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Petitioner: The State VS Respondent: Muhammad Afzal
Court Name: Lahore High Court Judge(s): Sadiq Mahmud Khurram, Sohail Nasir Title: The State vs Muhammad Afzal Case No.:(1) Murder Reference No.35 of 2016 (2) Criminal Appeal No. 249-J of 2016
JUDGMENT
Reported As: 2021 LHC 1325 Result: Appeal allowed Judgment JUDGMENT SADIQ MAHMUD KHURRAM, J. Muhammad Afzal son of Nawab Ali and Muhammad Safdar Hussain alias Shabo son of Habib Ullah (convicts) were tried by the learned Additional Sessions Judge, Bahawalnagar along with their co-accused namely Muhammad Khalid and Fauji Muhammad Akram (both since acquitted) in case FIR No. 125 of 2015 dated 05.05.2015 registered at Police Station Dunga Bunga, District Bahawalnagar in respect of offences under sections 302, 392, 411 and 109 PPC for committing the Qatl-i-Amd of Riaz Ahmad son of Muhammad Siddique (deceased). The learned trial court vide judgment dated 29.04.2016 convicted Muhammad Afzal son of Nawab Ali and Muhammad Safdar Hussain alias Shabo son of Habib Ullah (convicts) and sentenced them as infra: Muhammad Afzal son of Nawab Ali:- i).Death under section 302(b) PPC as Tazir for committing Qatl-i-Amd of Riaz Ahmad (deceased) and directed to pay Rs.4,00,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased; in case of default thereof, the convict was further directed to undergo six months of simple imprisonment. The convict was ordered to be hanged by his neck till dead. ii).Rigorous Imprisonment for ten years under section 392 PPC and directed to pay Rs.50,000/- as fine; in case of default thereof, the convict was further directed to undergo three months of simple imprisonment. Muhammad Safdar Hussain alias Shabo son of Habib Ullah: i). Imprisonment for life under section 302(b) PPC as Tazir for committing Qatl-i-Amd of Riaz Ahmad (deceased) and directed to pay Rs.2,00,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased; in case of default thereof, the convict was further directed to undergo four months of simple imprisonment. ii).Rigorous Imprisonment for ten years under section 392 PPC and directed to pay Rs.50,000/- as fine; in case of default thereof, the convict was further directed to undergo three months of simple imprisonment.
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All the sentences awarded to both the convicts were ordered to run concurrently by the learned trial court. The convicts were also extended the benefit available under Section 382-B of Code of Criminal Procedure, 1898 (hereinafter referred to as "Cr .P.C.)" Muhammad Khalid and Fauji Muhammad Akram, the co-accused of the appellants, were, however , acquitted of the charges by the learned trial court. 2. Feeling aggrieved, Muhammad Afzal son of Nawab Ali (convict) lodged the Criminal appeal No.249-J of 2016 assailing his conviction and sentences. Feeling aggrieved, Muhammad Safdar Hussain alias Shabo son of Habib Ullah (convict) lodged the Criminal appeal No.531 of 2016 assailing his conviction and sentences. The learned trial court submitted Murder Reference No.35 of 2016 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Muhammad Afzal son of Nawab Ali. We intend to dispose of the Criminal appeal No.249-J of 2016, the Criminal appeal No.531 of 2016 and the Murder Reference No.35 of 2016 through this single judgment. 3. Precisely the facts necessary , as stated by Manzoor Ahmad son of Muhammad Siddique (PW-5), the complainant of the case, are as under:- "I as well as Riaz Ahmad deceased and Manzoor Ahmad son of Dewan PW jointly dealt in business of purchase and sale of wheat. About 10 months ago at about 7:00 p.m, I alongwith my brother Riaz (deceased) and Manzoor Ahmad son of Dewan were coming from Haroonabad on a motorcycle and we had an amount of Rs.30,40,000/- in a fertilizer bag, when we reached near Taillian Wala Pull, my brother Riaz decea sed was driving the motorcycle, suddenly , the accused persons Afzal and Muhammad Safdar came there, Afzal whose height was medium strong body and having beard and mustaches and I had also mentioned the salient feature of Safdar accused, they collieded (sic) their motorcycle with our motorcycle, on this we fell down. My brother Riaz (deceased) tried to apprehend the accused persons. Muhammad Afzal accused made a fire shot which hit on the left side of chest of deceased Riaz Ahmad who fell down there on the ground. The accused persons mentioned above after snatching the bag containing the amount mentioned above fled away from the spot. On our hue and cry Muhammad Shafique PW etc also attracted there. After leaving the PWs to safeguard the dead body of my deceased brother I went to the police station there I submitted an application Exh.PC for registration of case on the basis of which the present case was registered. The application bears my thumb impression the same was read over to me. I also thumb marked the FIR. After about three months after the occurrence an identification parade was conducted where I identified the accused persons Muhammad Afzal and Muhammad Safdar present in the Court as real culprits. After the identification parade after about 7/8 days Hoshiar and Abdul Jabbar PWs told us that they had gone to the police station and had seen Muhammad Afzal and Muhammad Safdar accused persons of this case and told that Muhammad Akram accused who is relative of Muhammad Afzal and Safdar Hussain accused had provided residence and shelter to them on the asking of Muhammad Khalid accused. The said PW had seen and overheard their conversation when Khalid accused was asking to Muhammad Akram accused while standing in front of the door that to provide shelter Muhammad Afzal and Safdar Hussain and they will help them in every corner after the commission of of fence and thereafter they took them into their house. " 4. After the formal investigation of the case report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court wherein the appellants namely Muhammad Afzal son of Nawab Ali and Muhammad Safdar Hussain alias Shabo son of Habib Ullah along with their co-accused namely Muhammad Khalid and Fauji Muhammad Akram (both since acquitted) were sent to face trial. The learned trial court framed the charge against the accused on 29.09.2015, to which the accused pleaded not guilty and claimed trial. 5. The prosecution in order to prove its case got recorded statements of eleven witnesses. Manzoor Ahmad son of Muhammad Siddique (PW-5) and Manzoor Ahmad son of Dewan (PW-6) gave evidence regarding the ocular account. Mahmood Akhtar 855/C (PW-1) stated that on 05.05.2015 he escorted the dead body of the deceased to the hospital for its post mortem examination and also received the last worn clothes of the deceased from the Medical Officer. Kalim Ullah, 1365/C (PW-2) stated that on 24.08.2015 Muhammad Arif 313/HC (PW-7) handed over to him two sealed parcels said to contain pistols for their onward transmission to the office of Punjab Forensic Science Agency , Lahore .Abdul Jabbar (PW-3) stated that at the time of the post mortem examination of the
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deceased he identified his dead body and also gave evidence with regard to the abetment of Fauji Muhammad Akram and Muhammad Khalid (both since acquitted). Shah Ali Patwari (PW-4) stated that he prepared the scaled site plan of the place of occurrence (Exh.PB). Asad Ullah Siraj, learned Magistrate, (PW-9) stated that on 05.08.2015 he conducted the test identification parade proceedings (Exh. PN/1-8) of the appellants namely Muhammad Afzal son of Nawab Ali and Muhammad Safdar Hussain alias Shabo son of Habib Ullah. Riaz Ahmad 27/C (PW-8) stated that on 11.05.2015 Muhammad Arif 313/HC (PW-7) handed over to him two sealed parcels said to contain blood stained earth and empties which parcels he deposited in the Punjab Forensic Science Agency , Lahore. Muhammad Azmat, SI (PW-11) investigated the case from 05.05.201 5 till 22.08.2015, arrested the appellants on 30.07.2015 and narrated the facts of investigation as conducted by him in his statement before the learned trial court. 6. The prosecution got examined Dr. Hafiz Muhammad Salman Riaz (PW-10) who on 05.05.2015 was posted as Medical Officer at DHQ Hospital, Bahawa lnagar and on the same day conducted the postmortem examination of the dead body of Riaz Ahmad (deceased). Dr. Hafiz Muhammad Salman Riaz (PW-10) on examining the dead body of the deceased Riaz Ahmad observed as under:- "INJURIES. 1. A lacerated wound measuring 1 CM x 1 CM on the left side of chest, five CM from sternum in first intercostals space with burning and blackening were present around the wound. This wound with inverted margins was entry wound. 2. A lacerated wound measuring 1.5 x1.5 CM in the middle of back about 1.5 CM away from thoracic vertebrae near left flank region. This wound with everted margins was exit wound. OPINION. According to my opinion the cause of death in this case was due to the injury to the major blood vessels of thorax. This injury to the major blood vessels was caused by injury No.1 and injury No.2 by firearm weapon. Probable time between injury and death was within half an hour and between death and post mortem was within 12 hours. According to my final opinion sever bleeding caused by haemorrage (sic) of major blood vessels of thorax lead to haemorrhagic (sic) shock and death of the deceased person. Post mortem report is Exh. PO which is in my hand and bears my signatures. After the postmortem examination I handed over last worn clothes, dead body and relevant papers to the police. I also signed inquest report Exh.PP and injury statement Exh.PQ. The diagrams Exh.PQ/1 & Exh.PQ/2 showing the seat of injury is also signed by me." 7. On 13.02.2016 the learned Assistant District Public Prosecutor gave up the prosecution witnesses namely Nisar Ahmad and Hushiar Ali as being unnecessary and on 03.03.2016, the learned Assistant District Public Prosecutor gave up the prosecution witnesses namely Muhammad Shafique and Nisar Ahmad as being unnecessary . On 01.04.2016, the learned Assistant District Public Prosecutor closed the prosecution evidence after tendering the report of Punjab Forensic Science Agency , Lahore (Exh.PV) regarding blood stained earth and the report of Punjab Forensic Science Agency , Lahore (Exh.PU) regarding the comparison of the empties and the pistols. 8. After the closure of prosecution evidence, the learned trial court examined appellants namely Muhammad Afzal son of Nawab Ali and Muhammad Safdar Hussain alias Shabo son of Habib Ullah under section 342 Cr.P.C. and in answer to question why this case against you and why the PWs have deposed against you, they replied that they were innocent and had been falsely involved in the case. They further stated that they had not committed the occurrence and had been made a scapegoat in the case in order to show efficiency by the police. The appellants namely Muhammad Afzal son of Nawab Ali and Muhammad Safdar Hussain alias Shabo son of Habib Ullah opted not to get themselves examined under section 340(2) Cr .P.C and did not adduce any evidence in their defence. 9. On the conclusion of the trial, the learned Additional Sessions Judge, Bahawalnagar convicted and sentenced the appellants as referred to above. 10. The contention of the learned counsel for the appellants is that whole case is fabricated and false. The learned counsel for the appellants argued that the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence to prove the same. The learned counsel for the appellants further contended that the statements of Manzoor Ahmad son of Muhammad Siddique (PW-5) and
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Manzoor Ahmad son of Dewan (PW-6) were not worthy of any reliance. He furthe r contended that the appellants were neither nominated in the FIR nor in the statements of witnesses recorded on the first day and the test identification parade proceedings as conducted were full of procedural defects and of no legal worth and value. The learned counsel for the appellants also argued that the recoveries were full of procedural defects, of no legal worth and value and result of fake proceedings. The learned counsel for the appellants finally submitted that the prosecution has totally failed to prove the case against the appellants beyond the shadow of a doubt. 11. On the other hand, the learned Deputy Prosecutor General contended that the prosecution has proved its case beyond shadow of doubt by producing independent witnesses. The learned Deputy Prosecutor General further argued that the deceased died as a result of injuries suffered at the hands of the appellants in a joint enterprise. The learned Deputy Prosecutor General further contended that the medical evidence also corroborated the statements of Manzoor Ahmad son of Muhammad Siddique (PW-5) and Manzoo r Ahmad son of Dewan (PW-6). The learned Deputy Prosecutor General further argued that the recoveries of the weapons and the looted amount also corroborated the ocular account. The learned Deputy Prosecutor General further contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offenders with the innocent in this case. Lastly , the learned Deputy Prosecutor General prayed for the rejection of appeals. 12. We have heard the learned counsel for the appellants, the learned Deputy Prosecutor General and with their assistance have perused the record and evidence recorded during the trial. 13. The whole prosecution case revolves around the statements of Manzoor Ahmad son of Muhammad Siddique (PW-5) and Manzoor Ahmad son of Dewan (PW-6). These witnesses namely Manzoor Ahmad son of Muhammad Siddique (PW-5) and Manzoor Ahmad son of Dewan (PW-6) were related to each other as well as the deceased. Their relationship with the deceased is also on record. The deceased namely Riaz Ahmad was the real brother of Manzoor Ahmad son of Muhammad Siddique (PW-5) and also closely related to Manzoor Ahmad son of Dewan (PW-6). Manzoor Ahmad son of Muhammad Siddique (PW-5) and Manzoor Ahmad son of Dewan (PW-6) further stated in their cross examination that the witnesses namely Manzoor Ahmad son of Muhammad Siddique (PW-5) and Manzoor Ahmad son of Dewan (PW-6) were not the residents of the place of occurrence and were residents of Mauza Gulab Ali which was at a distance away from the place of occurrence. Manzoor Ahmad son of Muhammad Siddique (PW-5) during cross-examination admitted that his residence was at a distance of 1/2 kilometre from the place of occurrence. Manzoor Ahmad son of Muhammad Siddique (PW-5) during cross-examination admitted as under:- "The distance between the place of occurrence and my residence is about half KM. Similar distance is of the residence of other PWs." Manzoor Ahmad son of Dewan (PW -6) during cross-examination admitted as under:- "My residence is at a distance of about one KM from the place of occurrence." It is an admitted aspect of the prosecution case that none of the prosecution witnesses namely Manzoor Ahmad son of Muhammad Siddique (PW-5) and Manzoor Ahmad son of Dewan (PW-6) had their residences or their places of business at the place of occurrence. They were both "chance witnesses". We have also perused the scaled site plan of the place of occurren ce (Exh.PB) as prepared by Shah Ali Patwari (PW-4) and the rough site plan of the place of occurrence (Exh.PR) as prepared by Muhammad Azmat, SI (PW-11) and find that neither any house nor any shop belonging to both eye witnesses is marked in the same. A further doubt has crept into the case of the prosecution with respect to the presence of both the witnesses namely Manzoor Ahmad son of Muhammad Siddique (PW-5) and Manzoor Ahmad son of Dewan (PW-6) at the time of occurrence, at the place of occurrence. According to the statements of both the witnesses, at the time of occurrence they along with the deceased were riding on a motorcycle when the appellants came at the place of occurrence and hit the motorcycle being driven by the said witnesses and the deceased and after being hit, the said witnesses along with the deceased fell on the ground. Manzoor Ahmad son of Muhammad Siddique (PW -5) in his examination-in-chief stated as under:- "they collided their motorcycle with our motorcycle, on this we fell down." Similarly , Manzoor Ahmad son of Dewan (PW -6) in his examination-in-chief stated as under:-
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"Two unknown motorcyclist one of them was man of medium height stout body having beard and moustaches, the second one was also stout and of the same height came in front us and collided their motorcycle with us. We fell down from the motorcycle." According to the above referred portions of the statements of both the witnesses namely Manzoor Ahmad son of Muhammad Siddique (PW-5) and Manzoor Ahmad son of Dewan (PW-6) both the witnesses and the deceased while in a moving condition on a motorcycle were hit and all of them fell on the ground. In that scenario, necessarily both the witnesses as well as deceased must have suffered some injuries on their bodies due to them falling on the road after being hit. However , during the course of investigation both the witnesses namely Manzoor Ahmad son of Muhammad Siddique (PW-5) and Manzoor Ahmad son of Dewan (PW-6) never appeared before any Medical Officer nor any Medico Legal Examination Certificates were issued with regard to them so as to verify their narrative that while travelling on a motorcycle they had been hit by the motorcycle of the appellants and had consequently fallen on the road. We have also gone through the statement of Dr. Hafiz Muhammad Salman Riaz (PW-10) who on 05.05.2015 was posted as Medical Officer at DHQ Hospital, Bahawalnagar and on the same day conducted the postmortem examination of the dead body of Riaz Ahmad (deceased) and find that he also did not observe any injury on the body of the deceased which could have been a result of him falling on the road after being hit by the motorcycle of the appell ants. We have also perused the recovery memo (Exh.PG) whereby the motorcycle (P-14) under the use of the deceased and the witnesses was taken into possession and find that Muhammad Azmat SI (PW-11), the Investigating Officer of the case, did not observe any marks on the same to verify that the same had been hit by another motorcycle. Furthermore, to accentuate these omissions in the case of the prosecution, during the whole investigation Muhammad Azmat, SI (PW-11) the Investigating Officer of the case, did not collect any evidence regarding the assertion of the witnesses namely Manzoor Ahmad son of Muhammad Siddique (PW-5) and Manzoor Ahmad son of Dewan (PW-6) that they along with the deceased were running the business of sale and purchase of wheat. Not a single statement of any witness was recorded in support of the said assertion of the eye witnesses. Muhammad Azmat, SI (PW-11) the Investigating Officer of the case , even did not verify that what was the business of the witnesses and from where they had collect ed the amount of Rs.30,40,000/- which they were carrying with them on the day of occurrence and which amount was robbed. Moreover , during the investigation of the case no statement of any witness was recorded with whom the deceased or the witnesses had entered into any transaction on the day of occurrence which would have substantiated the case of the prosecution. All these omissions are conspicuous by their absence. In absence of physical proof of the reason for the presence of the witnesses at the crime scene the same cannot be relied upon. In this respec t reliance is placed on the case of Muhammad Rafiq v. State (2014 SCMR 1698 ) wherein the august Supreme Court of Pakistan rejected the claim of witnesses who lived one kilometer away from the occurrence, but on the day of occurrence stated to be present near the spot as they working as labourers, inasmuch as they failed to give any detail of the projects they were working on. Reliance is also placed on the case of "Usman alias Kaloo v. State" (2017 SCMR 622) and the case of Nasrullah alias Nasro v. The State (2017 SCMR 724). We have also noted that the alleged eye witnesses namely Manzoor Ahmad son of Muhammad Siddique (PW-5) and Manzoor Ahmad son of Dewan (PW-6) were not mentioned in column No.4 or page 4 of the inquest report (Exh.PP) as being the ones who were present at the time of preparation of the said inquest report (Exh. PP) by the investigating officer. These witnesses were also not the ones who had identified the dead body of the deceased at the time of the postmortem examination of the same. All these omissions are conspicuous by their absence. In absence of physical proof or the reason for the presence of the witnesses at the crime scene, the same cannot be believed. 14 There is no denial to this fact that Riaz Ahmad son of Muhammad Siddique lost his life in this unfortunate incident, but the fact remains that the names of the assailants were not ment ioned in the written application (Exh.PC) as submitted by Manzoor Ahmad son of Muhammad Siddique (PW-5) for the registration of the case and the F.I.R (Exh.PC/1) was lodged agains t unknown accused persons. Subsequently , both the witnesses namely Manzoor Ahmad son of Muhammad Siddique (PW-5) and Manzoor Ahmad son of Dewan (PW-6) got recorded their statements under section 161 of the Code of Criminal Procedure, 1898 on 06.06.2015, wherein they not only
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named the appellants as accused who had committed the occurrence but also gave all the details with regard to their particulars. Manzoor Ahmad son of Muhammad Siddique (PW -5) during cross-examination stated as under:- "It is correct that on 6.6.2015 when I nominated the accused persons I had not described the reason for their naming out. It is correct that in my statement dated 06.06.2015 I had not described the role of the accused persons nominated by me."Manzoor Ahmad son of Dewan (PW -6) during cross-examination stated as under:- "It is correct that I had not mentoned the reason while nominating the accused persons in my supplementary statement dated 06.06.2015. Moreover , I had not also stated the role of the accused persons." Muhammad Azmat (PW-11), the Investigating Officer of the case in his statement recorded by the learned trial court stated as under:- "On 6.6.2015 complainant and witnesses Manzoor Ahmad, Muhammad Shafique came to the police station and got recorded their supplementary statement s by nominating accused persons Muhammad Afzal and Muhammad Safdar present in the Court. It is correct that when the complainant Manzoor Ahmad PW and Muhammad Shafique PW made statement before me on 6.6.2015 till then I had not arrested the accused persons Afzal and Muham mad Safdar . It is correct that in that statement the address of the accused persons has been mentioned." The above referred portion of the statements of the prosecution witnesses clearly reflects that the identity and the particulars of the appellants were in the knowledge of Manzoor Ahmad son of Muhammad Siddique (PW-5) and Manzoor Ahmad son of Dewan (PW-6), therefore, there did not exist any reason for the said witnesses not to have named the appellants as accused on the day when the F.I.R was being registered. Moreover , when every detail regarding the assailants was disclosed by Manzoor Ahmad son of Muhammad Siddique (PW-5) and Manzoor Ahmad son of Dewan (PW-6) through their statements recorded under section 161 Cr.P.C. on 06.06.2015 then the holding of test identification parade even otherwise was an exercise in futility . The question begs an answer that when Manzoor Ahmad son of Muhammad Siddique (PW-5) and Manzoor Ahmad son of Dewan (PW-6) both new about the details of the accused then for what purpose the test identification parade was held. We have also noted that the arrest of the appellants was affected after the witnesses namely Manzoor Ahmad son of Muhammad Siddique (PW-5) and Manzoor Ahmad son of Dewan (PW-6) had got recorded their statements recorded under section 161 Cr.P.C. on 06.06.2015. The description of the appellants was so vivid and detailed that out of the whole province of Punjab the appellants were identified and arrested by Muhammad Azmat (PW-11) , the Investigating Officer of the case . This illustrates the futility of holding a test identification parad e of the appellants who were so clearly named and already identified by the witnesses namely Manzoor Ahmad son of Muhammad Siddique (PW-5) and Manzoor Ahmad son of Dewan (PW -6). 15. The learned Deputy Prosecutor General has laid much stress on the fact that the appellants were identified by the witnesses during test identification parade proceedings. The august Supreme Court of Pakistan in the case of Mian SOHAIL AHMED and others Vs. The State and others (2019 SCMR 956)…
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