Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: MUHAMMAD ARSHAD and anothers VS Respondent: The STATE
Court Name: Lahore High Court Judge(s): Malik Shahzad Ahmad Khan, Manzoor Ahmad Malik Title: MUHAMMAD ARSHAD and anothers vs The STATE Case No.: Murder Reference No,187 of 2008 Date of Judgment:2013-04-04 Reported As: 2014 YLR 1060 Result: Order accordingly
JUDGMENT
JUDGMENT ' MALIK SHAHZAD AHMAD KHAN, J.---Muhammad Arshad appellant along with two co-accused was tried in case F.I.R. No,457/2007 dated 28-5-2007 offences under sections 302 & 34, P.P.C., registered at Police Station Satiana, District Faisalabad. After conclusion of the trial, the learned trial Court vide its judgment dated 2-7-2008 has convicted and sentenced the appellant as under:- ' Muhammad Arshad. ' Under section 302(b), P.P.C. To death for committing the murder of Muhammad Nadeem Iqbal deceased. He was directed to pay compensation amount of Rs,1,00,000 (Rupees One Hundred Thousand only) to the legal heirs of deceased as envisaged under section 544-A of Cr.P.C. And in default, thereof, to undergo imprisonment for six months. ' Through the same judgment the learned trial Court has, however, acquitted Muhammad Afzal and Abdul Qadir accused, while giving benefit of doubt to them. 2. Feeling aggrieved, the appellant Muhammad Arshad has challenged his conviction and sentence through Criminal Appeal No, 1034 of 2008 and Muhammad Mukhtar complainant has filed Criminal Appeal No,840 of 2008 against the acquittal of Muhammad Afzal and Ghulam Qadir (Abdul Qadir) co-accused, whereas, the learned trial Court transmitted Murder Reference No, 187 of 2008, for confirmation or otherwise of the death sentence of Muhammad Arshad (appellant). We purpose to dispose of all these matters by this single judgment as these have arisen out of the same judgment dated 2-7-2008 passed by the learned Additional Sessions Judge, Faisalabad. 3. Brief facts of the case as given by the complainant Muhammad Mukhtar (P.W.4) in his written application Exh PE on the basis of which the formal F.I.R. Exh. PE/1 was chalked out are that he (complainant) was resident of Chak No,32/G.B. On 27-5-2007 at about 09:00 p.m., his
---
## Page 2
(complainant's) son namely Muhammad Nadeem Iqbal (deceased) was present in the house. Muhammad Arshad (appellant) called his (complainant's) son Muhammad Nadeem Iqbal (deceased) and said that his brother Afzal had asked him to come. Muhammad Nadeem Iqbal (deceased) went with the appellant, whereas, the complainant slept as usual. At about 02:00 a.m. (night) he (complainant) got up. And saw that the cot of his son Nadeem Iqbal was vacant and he had not yet returned. He (complainant) took along with him Niaz Ahmad (given up P.W.) and Abdul Khaliq (P.W.5) and went to the house of Muhammad Arshad (appellant) in search of Nadeem Iqbal (deceased). They (P.Ws.) heard the noise of hue and cry from the house of Muhammad Aslam. They (P.Ws.) knocked the door and entered inside where they saw that Muhammad Arshad (appellant) armed with hatchet, Ghulam Qadir (since acquitted) armed with fire-arm weapon and Muhammad Afzal (since acquitted) armed with hatchet were beating Muhammad Nadeem Iqbal (deceased). Muhammad Arshad (appellant) inflicted hatchet blow which hit near the left eye of Muhammad Nadeem Iqbal (deceased). Muhammad Afzal accused (since acquitted) inflicted hatchet blow which hit on the head of Nadeem (deceased) whereas Ghulam Qadir made a fire shot which hit on the left arm of Muhammad Nadeem Iqbal (deceased) who while crying fell on the ground. The accused persons, then inflicted further blows with hatchets. Muhammad Nadeem Iqbal succumbed to the injuries at the spot. The accused persons at gun-point did not allow the complainant party to pick up the dead body of the deceased from the place of occurrence. It was further stated that Muhammad Nadeem Iqbhal deceased had a cash amount of Rs, 10,000 and a mobile phone with him. ' The motive behind the occurrence as set forth in the F.I.R. (Exh. PE/1) was that few days prior to the occurrence, hot words were exchanged between Muhammad Nadeem Iqbal (deceased) and Muhamad Afzal accused due to the rendition of accounts. 4. The appellant was arrested, on 18-6-2007, by Nazir Hussain, S.I. (P.W.10). As per prosecution case, on 25-6-2007 Muhammad Arshad appellant led to the recovery of gun .12 bore (P-14), which was taken into possession vide recovery memo Exh.PM. On the same day Muhammad Arshad (appellant) also led to the recovery of blood-stained 'kassi' (P15) and bat (P-16) which were taken into possession vide recovery memo Exh. PN. After completion of investigation, the challan was prepared and submitted before the learned trial Court. The learned trial Court, after observing legal formalities, as provided under the Code of Criminal Procedure, 1898 framed charge against the appellant and his co-accused on 3-12-2007, to which they pleaded not guilty and claimed trial. 5. In order to prove its case, the prosecution produced eleven witnesses, during the trial. Muhammad. Mukhtar, complainant (P.W.4) and Abdul Khaliq (P.W.5) are the witnesses of ocular account. ' The medical evidence was furnished by Dr. Farooq Ahmad Kisana (P.W.1). Nazir Hussain, S.I. (P.W.10) is the Investigating Officer of this Case. ' Muhammad Younas 1172/C, (P.W.2), Muhammad Aslam (P.W.3), Aurangzeb, Draftsman (P.W.6), Meraj Din, A.S.-I. (P.W.7), Muhammad Yousaf 4052 MHC, (P.W.8), Atta Muhammad, S.I. (P.W.9) and Behwal Sher 2929 (P.W.11) are the formal witnesses. The prosecution also produced documentary evidence in the shape of post mortem report of Muhammad Nadeem Iqbal (deceased) Exh. PA, its pictorial diagrams Exh.PA/1 and Exh.PA/2, injury statement Exh. PB, inquest report Exh. PC, last worn clothes of Muhammad Nadeem Iqbal (deceased) Exh. PD, written complaint by Muhammad Mukhtar complainant Exh. PE, police proceedings on written complaint Exh. PE/2, F.I.R. Exh. PE/1, memo of possession of blood-stained cotton Exh. PF, memo of possession of empty cartridges Exh. PG, memo of possession of bed sheets, pillows, mattress piece, rings, cotton roll of spinning etc. Exh. PH, scaled site plan of the place of occurrence in duplicate Exh. PJ and Exh. PJ/1, site plan of the place of occurrence without scale Exh. PK, memo of possession of pistol 30 bore along with 4 cartridges Exh. PL, memo of possession of gun 12 bore Exh. PM, site plan without scale of the place of
---
## Page 3
recovery of gun Exh. PM/1, memo of possession of blood-stained 'kassi' & bat Exh. PN, report of Chemical Examiner, Punjab, Lahore qua piece of foam etc., Exh. PQ, report of Serologist qua piece of foam, two shawls and two pillows Exh. PQ/1, report of Chemical Examiner, Punjab, Lahore qua 'kassi` and bat Exh. PR, report of Serologist qua cotton Exh. PR/1, report of Chemical Examiner qua 'kassi' and bat Exh. PS, report of Serologist qua 'kassi' and bat Exh.PS/1 and report of Forensic Science Laboratory, Punjab, Lahore qua crime empties Exh. PT and closed its evidence. 6. The statement of the appellant under section 342 Cr.P.C. Was recorded by the learned trial Court. He refuted the allegations levelled against him and professed his innocence. He took the plea of self-defence by stating that on the night of occurrence, the deceased entered into his house by scaling over the wall whereupon, he (appellant) raised lalkara. Muhammad Nadeem Iqbal (deceased) then made a fire shot with his pistol at him (appellant) which was missed, whereupon he (appellant), while exercising his right of self defence fired with his gun at the. Deceased. The appellant further stated that Muhammad Nadeem Iqbal (deceased) came to his house in order to commit zina with his niece Shamila as he (deceased) had developed illicit relations with her. He further stated that he also inflicted injuries with both side of 'kassi' on the person of the deceased as he lost his control on seeing the rings ear tops and hair catcher etc. On the bed of his niece Shamila. ' Neither the appellant opted to make statement under section 340 (2) of Cr.P.C, nor he produced any witness in his defence. 7. The learned trial Court vide judgment dated 2-7-2008, found Muhammad Arshad appellant guilty, convicted and sentenced him as mentioned and detailed above. 8. Learned counsel for the appellant in support of this appeal, contends that the appellant has been implicated in the instant case by the complainant after concocting a false story; that true facts have not been mentioned in the F.I.R. By complainant; that in the F.I.R. The complainant has stated that few days earlier there was altercation between the deceased and Muhammad Afzal accused due to rendition of accounts but while appearing before the learned trial Court he did not say anything about the motive; that as a matter of fact, there was no dispute of accounts between the deceased and the accused party; that the story narrated by the complainant is highly improbable and it does not appeal to common sense that at 02:00 a.m. The complainant called his brother and nephew who lived at a distance of 4 acres from his house to see the occurrence; that the incident took place in, the house of the appellant and the version of the appellant is more probable and gets support from the prosecution evidence; that pistol, rings tops, etc. Were recovered from the spot and same have also been shown in the site plan which supports the defence plea of the appellant; that alleged recovery of gun from the appellant is immaterial as there is no allegation of making fire shot against the appellant and that evidence cannot be used against the appellant. So far as the, recovery of 'kassi and bat is concerned, learned counsel for the appellant contends that in the F.I.R. It was the allegation that the appellant was armed with, hatchet, therefore, there is no corroboration of the prosecution case from the above mentioned alleged recoveries and in the circumstances the appellant is entitled to acquittal; that the prosecution has miserably failed to prove its case against the appellant beyond the shadow of doubt, thus, this appeal be accepted and the appellant may be acquitted from the charge. 9. Learned Deputy Prosecutor-General, for the State, assisted by learned counsel for the complainant opposes this appeal on the grounds that there is absolutely no enmity of the complainant and other witness of the ocular account with the appellant to falsely depose against him; that no enmity was suggested against the complainant and other witnesses who are residents of the same vicinity where the occurrence took place and they are natural witnesses of the incident; that though the police station was at a distance of 4-miles from the place of occurrence but the matter was reported to the police within three hours which clearly established
---
## Page 4
the presence of the complainant and other witnesses at the relevant time at the spot; that the ocular account furnished by the prosecution witnesses is fully supported by the medical evidence available on the record; that prosecution case is further supported by the recovery of gun, bat and 'kassi' from the possession of appellant and positive report of Forensic Science Laboratory; that the reports of Chemical Examiner and that of Serologist qua bat and 'kassi' are also positive; that the appellant neither produced any witness in his defence before the learned trial Court to prove his plea taken in his statement made under section 342, Cr.P.C. Nor he made statement under section 340(2), Cr.P.C. And he has not been able to prove his plea; that there is no mitigating circumstance in this case; that the sentence of death was rightly awarded to the appellant and the same may be maintained, appeal may be dismissed and Murder Reference be answered in the affirmative. ' So far as acquittal of Muhammad Afzal and Ghulam Qadir (Abdul Qadir) co-accused is concerned, learned counsel for the complainant contends that both the respondents are named in the F.I.R. And specific allegation was levelled against them; that their role in the occurrence has been established through the trustworthy statements of the prosecution witnesses; that opinion of the police about their innocence is immaterial, therefore, they are liable to be convicted and sentenced under section 302(b), P.P.C. 10. We have heard the arguments of learned counsel for the parties and have also gone through the evidence available on the record with their able assistance. 11. It would not be out of place to mention here that it is a case of two versions, i,e, one put forth by the prosecution in the form of ocular account furnished by Muhammad Mukhtar, complainant (P.W.4) and Abdul Khaliq (P.W.5), whereas, the other has been brought on the record through the statement of Muhammad Arshad (appellant), recorded under section 342 of Cr.P.C. And suggestions put to the eye-witnesses during their cross-examination. 12. It is settled now by the Hon'ble Supreme Court of Pakistan in number of judgments that it is the prosecution which is required to prove its case against the accused persons beyond any shadow of doubt and the defence version is to be taken into consideration after evaluating the prosecution evidence to find out whether the same inspires confidence or not?. In this regard, we have been fortified by an illustrious pronouncement of the Hon'ble Supreme Court of Pakistan in the case reported as Ashiq Hussain v. The State (PLD 1994 SC 879), wherein, at page 883, the learned Apex Court of the country has been pleased to observe as under:- "The proper and legal way of dealing with a criminal case is that the Court should first discuss the prosecution ease/evidence in order to come to an independent finding with regard to the reliability of the prosecution witnesses, particularly the eye-witnesses and the probability of the story told by them, and then examine the statement of the accused under section 342, Cr.P.C., statement under section 340(2), Cr.P.C. And the defence evidence. If the Court disbelieves/rejects/excludes from consideration the prosecution evidence, then the Court must accept the statement of the accused as a whole without scrutiny. If the statement under section 342, Cr. P. C. Is exculpatory, then he must be acquitted. If the statement under section 342, Cr.P.C. Believed as a whole, constitutes some offence punishable under the Code/law, then the accused should be convicted for that offence only. In case of counter-versions, if the Court believes prosecution evidence and is not prepared to exclude the same from consideration, it will not straightaway convict the accused but will review the entire evidence including the circumstances appearing the case at close before reaching at a conclusion regarding the truth or falsity of the defence plea/version. All the factors favouring belief in the accusation must be placed in juxtaposition to the corresponding factors favouring the plea in defence and the total effect should be estimated in relation to the question, viz is the plea/version raised by the accused satisfactorily established by the evidence and circumstances appearing in the case? If the answer be in the affirmative, then the Court must accept the plea of the accused and act accordingly. If
---
## Page 5
the answer to the question be in the negative, then the Court will not reject the defence plea as being false but will go a step further to find out whether or not there is yet a reasonable possibility of defence plea/version being true. If the Court finds that although the accused has failed to establish his plea/version to the satisfaction of the Court but his plea might reasonably be true, even then the Court must accept his plea and acquit or convict him accordingly." ' Similar view was taken by the Hon'ble Supreme Court of Pakistan in the case of 'Amin Ali and another v. The State' (2011 SCM R 323), therefore, following the principles settled by the Hon'ble Supreme Court of Pakistan in such like situation, we will, first, examine the case of the prosecution. 13. The ocular account of the prosecution was furnished by Muhammad Mukhtar complainant (P.W.4) and Abdul Khaliq (P.W.5). The examination in chief of Muhammad Mukhtar complainant (P.W.4) is reproduced hereunder:-- On 27-5-2007, at 9:00 p.m. I was present in my house along with my wife Khurshid Bibi, three daughters, and Nadeem deceased my son. Arshad accused summoned my deceased son that Afzal accused is summoning him. When my deceased son left my house a cell phone and cash money Rs,10,000 were with him. I slept and I woke up at 2:00 a.m. On the same night, and I saw that my deceased son was not present on his cot. I worried about non-presence of my deceased son and I approached Niaz my brother and my Bhanja Abdul Khaliq, thereafter, we all went towards the house of the accused Afzal and Arshad accused, we heard hue and cry from the inner side of the house and then we pushed the gate of the house of the accused person. We saw that Arshad and Afzal were causing hatchet blows to my deceased son. Thereafter, Qadir accused present in .The court made firing which hit-at the left arm of my deceased son. My deceased son fell down and Arshad and Afzal accused again caused hatchet blows at my deceased son. We tried to apprehend the accused present in the court, but the accused fled away from the place of occurrence. In our view, my son succumbed to the injuries at the spot. I left Niaz and Khaliq with the dead body and I myself proceeded to lodge the report. On the way, 1 met police official at 32- Adda and 1 produced written application Exh. PE and the same was read over to me and police official asked me about the affixation of my thumb-impression over the said application and I verified the same situation. Thereafter, I came to the place of occurrence. The police party came at the place of occurrence after my arrival at the spot. ' The evidence of other eye-witness namely Abdul Khaliq (P.W.5) is also on the same lines. The place of occurrence is not disputed in this case by the parties, which took place inside the house of the appellant. The occurrence took place at 02:00 a.m. (at night). We have noted that a motive was alleged in the written application Exh. PE moved by the complainant for registration of case which was to the effect that few days earlier to the occurrence, hot words were exchanged between Muhammad Afzal co-accused and Muhammad Nadeem Iqbal (deceased) due to rendition of accounts. According to the prosecution case on 27-5-2007 at. 09:00 p.m. Muhammad Arshad (appellant) went to the house of the complainant and asked Muhammad Nadeem Iqbal (deceased) that Muhammad Afzal co-accused was calling him, whereupon Muhammad Nadeem Iqbal (deceased) accompanied him (the appellant). The above mentioned story of the prosecution as set forth in the F.I.R. Exh. PE/1 does not appeal to common sense that when an altercation took place between the deceased and Muhammad Afzal co-accused, few days prior to the occurrence then why Muhammad Nadeem Iqbal (deceased) accompanied Muhammad Arshad (appellant) at night time (09:00 p.m.) on the summoning of Muhammad Afzal co-accused. It does not appeal to the mind of a prudent person that a father would allow his son to go to the house of a person at night time when an altercation of his son took place with him few days prior to the occurrence. As story of the prosecution mentioned in the F.I.R. Was highly improbable, therefore, the above mentioned eye-witnesses did not disclose any motive while making their statements before the learned trial. Court. It is also not convincing that the deceased left his house at 9:00 p.m.
---
## Page 6
With the appellant and in spite of the above mentioned strained relationship between the deceased and the accused party, the complainant did not inquire about his son till 02:00 a.m. (night) and thereafter he proceeded to the house of the accused party. ' The, occurrence admittedly took place inside the house of the appellant. It is evident from the perusal of the site plan Exh. PJ that the dead body of Muhammad Nadeem Iqbal (deceased) was lying inside the room of the house of the appellant. The Investigating Officer also took into possession from the spot, the blood-stained chadar (bed sheets) (P-10), pillow (P-9) and piece of mattress (P-8) vide memo Exh. PH. The prosecution eye-witnesses could not explain as to how Muhammad Nadeem Iqbal (deceased) entered inside the room of the house of the appellant at the odd hours of night. It was case of the prosecution in the F.I.R. Exh, PELT that the accused party at gun-point did not allow the complainant to lift the dead body of Muhammad Nadeem Iqbal (deceased) but Muhammad Mukhtar complainant (P.W.4) while appearing in the witness box before the learned trial Court has stated that they (P.Ws.) tried to apprehend the accused persons at the time Of occurrence but they (accused persons) fled away from the spot. It was so mentioned in the F.I.R. That when the complainant and P.Ws. Reached near the house of the appellant, they heard the noise of shrieks from the house of the appellant, whereupon they knocked the door of the house and thereafter they entered inside the said house and witnessed the occurrence. It is not natural that the complainant who was in .Search of his son, after hearing the shrieks coming out of the house of the appellant would first knock the door of his house and then he would enter inside it. As the above mentioned story of knocking the door of the appellant was highly unnatural, therefore, the complainant Muhammad Mukhtar (P.W.4) while making his statement before the learned trial Court did not mention that on hearing the shrieks from the house of the appellant he knocked the door of his (appellant's) house, rather he stated that on hearing the hue and cry they, P.Ws. Pushed the house of the accused persons. The complainant was confronted with his previous statement Exh. PE and the improvements made by him in this regard and the fact of knocking the door of the appellant was brought on the record. The relevant part of his statement in the cross-examination reads as under:- ' 'I have stated before the police that we pushed the gate of the house (confronted with Exh. PE where not so recorded.) I have stated before the police that we knocked the door and then entered into the house,' ' It is also not understandable that when the accused persons took Muhammad Nadeem Iqbal (deceased) to their house on 27-5-2007 at 09:00 p.m. (night) then whey they kept on waiting till 2:00 a. m. (night) to commit the murder of the deceased. The Investigating Officer Nazir Hussain, S.I. (P.W.-10) has also stated in his examination-in-chief that at the time of spot inspection he took into possession, pistol .30 bore (P-12) along with four live bullets (P-13/1-4) vide recovery memo Exh. PL attested by the P.Ws. The said bullets and live bullets were taken into possession from the place of occurrence but the prosecution has not given any explanation regarding the presence of above mentioned weapon and ammunition near the dead body of Muhammad Nadeem Iqbal (deceased). The recovery memo Exh. PL of the above mentioned pistol (P-12) and four live bullets (P-13/1-4) was attested by Abdul Khaliq (P.W.5) but the said witness did not utter a single word about the recovery of pistol (P-12) and four live bullets (P-13/1-4) and recovery memo Exh.PL in his examination-in-chief. The said memo was put to the above mentioned witness but he disowned his attestation on the said memo. However, as mentioned earlier the prosecution other witness Nazir Hussain, S.I. (P.W.10) has stated in his examinationin-chief that pistol (P-12) along with four live bullets (P-13/1-4) were recovered from the place of occurrence vide memo Exh. PL attested by P.Ws. The said witness was not declared hostile by the prosecution. 14. In the F.I.R. Exh.PE/1, it was case of the prosecution that the appellant inflicted a hatchet blow near the right eye of Muhammad Nadeem Iqbal (deceased) but no hatchet was recovered from
---
## Page 7
the appellant or from the possession of any co-accused during the investigation. Although, there is an incised wound on the left fore head of Muhammad Nadeem Iqbal (deceased) but it was not alleged in the F.I.R. Exh. PE/1 that the hatchet blow of the appellant landed on the forehead of the deceased rather it was stated that the hatchet blow inflicted by the appellant landed near the left eye of the deceased. The injury below the left eye of the deceased i,e, Injury No, 5 as per medical evidence furnished by Doctor Farooq Ahmad Kisana (P.W.I) was a lacerated wound which was caused by a blunt weapon and as such there was conflict between the medical evidence and the prosecution case as set forth in the F.I.R. As the eye-witnesses of the prosecution witnesses namely Muhammad Mukhtar (P.W.4) and Abdul Khaliq (P.W.5) were aware of the above mentioned conflict between the prosecution story narrated in the F.I.R. And the medical evidence,…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.