Zain Asif at 11:00 p.m. Besides, Ulfat Hayat, Inspector/I.O. (CW.10) has admitted in his cross- examination that the police documents were provided to the doctor at 10:45 p.m. i.e. eight hours and forty minutes after the occurrence, thus, the delay in conducting post mortem examination cannot be attributed to the doctor. Keeping in view the above mentioned gross delay in the post mortem examination, an adverse inference can be drawn that the prosecution witnesses were not present at the time and place of occurrence and the intervening period had been consumed in fabricating a false story after preliminary investigation, otherwise there was no justification of such delay for conducting post mortem examination on the dead body of the deceased. Wisdom is derived from the case-laws tilted as "Muhammad Ilyas vs. Muhammad Abid alias Billa and
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others" (2017 SCMR 54), "Muhammad Adnan and another vs. The State and others" (2021 SCMR 16) and "Iftikhar Hussain alias Kharoo vs. The State" (2024 SCMR 1449). 10. Furthermore, Sharafat Ali complainant (PW.1), while changing the prosecution version as reproduced supra, filed private complaint (Exh.PE) with the delay of five months and six days that too without giving any plausible reasoning qua such delay, meaning thereby, the private complaint was filed after due deliberation and consultation just to fill up the lacunas left in the FIR. I fortify my view from the dictum laid down in case-law titled as "Muhammad Azad vs. Ahmad Ali and 2 other" (PLD 2003 Supreme Court 14) wherein it was held as under:- "Admittedly the private complaint on the basis which the cognizance was taken by the trial Court and the entire evidence was adduced against the respondent Ahmad Ali was filed belatedly i.e. after about three months and four days, for which no explanation of any sort was furnished either at the trial or thereafter". 11. Coming to the ocular account, I have observed that both the eyewitnesses, i.e. Sharafat Ali complainant (PW.1) and Muratab Ali injured (PW.2) were the real brothers of Salman Ali (deceased). Record reflects that on the day of occurrence, Sharafat Ali complainant (PW.1) and Muratab Ali (PW.2) were serving in police department. I have noted that Sharafat Ali complainant (PW.1) has failed to justify his presence at the time and place of occurrence because he could not establish through any solid evidence that he was on leave at the date and time of occurrence. Relevant portion of his cross-examination is mentioned below:- "I have been serving in Police Department since 26.07.1997. On 21.11.2021, I was closed to line. Generally police officials enter their arrival and departure in Roznamcha. I used to enter my departure and arrival in Roznamcha of Mobeen Shaheed, Manawan Police Lines. On 20.11.2021, I received message on my phone when I was at my home that I had to proceed to Mall-II for duty at 03.00 p.m. Said message was transmitted be duty officer lines. I do not remember his name. On 20.11.2021 I was posted at Shadman traffic sector and I departed from there to my home. I was closed to line from said Shadman traffic sector. Rapat regarding my said departure was incorporated in Roznamcha of Shadman traffic sector. Again said departure Rapat is not incorporated in the Roznamcha. I do not remember that on 20.11.2021 who was Muharrer of the said traffic sector. On 21.11.2021 my arrival was not incorporated in Roznamcha but I was told that my duty was at Mall Road. On 21.11.2021, I had not yet joined my duty. I do not remember whether I had produced the said text message before the investigating officer sent to me by the duty officer lines. It is incorrect to suggest that I have deliberately suppressed this fact. It is incorrect to suggest that I am intentionally concealing and suppressing the name of Muharrer. It is incorrect to suggest that I am also suppressing this fact that on 21.11.2021, I was on my duty and my duty was assigned by Muharrer through Rapat Roznamcha." So far as the duty hours of Muratab Ali injured (PW.2) are concerned, he has stated in his cross- examination as under:- "I am serving in Police Department. During the days of occurrence I was performing duty at office of CCPO, Lahore. My place of duty is at a distance of ten kilometers from my residence. It is incorrect to suggest that I am deposing falsely in this regard. My duty starts at about 09.00 a.m. and ends at about 05.00 p.m. or 10.00 p.m. ------------------------------------ Being driver my departure and arrival is not to be incorporated in Roznamcha. It is correct that when departure of police officer is incorporated in Roznamcha then name of accompanying driver is also mentioned therein. On 21.11.2021, I was posted as driver with Syed Mubashar Hussain Shah, PR-II to CCPO, Lahore. I was on leave on 21.11.2021. I had not produced any written proof before the I.O. during investigation that I was on leave on 21.11.2021. "
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In the light of above-mentioned portion of cross-examination upon Muratab Ali injured (PW.2), it is abundantly clear that he also remained unable to prove that he was on leave on the date and time of occurrence. To establish his presence at the spot, Sharafat Ali complainant (PW.1) produced his blood-stained shirt before Ulfat Hayat, Inspector/ I.O. (CW.10) on 21.11.2021, which was allegedly taken into possession vide memo (Exh.CW3/C), but contrary to the above stance of the complainant, Ulfat Hayat, Inspector/ I.O. (CW.10) has stated in his cross-examination that the complainant had also not mentioned that he produced his blood stained shirt to the police at the time of recording of FIR. He (CW.10) further stated that he had not described in the site plan that the complainant showed him any blood-stained shirt. He (CW.10) has also not mentioned this fact in the police proceedings or in the inquest report. Ulfat Hayat, Inspector/I.O (CW10) has stated in his cross-examination as infra:- "It is correct that no name plate of name of complainant Sharafat Ali was on the shirt P-9. It is also correct that in the recovery memo Ex.PC it is not mentioned that the shirt of complainant which is shirt of uniform of city traffic police contains the name plate of Sharafat Ali. " Similarly, Faqeer Hussain 12655/C (CW.3) who is a witness of recovery of Shirt (P-9) has narrated in his cross-examination as infra:- "I had mentioned in my statement u/s 161 of Cr.P.C. that I and Amjad Ali/C alongwith Ulfat Hayat/ Inspector reached the place of occurrence. Confronted with Exh. DC wherein not so recorded. I had not…
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