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Petitioner: YASIR VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Manzoor Ahmad Malik, Muhammad Anwar Bhaur Title: YASIR vs THE STATE Case No.: Criminal Appeal No, 173 of 2004 and Murder Reference No, 921 of 2004 Date of Judgment:2010-05-26 Reported As: 2010 YLR 2344 Result: Appeals accepted
JUDGMENT
JUDGMENT ' MUHAMMAD ANWAR BHAUR, J.---Yasir son of Muhammad Ashraf, Mst. Rabia daughter of Muhammad Hussain and Muhammad Zafarullah son of Imam Din were tried by the learned Additional Sessions Judge, Bahawalpur for committing murder of Sajjad Ahmad deceased, brother of Mehtab Ahmad-complainant, in case F.I.R.No, 7, dated 6-1-2003, registered with Police Station Civil Lines, Bahawalpur for an offence under section 302/34, P.P.C. The learned trial Judge by virtue of his judgment dated 19-5-2004 found Ysir and Mst. Rabia guilty of the charge, convicted each of them under section 302(b) P.P.C. And sentenced Yasir to death and Mst. Rabia to imprisonment for life with a further direction to pay a sum of Rs,50,000 each to the legal heirs of the deceased as compensation, under section 544-A, Cr.P.C. Or in default thereof to undergo simple imprisonment for six months each. Benefit of section 382-B, Cr.P.C. Was, however, extended to Mst. Rabia-convict. The said learned Judge by giving benefit of doubt to Muhammad Zafarullah acquitted him of the said charge. 2. Yasir-convict by filing Criminal Appeal No, 173 of 2004/BWP, whereas Mst. Rabia-convict by filing Criminal Appeal No,200 of 2004/BWP have called in question the conviction and sentence awarded to them through the impugned judgment, whereas the learned Additional Sessions Judge has sent Murder Reference No, 921 of 2004 to seek confirmation or otherwise of the death sentence awarded to Yasir-convict/appellant, Mehtab Ahmadcomplainant has filed Criminal Appeal No,202 of 2004/BWP against the acquittal of Muhammad Zafarullah and has also filed a Criminal Revision No, 102 of 2004 seeking enhancement in the sentence of Mst. Rabia-appellant to the maximum. We propose to dispose of all these matters together through this single judgment.
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3. Occurrence in the instant case took place on 6-1-2003 at 2-30/3-00 a.m. In the area of Model Town C-Block, situate at a distance of one kilometer from Police Station Civil Lines, Bahawalpur, Mehtab Ahmad-complainant (P.W.1.) reported the matter at the Police Station by making an application (Exh.PA), on the basis whereof Abid Akhtar, Inspector/S.H.O. (P.W.10) drew up F.I.R. (Exh.PA/1) on the same day at 8-15 a.m. Without any addition or alteration on his part. 4. Concisely the prosecution story as mentioned in the application (Exh.PA), on the basis whereof F.I.R. (Exh.PA/1) was registered, was that Mehtab Ahmadcomplainant (P.W.1.) used to run a jewellery shop at Fawara Chowk, Bahawalpur by the name and style of New Awami Jewellers and his brother Sajjad Ahmad was also running a jewellery shop by the name and style of New Sajjad Jewellers adjacent to the shop of the complainant; his brother Sajjad Ahmad had two wives, his first marriage had taken place about twenty years ago, whereas he contracted second marriage with Mst. Rabia-appellant about twelve years ago; Mst. Rabia was a divorcee from one Fiaz and was mother of a son out of the said wedlock; Yasir Chaudhary-appellant, who was on visiting terms with his brother Sajjad Ahmad used to come to his house in order to develop his friendship; in this garb, he developed illicit liaison with Mst. Rabia and Sajjad Ahmad had a suspicion of the said relationship; a few days before, his brother Sajjad Ahmad had shown anger on coming to know of the illicit liaison between Yasir and Mst. Rabia and had stopped Yasir-appellant from coming to his house and disconnected his affairs with Yasir-appellant; on the last evening at about 6-00 p.m., Yasir-appellant came at the shop of his brother Sajjad Ahmad, whereupon an altercation took place between the two and he was also called by his brother at his shop, where his brother reprimanded Yasirappellant by saying him that he is a "BayGhairat" and he should have no connection with his wife in his absence, whereupon Yasir-appellant left the shop in an angry mood; on 5-1-2003, at about 9-00 p.m. His brother Sajjad Ahmad, taking his cousin Muhammad Afzal and uncle Nazar Muhammad in confidence, informed them that some one by making obnoxious calls in different voices was issuing him threats, due to which he was worried; on that night, his brother Sajjad Ahmad had to spend night in the house of Mst. Rabia; Sajjad Ahmad secretly asked Muhammad Afzal and Nazar Muhammad to stay at upper storey of his house in Model Town-C so as to watch Mst. Rabia; during the night; i.e, on 6-1-2003, at about 2-30/3-00 a.m., on hearing hue and cry, Muhammad Afzal and Nazar Muhammad came down from the upper storey and went to the bedroom of Sajjad Ahmad; they saw that Yasirappellant while armed with a pistol 30-bore was present there, whereas Mst. Rabia caught hold of her husband, i.e, Sajjad Ahmad, while guard/Chowkidar of the house carrying firearm, was present in the door connecting the bedroom of children and Sajjad Ahmad; within the sight of the aforesaid witnesses, Yasir-appellant made three fire shots with his pistol, first landed on left side of neck, second on left arm and third on right arm of Sajjad Ahmad; Yasirappellant and Zafar (since acquitted) due to fear, locked the witnesses in the storeroom, bolted the door from outside and asked them to remain silent, otherwise they will be done to death; after a short while, on hearing voice of starting of the car, the witnesses raised hue and cry, due to which some child opened the door from outside; immediately thereafter, the complainant on receipt of information regarding the incident, reached the spot and saw that a car Honda Civic Model 2000 bearing registration No, BRH/550 was missing and Zafar guard and Mst. Rabia were also not present there, whereas the children were present in the room being semi- conscious. According to the complainant, Yasirappellant in connivance of Mst. Rabiaappellant and Muhammad Zafar (since acquitted) has committed the crime in question and has also taken away the dead body of Sajjad Ahmad along with some gold ornaments and cash amount etc. Resultantly, the instant F.I.R. Was recorded. 5. Immediately after registration of the case, investigation into the crime was carried out by Abid Akhtar, Inspector/S. H. O. (P. W.10), who after completing the same submitted challan against the accused before the Court for their trial in accordance with law.
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6. On receipt of the challan, the trial Court completed all legal formalities and framed a charge against the accused, to which they pleaded not guilty and claimed to be tried. The prosecution in order to prove its case produced as many as eleven witnesses, namely, Mehtab Ahmadcomplainant (P. W. 1.), Muhammad Afzal (P. W. 2), Saj id Mehtab (P. W. 3), Syed Gul Hassan, Patwari Halqa (P.W.4), Dr. Rao Muhammad Javaid Akhtar (P.W.5), Atta Muhammad (P. W.6), B il al Mustafa, constable (P.W.7), Shah Zarin, MHC (P.W.8), Mazhar Hussain, constable (P.W.9), Abid Akhtar, Inspector/S.H.O. (P. W. 10) and Sajjad Hussain, S.-I. (P.W.11). 7. Learned Prosecutor by giving up rest of the witnesses being unnecessary and tendering in evidence reports of Chemical Examiner (Exhs.PQ to PU), those of the Serologist (Exhs.PV to PY) and report of Forensic Science Laboratory (Exh.PZ) closed the prosecution case. 8. After closure of the prosecution evidence, all the incriminating material was put to the accused under section 342 Cr.P.C. To seek their standpoint, who denied the allegations brought against them and claimed their absolute innocence in the matter. Yasir and Mst. Rabia-appellants, while answering questions "Why this case against you and why the P.Ws. Have deposed against you?" and "Have you anything else to say?" stated as under:- ' YASIR APPELLANT: "The said case is based on enmity and suspicion. All the P.Ws. Produced by the complainant are related inter se and the deceased. So much so the Deputy District Attorney is also related to the P.Ws. Although the P.Ws have deposed falsely and knew nothing about the occurrence. I have been falsely involved as a scapegoat. Complainant party is richest Zargar of Area and the Investigating Officer to satisfy them wrongly involved me. "Have you anything else to say? ' Ans: I am innocent, I have been wrongly involved in this case, Investigation was conducted dishonestly and cruel in the manner. I was tortured, kept in illegal confinement. The whole process is ridiculous. The F.I.R, was recorded belately. I produced certified copy of Register Dak Bhai dated 6-1-2003 , 8-1-2003 of the P.S. Civil Lines Exh.DN. The Case Diaries were manipulated. The I.O. Was on leave from 8-1- 2003 to 12-1-2003. I produced certified report No,14 of Roznamcha Waqiati of the P.S. Civil Lines, Bahawalpur dated 8-1- 2003 Exh.DL. And Report No,32 of Roznamcha dated 12-1-2003 Exh.DM, but denied in the Court. No case property was handed over as proved by certified copy of Report No,27 of P.S. Civil Lines dated 12-1-2003 Exh. D.N. During the whole investigation, I was kept in illegal confinement and tortured. I was also threatened to be killed". ' He relied upon certain copies of the Rapats, which were produced in defence as Exhs.D0 to DBB to show that he was tortured by the police. ' He neither opted _ to adduced evidence in defence nor to make statement on oath under section 340(2), Cr.P.C. ' Mst. Rabia; "This case is registered against me "Have you anything else to say? ' I am innocent. I led my happy life with my deceased husband and out of our wedlock five children were born. I was second wife of deceased Sajjad and complainant other members of the family were not happy with me. We were not on good terms with the complainant family and complainant did not join in my ceremony celebrated by us. After the death of my husband, my children were sent out of the house and took the possession of the house without my permission. Complainant concocted his false story mentioned in the F.I.R. And falsely entangled me in the instant case". ' She did not opt to make statement on oath under section 340(2) Cr.P.C., however, she opted to adduce evidence in defence and produced copy of W.P. No,2244 as Exh. DCC and the order of the
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Hon'ble Judge of High Court dated 29-7-2003 as Exh .DCC/1. 9. Upon culmination of trial, the trial Court proceeded to pronounce verdict of guilt against the appellants, convicted and sentenced them as aforementioned. 10. The learned counsel for Yasirappellant in support of his appeal (Criminal Appeal No,173/2004/BWP) argued that the F.I.R. In the instant case was recorded after due deliberations and consultation, which is clear from the following circumstances:-- (a) In the F.I.R., it is mentioned that Sajjad Ahmad was caused injuries with firearm weapon and thereafter he was removed from the scene of occurrence and the case was registered at 8-15 a.m. On 6-1-2003 and at that time admittedly it was not in the knowledge of any of the prosecution witnesses that Sajjad Ahmad has died but even then the case was registered under sections 302/34 P.P.C.; (b) The bare reading of the Inquest Report (Exh.PQ) reveals that the same was admittedly prepared after the registration of the case but in that report in the relevant column of "Mukhtasir Halaat Muqadama" same facts are mentioned as were stated in the F.I.R. There is no mention in the inquest report (Exh.PQ) that dead body was recovered from the car of the deceased at the instance of Yasir appellant and even the name of the person, who as per prosecution, saw the appellant in the car (wherefrom the dead body was recovered) is also not mentioned therein; (c) All the developments, which, as per prosecution, took place after the registration of the case and prior to the postmortem are not mentioned in the inquest report (Exh. PQ). ' The learned counsel further argued that it is the case of the prosecution that the deceased Sajjad Ahmad was caused injuries in his bedroom with fire-arm at about 2-30/3-00 a.m. On 6-1-2003, when he was in his bed and to substantiate this allegation the prosecution has cited two witnesses in the F.I.R., namely, Muhammad Afzal (P.W.2) and Nazar Muhammad (given up P.W.). But both are not inmates of the house. Out of these two, one, namely, Nazar Muhammad was given up and the other, namely, Muhammad Afzal (P.W.2) is admittedly permanent resident of Jalalpur Pirwala, which is at a distance of 60/70 kilometers from the place of occurrence, though he has stated that he was temporarily residing at Bahawalpur in the other house of the deceased, where his first wife was putting up but even that residence is about two kilometers away from the place of occurrence; that the reason advanced by Muhammad Afzal (P.W.2), for his presence at the spot was that he was asked by the deceased to remain present in his house as he had suspicion of the elopement of his wife Mst. Rabia-appellant with Yasir-appellant because Sajjad (deceased) had a strong suspicion that she had illicit liaison with Yasir and that Yasir had even a quarrel with him and extended him threats and also made obnoxious calls. The reason stated by this witness, is not only improbable rather impossible because elopement, in this way, cannot be stopped because Mst. Rabia-appellant, even as per prosecution's case, was not in confinement of the deceased; that this witness (P.W.2) has made a number of dishonest improvements to justify his presence at the spot and to bring his statement in line with the prosecution story; that in his statement before the police, the reasons given for his presence in the house of the deceased are different from those which he stated before the Court; that in his statement recorded by the police (Exh.DA), he has not stated anything regarding disappearance of Sajjad, but in the Court he has stated that Sajjad (deceased) was also taken away by Yasir and Mst. Rabia-appellants; that this witness has stated that after the incident, he along with Nazar Muhammad (given up P.W.) was locked in the room by the appellant and on his hue and cry the door was opened by one of the children of the deceased, but the name of the child has not been disclosed and even during the investigation, the police has not recorded the statement of any one of the children, who were the most natural witnesses, sleeping in the adjacent room having a door with the bed room of Sajjad (deceased) and even as per prosecution witness the door remained opened during the incident; that the complainant (P.W.1) has admitted in his cross-examination that the deceased had five children
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from Mst. Rabia and all were putting up with her in the same house, where the occurrence allegedly took place and eldest amongst them was not less than eleven years of age and, as such, the statements of the children of the deceased could be the best evidence for the prosecution but the same has not been recorded during the investigation or produced before the trial Court, therefore, an adverse inference in view of Article 129(g) of the Qanun-e-Shahadat Order, 1984 can be drawn against the prosecution; that statement of Muhammad Afzal (P.W.2) is of such a nature that it should be brushed aside straight away, but if it is to be considered, even then it must be corroborated by other circumstances of the case, which are absolutely missing in this case as there is no corroboration rather his statement as in direct conflict with the medical evidence available on the record because he has stated that Yasir-appellant fired three shots, first landed on left side of the neck of the deceased, second on his right arm and the third on his left arm, whereas as per postmortem report (Exh.PN) there are five firearm wounds on the person of the deceased, which are on the temporal region, neck and both arms and wounds on the neck are exit wounds and are result of the injury which is on the left temporal region of the deceased; that even recovery of piston (P19), taken into possession through memo Exh.PK is of no avail to the prosecution as empties were recovered from the spot on 6-1-2003, whereas pistol was allegedly recovered on 12-1-2003 and both the items were sent to the Firearm Expert together on 18-r-2003, therefore, positive report of the Firearm Expert (Exh.PZ) carries no value and places reliance on the cases of Ali Sher v. The State (2008 SCM R 707) and Mushtaq and 3 others v. The State (PLD 2008 SC 1). ' The learned counsel further submitted that the prosecution case is that the dead body of the deceased was lying in the Diggy of the car at village Feroza, which is admittedly at a distance of 120 kilometers from the place of occurrence and it was witnessed by Atta Muhammad (P.W.6), but the testimony of this witness does not inspire confidence because of the following reasons:- ' He has stated that Feroza is a town and the Police Post is at a distance of one kilometer from the place where the car was struck, but surprisingly there is no mention of this incident or availability of the dead body in the car in the police record of said Police Post despite the fact that this witness (P.W.6) has stated that one person in plain clothes visited the spot, inspected the dead body, went back and then came again, but the record produced by Ghulam Mohy-udDin, S.-I. (C.W.1) of the relevant Police Post shows that no such incident was reported to the police. ' The learned counsel also submitted that the motive part of the prosecution story is that Mst. Rabia-appellant was having illicit liaison with Yasir-appellant and the relevant witness in this respect was Mehtab Ahmad-complainant (P.W.1), brother of the deceased, who categorically stated that he never saw Yasir-appellant in the house of the deceased and he has no direct information about their illicit relations, and he was told by his father and that he never saw Mst. Rabia and Yasir-appellants together, but, the father was not cited as a witness and his statement was not even recorded by the police, therefore, there is no evidence on the record, which could prove the motive part of the occurrence. Reliance in this behalf has been placed on the case of Noor Muhammad v. The State and another (2010 SCMR97). ' The learned counsel submits that even the statement of Atta Muhammad (P.W.6), if accepted, does not connect the appellant with the commission of the main offence. Reliance in this behalf has been placed on the case of Zulfiqar Haider v. State 2003, PCr.LJ 1036. ' The learned counsel argued that the prosecution has produced another witness, namely, Sajjad Hussain, S.-I. (P.W.11), who claims that he, on the asking of the Investigating Officer, went to the Feroza along with Sajid Mehtab (P.W.3), took the dead body into possession and seized the car under section 550 Cr.P.C., came back to Bahawalpur and handed over the same to the Investigating Officer, but to the contrary, the Investigating Officer (P.W.10) has not said a single word that he has deputed the said witness to go to Feroza and his evidence is also contradicted by
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the fact that Sajid Mehtab (P.W.3) has not stated that he accompanied this witness (P.W.11) to Feroza and there was no occasion or jurisdiction for this witness for taking the car into possession under section 550 Cr.P.C. At the end the learned counsel submits that the prosecution case is fully of contradictions and doubts, therefore, Yasirappellant is entitled to the benefit thereof. 11. The learned counsel for Rabiaappellant in Criminal Appeal No, 200 of 2004/BWP while adopting the arguments addressed by Mr. Azam Nazeer Tarar, learned counsel for Yasir-appellant, adds that the prosecution case is that Mst. Rabiaappellant had illicit liaison with her co-accused Yasir- appellant but there is no legally admissible evidence in this respect on the record as none of the witnesses has stated that he ever saw Mst. Rabia with Yasir-appellant in an objectionable condition, so much so, two witnesses, namely, Mehtab Ahmad (P.W.1) and Muhammad Afzal (P.W.2) have not even stated that they saw Yasir and Mst. Rabia together in the house of Sajjad Ahmad deceased, where the occurrence allegedly took place; that the allegation against Mst. Rabia, as per statement of Muhammad Afzal (P.W.2), is that when Yasir-appellant fired at Sajjad Ahmad deceased, she was holding him from his legs, which is not believable as for causing a firearm injury, there is no need to hold a person from his legs; that there is only one statement in this case regarding the occurrence and that is of Muhammad Afzal (P.W.2), who is admittedly related to the deceased and is also his employee; that blood stained dopatta (P14), Shalwar (P15), shirt (P16), bed sheet (P17) along with a cover of pillow (P18) were taken into possession through memo Exh.PJ on 7-1-2003, from the same house (where the occurrence allegedly took place) at the instance of Mst. Rabia is not believable because it was taken into possession from the same house, wherefrom certain articles were taken into possession by the Investigating Officer on 6-1-2003. ' The learned counsel for both the appellants lastly prays for acquittal of the appellants keeping in view the facts and circumstances revolving around the matter and the evidence available on the record. 12. The learned Additional Prosecutor General Punjab assisted by the learned counsel for the complainant opposes these appeals on the grounds that the prosecution has proved the motive part of the story because Mehtab Ahmad (P.W.1) has clearly stated that Yasir-appellant had developed illicit liaison with Mst. Rabia and his brother Sajjad Ahmad had suspicion thereof; that it is also mentioned in the statement of Mehtab Ahmad-complainant (P.W.1) that in his presence his brother reprimanded Yasir by stating that "you are Baigharat and you should not have any connection with Mst. Rabia", therefore, the contentions of the learned counsel for the appellants that there is no evidence of motive is against the record; that the reasons given by Muhammad Afzal (P.W.2) for his presence in the house where the occurrence took place is natural and in accordance with the prevalent customs of the area; that presence of Muhammad Afzal (P.W.2) in the house of the deceased is probable, if it is seen in the context of the whole scenario as the deceased was receiving obnoxious calls and threats, therefore, in order to protect him and in order to stop the expected elopement of his wife, he asked Muhammad Afzal (P.W.2) and Nazar Muhammad (given up PW) to come to his house and be available at the relevant time and moreover that witness (P.W.2) has no enmity with the appellants to depose falsely against them and in such situation his presence at the place of occurrence, at the relevant time cannot be doubted or disputed; that there is no conflict between the ocular account and the medical evidence as Muhammad Afzal (P.W.2) has stated that Yasir-appellant fired three shots, which hit the deceased on the neck and arms and as per doctor (P.W.5) and postmortem report (Exh.PN) there are three wounds of entry; that the argument of the learned counsel for the appellants that the children of the deceased were not examined is of no avail because it is not the case of the prosecution that the children witnessed the occurrence, and if they were material witnesses, then they could be examined as defence witnesses; that statement of Muhammad Afzal (P.W.2) is very natural and confidence inspiring. He has stated that when he (P.W.2) and Nazar Muhammad
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(given up PW) were sure that the appellants have gone, they knocked the door, made hue and cry and thereafter the door was opened by one of the children and in his statement before the Court he (P.W.2) has also stated that when he came out, Sajjad Ahmad deceased was not there; that the evidence of Atta Muhammad (P.W.6), cannot be doubted because he is an independent witness having no relation or connection with the complainant and having no enmity towards the appellants. He has categorically stated that he witnessed the dead body of Sajjad Ahmad deceased in the Diggy of a car bearing registration No, BRH-550 and at the relevant time Yasir- appellant was in the car and Yasir (appellant) stated before him that he has committed the murder and thereafter a man from the Police Post wearing plain clothes came there, inspected the dead body and as the case stood already registered at the Police Station Civil Lines Bahawalpur, therefore, no proceedings were conducted at Police Post Feroza; that all the circumstances; if taken into consideration together prove the guilt of the appellants; that the appellants have not produced a single witness to substantiate their stance taken during the cross-examination of prosecution witnesses; that the conduct of Mst. Rabia-appellant is…
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