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Petitioner: Khalil-Ur-Rehman and others VS Respondent: The State and others
Court Name: Lahore High Court Judge(s): Sadaqat Ali Khan, Sadiq Mahmud Khurram Title: Khalil-Ur-Rehman and others vs The State and others Case No.: Criminal Appeal No.66-J of 2018 and Murder Reference No.104 of 2017 Date of Judgment:2020-09-22 Reported As: 2021 MLD 671 Result: Appeal allowed
JUDGMENT
JUDGMENT SADIQ MAHMUD KHURRAM, J.---- Khalil-ur-Rehman son of Chiri Rehman (convict) was tried by the learned Additional Sessions Judge, Rawalpindi along with his cc-accused namely Jamil son of Chiri, Naimat son of Hanif Ullah and Hidayat Ullah son of Hanif Ullah (all since acquitted) in the case instituted upon the private complaint titled "Javed Iabal v. Khalil ur Rehman and 3 others " (relating to FIR No. 615 of 2015 dated 14.06.2015 registered at Police Station Airport, District Rawalpindi) in respect of offences under sections 302 and 34, P.P.C. for committing the Qatl-i-Amd of Sami ul Haq son of Javed Iqbal (deceased). The learned trial court vide judgment dated 02.12.2017, convicted Khalil-ur-Rehman son of Chiri Rehman (convict) and sentenced him as infra: Khalil-ur-Rehman son of Chiri Rehman: Death under section 302(b), P.P.C. as Tazir for committing Qatl-i-Amd of Sami ul Haq son of Javed Iqbal (deceased) and directed to pay Rs.200,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased, in case of default there of, the convict was further directed to undergo six months of simple imprisonment. The convict was ordered to be hanged by his neck till dead. The co-accused namely Jamil son of Chiri, Naimat son of Hanif Ullah and Hidaya t Ullah son of Hanif Ullah were acquitted by the learned trial court. 2. Feeling aggrieved, Khalil-ur-Rehman son of Chiri Rehman (convict) lodged Criminal appeal No.66-J of 2018 against his conviction and sentence through jail. The learned trial court submitted Murder Reference No.104 of 2017 under section 374, Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Khalil-ur-Rehman son of Chiri Rehman. We intend to dispose of the Criminal Appeal No. 66-J of 2018 and Murder Reference No.104 of 2017 through this single judgment. 3. Precisely the facts necessary , as divulged in the statement of Javed Iqbal son of Raza Khan (PW-4) are as under:-
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"Stated that on 14.6.2015, Sahib Gul and Nabiur Reham came in our house as a guest to receive their son who was arriving from Oman to Pakistan. I served meal upon them and after GUPSHAP my son Sami Ullah now deceased who was driver of Nihmat Ullah accused also came in house. On said date, neither was electric facility in my house nor space for sleeping of guest. My son Sami Ullah deceased asked me that he brought the guest with him for sleeping in the godown of presen t accused Nihmat Ullah. He along with my other son Zabi Ullah PW went with the guest for sleeping in godown. After offering fujar prayer I made telephonic call to Sahib Gul my guest who responded me that they were going to Airport. Sahib Gul also told me that due to them altercation took place in the night in between Sami Ullah and Khalil-ur -Rehman present accused. He also told me that Sami Ullah and Khalil-ur - Rehman delivered abuses to each other however , they rescued them and settled down the matter but Khalil-ur - Rehman present accused continusely (sic) gave intimidation of dire consequence s. After that I went to purchase vegetables from vegetable market as I was dealing in vegetable. After purchasing vegetable I reached at about 8:15 a. m in my shop. In the meanwhile my son Zabi Ullah PW came with me in weeping condition. I inquired the reason behind in weeping and also gave water for drinking then he told me that Nihmat Ullah, Hadayat, Jamil and Khalil-ur -Rehman have beaten Sami Ullah togetherly (sic). Leaving the shop I rushed to the police chowky which was near to the godown where I inquired from the police and they told me that my son received injuries and they shifted him in BBH hospital Rawalpindi. When I reached in hospital I met with Jamil and HadayatUllah accused. I have already knowledge with regard to the occurrence but 1 went to emergence ward to my son but doctor did not allow me to see my son due to his critica l condition. In the meantime my son Haroon, Zabi Ullah and my brother Shouaib also reached in the hospital. On the asking of police I got recorded my statement as was narrated by my son Zabi Ullah PW to the police. Police also inquired from Zabi Ullah PW who also told the same facts as I have already told to the police. I made telephonic call to Sahib Gul and Nabi-ur -Rehman at that time they were reached near Attock Bridge. I told them with regard to the occurrence and presence of my son in BBH hospital in injured condition. At that time Sahib Gul told me that in league of right altercation Khalil-ur -Rehman accused committed murder of my son as he was giving criminal intimidation to my son in the night time. I asked to Sahib Gul to come with me he replied that he is on motorway and after reaching next U-turn/turning stop he will come Rawalpindi. At the time of my statement in hospital police satisfied me that 1 should take care my son they would definitely arrest the real culprits. At about 12/12:30 p.m doctor of BBH hospital referred my son to DHQ hospital for his operation of head injuries. We shifted Sami Ullah my son of DHQ hospital where my guest Sahib Gul etc and other relative also reached in DHQ hospital where doctor conducted operation of my son and police visited the place of occurrence in the company of Sahib Gul and Nabi-ur -Rehman, Haroon-ur -Rasheed and Zabi Ullah. My son Sami Ullah died in the mid night of 15/16.6.2015. We went to our village for his burial and on 26.6.201 5 we came back to Rawalpindi. Police of P.S Airport summoned us, I along with my sons Zabi Ullah and Haroon went to police of PPS Airport. Police recorded my statement and Zabi Ullah and Haroon were directed to reach the place of occurrence whereas police went to the place of occurrence on white colour car and after visiting the place of occurrence came back to PPS. I am poor man accused committed cruelty'and also committed murder of my son they may be punished in accordance with law ." 4. The accused i.e. the appellant and his co-accused namely Jamil son of Chiri, Naimat son of Hanif Ullah and Hidayat Ullah son of Hanif Ullah (all since acquitted),were summoned to face trial in the case instituted_ upon the private complaint titled "Javed lqbal v. Khalil ur Rehman and 3 others " (relating to FIR No. 615 of 2015 dated 14.06.2015 registered at Police Station Airport, District Rawalpindi ) in respect of offences under sections 302 and 34, P.P.C. for committing the Qatl-i-Amd of Sami ul Haq son of Javed Iqbal (deceased). The learned trial court framed the charge against the accused on 26.07.2016, to which the appellant pleaded not guilty and claimed trial. 5. The complainant in order to prove its case got statements of as many as four witnesses recorded. The ocular account of the case was furnished by Zabi Ullah (PW-1). Saeed Gul alias Sahab Gul (PW-2) stated that he witnessed the altercation between the appellant and the deceased prior to the murder of the deceased. Haroon ur Rasheed (PW-3) stated that on 15.06.201 5 he was informed about the occurrence by his brother Zabi Ullah (PW-1) and he further stated that on 26.06.2015 , the appellant got recovered a cement block and a piece of brick which were taken into possession by the Investigating. Javed Iqbal (PW-4) made the statement as reproduced in
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paragraph No. 3 of the judgment. The learned trial court also examined as many as eight witnesses as court witnesses. Khurram Shahzad draftsman (CW-1) prepared the scaled site plan of the place of occurrence (Exh.CA).Mushtaq Hussain Shah 2044/C (CW-2) stated that on 16.06.2015 he escorted the dead body of the deceased for the post mortem examination and also received the last worn clothes of the deceased. Akhtar Mehmood 4251/HC (CW-3) stated that on 15.06.2015 Muhammad Yaqoob, SI (CW-7) handed over to him one sealed parcel said to contain blood-stained clothes and on 16.06.2015 the Investigating Officer handed over to him three sealed phials and he handed all the said parcels to Mazhar Abbas 587/C (CW-8) on 05.7.2015 for their onward transmission to Punjab Forensic Science Agency , Lahore . Muhammad Saeed SI (CW-6) stated that on 15.06.2015 he recorded the formal FIR (Exh. CG).Rana Muhammad Yaqoob, SI (CW-7) investigated the case from 15.06.2015 till 10.07.2015, arrested the appellant on 26.06.2015 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court. 6. The learned trial court also examined Dr. Muhammad Jamal ud Din (CW-5), who on 15.06.2015 was posted as Medical Officer at Benazir Bhutto Hospita l, Rawalpindi and on the same day examined Sami UI Haq son of Javed Iqbal (then injured later deceased). Dr. Muhammad Jamal ud Din (CW-5) on examining Sami UI Haq son of Javed Iqbal (then injured later deceased ) observed as under: "Stated that on 15.06.2015, I examined Mr. Sami-ul-Haq son of Javed lqbal who was brought in the hospital in injured state by Jamil-ur -Reham 'son of Char -ur-Rehman. Clothes Shalwar Qameez blood stained. On general, physical examination he was confuse/semiconscious Gcs 1 1/15. Following injuries noted. 1. Marked swelling and echymosos of both eyes with a lacerated wound over the right eye size 2.5cm. Eye consultation please. 2. Swelling of both sides of face. 3. Deformity with depression of left side of mouth and mandible. 4. A lacerated wound measuring 2.5 cm over the chin. 5. Swelling of the upper lip. 6. Broken teeth with bleeding from mouth. Dental consultation please. 7 Bleeding from left Ear . ENT consultation. 'Referred to surgical unit SU-I for management and expert opinion please. Advise X-ray skull. APPELLANT and LAT. X-ray facial bones. X-ray chest P/A. X-ray mandible A/P and LA T. Nature of injury . Kept under observation. Kind of W eapon.... Blunt. Possibility of fabrication. Nil. Probable duration of injuries. W ithin 10 to 12 hours approximately ." The learned trial court also examined Dr. Ahmad All (CW-4) , who on 16.06.2015 was posted as Medical Officer at DHQ Hospital, Rawalpindi and on the same day conducted the postmortem exami nation of the dead body of Sami ul Haq son of Javed Iqbal (deceased). Dr. Ahmad Ali (CW-4), on examining the dead body of Sami ul Haq son of Javed Iqbal (deceased)observed as under: "It was a dead body of young man wearing white Shalwar , Qameez with postmortem staining and rigor mortis present with injuries as below . Injuries. 1. A stitched wound about 3 cm long on right side of chin with three stiches on it. 2. Stitched wound about 2.5 cm long on middle of chin about the injury No.1 with two stitches on it. 3. A stitched wound about 2.5 cm long on right eye brow with two stitches on it. 4. A surgical stitched wound U-shaped on left parieto occipital region of skull with 13 stitches on it. 5. Bilateral raccoon's eye. 6. Swelling of both cheeks more on right side. 7. Depressed left side of face. REMARKS BY MEDICAL OFFICER.
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After conducting the postmortem, 1 am of the opinion that injuries to the skull (specially at 04) caused severe damage to the brain and its vessel resul ting in his death. However final opinion regarding cause of death will be given after reports of chemical examination. Probable time that elapsed:24 hours. Time between death and postmortem: within six hours. " 7. On 08.07.2017 the complainant gave up the witness namely Nabi ur Rehman as being unnecessary and on 25.10.2017, the learned ADPP , on the request of the complainant, gave up the witnesses namely Akbar Ali and Khair ur Rehman as being unnecessary . On 28.10.2017 the learned ADPP closed the prosecution evidence after tendering in evidence the report of Punjab Forensic Science Agency , Lahore regarding detection of poison (Exh.CF) and the report of Punjab Forensic Science Agency , Lahore regarding the examination of the piece of cloth (Exh.CP). 8. After the closure of prosecution evidence, the learned trial court examined the appellant namely Khalil-ur- Rehman son of Chiri Rehman under section 342, Cr.P.C. and in answer to questio n why this case against you and why the PWs have deposed against you, he replied that he had been involved in the case falsely and was innocent. The appellant namely Khalil-ur-Rehman son of Chiri Rehman opted not to get himself examined under section 340(2), Cr .P.C. and did not adduce any evidence in his defence. 9. On the conclusion of the trial, the learned Additional Sessions Judge, Rawalpindi convicted and sentenced the appellant as referred to above. 10. The contention of the learned counsel for the appellant precisely is that whole case is fabricated and false and the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence. Learned counsel for the appellant further contended that the story of the prosecution mentioned in the statements of the witnesses, on the face of it, is highly impro bable. Learned counsel for the appellant further contended that the statements of the prosecution witnesses were not worthy of any reliance. The learned counsel for the appellant also submitted that the recovery was full of procedural defects, of no legal worth and value and result of fake proceedings. The learned counsel for the appellant also argued that the appellant had been involved in the occurrence due to enmity The learned counsel for the appellant finally submitted that the prosecution has totally failed to prove the case against the accused 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 the shadow of a 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 appellant. The learned Deputy Prosecutor General further contended that the medical evidence also corroborated the statement of Zabi Ullah (PW-1). The learned Deputy Prosecutor General further argued that the recovery from the appellant also corroborated the ocular account. The learned Deputy Prosecutor General contende d that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offender with the innocent in this case. Lastly , he prayed for the rejection of the appeal. 12. We have heard the learned counsel for the appellant, the learned Deputy Prosecutor General and with their able assistance perused the record and evidence recorded during the trial. 13. We have noted with grave concern that when Javed Iqbal (PW-4), the compl ainant of the case, reported the matter to the police, he only stated that he had received information regarding his son namely Sami ul Haq being injured and he immediately proceeded to Benazir Bhutto Hospital, Rawalpindi, to inquire about his son and there, at the hospital, got recorded his oral statement (Exh.CJ). The oral statement (Exh.CJ) of Javed Iqbal (PW-1) was recorded by Rana Muhammad Yaqoob, SI (CW-7), the Investigating Officer of the case, when the said Rana Muhammad Yaqoob, SI (PW-7) was present at the Benazir Bhutto hospital. On the basis of the said oral statement (Exh. CJ) of Javed Iqbal (PW-4) , the formal FIR (Exh.CG) was recorded by Muhammad Saeed, SI (CW-6) at the police station. The oral statement (Exh.CJ) was recorded at 8.00 p.m on 15.06.2015 and on the basis of the said oral statement (Exh.CJ), the formal FIR (Exh.CG) was recorded on the same day at 8.30 pm. A perusal of the oral statement (Exh.CJ) and the FIR (Exh.CG) reveals that Javed Iqbal (PW-4) had not mentioned the identity of-the source of the information regarding the receiving of injuries by his son namely Sami ul Haq (deceased) and the
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presence of Sami ul Haq (deceased) at the Benazir Bhutto Hospital, Rawalpindi in an injured condition. Subsequently , the name of Zabi Ullah (PW-1) was introduced as an eye witness of the occurrence with the contention that it was Zabi Ullah (PW-1) in whose presence the whole occurrence had taken place and it was Zabi Ullah (PW-1) who had reported the matter to Javed Iqbal (PW-4) at his shop. The said Zabi Ullah (PW-1) was not mentioned as a witness in the oral statem ent (Exh.CJ). The said Zabi Ullah (PW-1) is the son of Javed Iqbal (PW- 4), the complainant of the FIR and brother of the deceased. The prosecution remained unable to explain plausibly the absence of the name of Zabi Ullah (PW-1) as an eye witness of the occurrence in the oral statement (Exh.CJ). It has been mentioned in the oral statement that Javed Iqbal (PW-4) received information regarding the receiving of injuries by his son Sami ul Haq (deceased ) at the hands of appellant, however , it was not mentioned that this information was given to him by his own son namely Zabi Ullah (PW-1) . While filing the private complaint Javed Iqbal (PW -4) stated that it was his son who came to him at his shop and told him that his other son namely Sami ul Haq (deceased) had been beaten by the appellant and his co-accused. According to Javed Iqbal (PW-4) this information was given to him by Zabi Ullah (PW-1) before the recording of the oral statement (Exh.CJ). There is no reason for not having named Zabi Ullah (PW-1) as an eye witness by Javed Iqbal (PW-4) complainant of the case at the time of recording of oral statement (Exh.CJ) when Javed Iqbal (PW-4) had already met Zabi Ullah (PW-1) at his shop prior to the recording of the said statement (Exh.CJ) . Zabi Ullah (PW-1) stated during the statement before the learned trial court that he left the place of occurrence after the accused had gone from the same and directly went to the shop of Javed Iqbal (PW-4) his father and told him regarding the occurrence and Javed Iqbal (PW-4) then proceeded to the police station and the said witness went to the hospital. It has been repeatedly asserted by Zabi Ullah (PW-1) that prior to recording of the oral statement (Exh.CJ) he had told his father that he had seen the occurrence with his own eyes, however Javed Iqbal (PW-4) still failed to name Zabi Ullah (PW-1) as a witness. Even otherwise the oral stateme nt (Exh.CJ) was being lodged after proper inquiry and not spontaneously as admitted by Javed Iqbal (PW-4), hence there was no reason for him not to have mentioned the name of Zabi Ullah (PW-1) as an, eye witness of the occurrence. It is noted that this failure of Javed Iqbal (PW-4) complainant in naming Zabi Ullah (PW-1) as a witness in his oral statement (Exh.CJ) has put a gaping hole in the prosecution case. This failure in mentioning Zabi Ullah (PW-1) as an eye witness has resulted in our reaching a conclusion that had Zabi Ullah (PW-1) witnessed the occurrence and reported the same to his father Javed Iqbal (PW-4) prior to the recording of the oral statement (Exh.CJ) then there was no reason for him not to have named Zabi Ullah (PW- 1) as a witness in the same. We have reached an irresistible conclusion that the introduction of Zabi Ullah (PW-1) as an eye witness was an afterthought manipulation to create evidence and the prosecution failed to establish that Zabi Ullah (PW -1) had indeed witnessed the said occurrence in any manner . 14. We have also observed that Zabi Ullah while appearing as PW-1 during cross-examination stated that it was the co-accused of the appellant namely Jamil and Hidayat Ullah (both since acquitted) who brought the police to the place of occurrence prior to the lodging of the FIR and it was the police who brought Sami ul Haq (then injured late deceased) to the Benazir Bhutto Hospital in the company of both Jamil and Hidayat Ullah (both since acquitted), the co-accused of the appellant. Zabi Ullah (PW-1) further stated during cross-examination that at the time of arrival of police he was still present at the place of occurrence however , he pretended to be sleeping and did not report the matter to the police and when the police left the place of occurrence he went to the shop of his father namely Javed Iqbal (PW-4) and told him regarding the occurrence. Zabi Ullah (PW-1), even after the arrival of the police at the place of occurrence, by his own admission did not find it necessary to report the matter to the police and pretended to have been sleeping during the said visit. This conduct of Zabi Ullah (PW-1) is unnatural and suf ficient to discard his evidence in its entirety . 15. We have also gone through the statement of Dr. Jamal ud Din (CW-5) who stated that the injured was brought to the hospital by Jamil (since acquitted), the co-accused of the appellant. Sami ul Haq (deceased), was examined by Dr. Jamal ud Din (CW-5) in an injured condition at the hospital at 9.45 a.m on 15.06.2015. It is noteworthy to mention that oral statement of Javed Iqbal (PW-4) (Exh.CJ) was recorded at 8.00 a.m on 15.06.2015 and the formal FIR (Exh.CG) was recorded at 8.30 a.m, however , as mentioned above, Sami ul Haq (the then injured later deceased) was brought to the hospital at 9.45 a.m according to the medico-legal examination certificate (Exh.CH)
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as prepared by Dr. Jamal ud Din (CW-5).Rana Muhammad Yaqoob, SI (CW-7), the Investigating Officer of the case, admitted during cross-examination as under:- "It is correct that injured was shifted to the hospital by accused Jamil ur Rehman." This clearly establishes that had Zabi Ullah (PW-1) narrated the occurrence to Javed Iqbal (PW-4) prior to the recording of oral statement (Exh.CJ), as suggested by Zabi Ullah (PW-1) and if the co-accused of the appellant namely Jamil (since acquitted) had brought the injured to the hospital then there was no reason for him not to have been arrested by the Investigating Officer who had already recorded the oral statement (Exh.CJ) of Javed Iqbal , complainant (PW-4) at 8.00 a.m and the formal FIR (Exh.CG) had also been registered at 8.30 p.m. This also creates an irreconcilable doubt regarding the whole prosecution story . 16. We have also descried that Dr. Muhammad Jamal Din (CW-5), who examined Sami ul Haq (deceased) in an injured condition on 15.06.2015 at 9.45 a.m, had opined that the probable duration of injuries was within ten to twelve hours approximately . Zabi Ullah (PW-1) during cross-examination stated that he could not tell the time of occurrence, however , Saeed Gul alias Sahab Gull (PW-2) stated that they had remained at the place of occurrence with the accused and the deceased till 6.00 a.m on 15.06.2015 and had left thereafter meaning thereby that the occurrence took place sometime after 6.00 a.m. This timing of the occurrence as determined by the perusal of the statements of the prosecution witnesses is not consistent with what was opined by the Medical Officer namely Dr. Jamal Din (CW-5) who opined that the injured had received the injuries within 10-12 hours of his examination, meaning thereby that the injured had received the injuries at about 9.45 p.m to 11.45 p.m on 14.06.2015 . This totally shatters the prosecution case and contradicts the time of occurrence as deposed by the witnesses. The occurrence does not appear to have taken place at the point of time mentioned by the witnesses. In the aftermath of the above-discussion, we are swayed to hold that time of occurrence as deposed by the prosecution witnesses is not free from uncertainty . Furthermore, the prosecution evidence is silent as to why Sami ul Haq (deceased) was not provided with any medical treatment for as many as 10-12 hours. 17. We have already mentioned that along with the appellant his co-accused namely Jamil son of Chiri, Naimat son of Hanif Ullah and Hidayat Ullah son of Hanif Ullah (all since acquitted) were tried by the learned trial court. The learned trial court acquitted the co-accus ed of the appellant namely Jamil son of Chiri, Naimat son of Hanif Ullah and Hidayat Ullah son of Hanif Ullah. Javed Iqbal (PW-4) the complainant, filed a petition seeking grant of special leave to appeal from the order of acquittal of the said co-accused of the appellant bearing Crl. PSLA No.13 of 2018 titled as "Javed Jabal v. Jamil and 3 others " and the said application came up for hearing before this Court on 18.12.2018 and the same was dismisse d as withdrawn. In this manner the acquittal of the co-accused of the appellant namely Jamil son of Chiri, Naimat son of Hanif Ullah and Hidayat Ullah son of Hanif Ullah has attained finality . The question for determination before this Court now is that whether the evidence which has been disbelieved qua the acquitted co-accused of the appellant, can be believed against the appellant. The pi uposition of law in Criminal Administration of Justice, that a common set of witnesses can be used for recording…
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