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Official Citation: 2024 PCRLJ 1623
Court / Jurisdiction: Lahore High Court
Year of Decision: 2024
Decision Date: 2024-02-22
Parties: Sana Ullah and others vs The State etc.
Ruling Summary: This decision was rendered by the Lahore High Court on 2024-02-22, officially reported as 2024 PCRLJ 1623. In this matter between Sana Ullah and others and The State etc., the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2024 PCRLJ 1623
Court Name: Lahore High Court Judge(s): Aalia Neelum Title: Sana Ullah and others vs The State etc. Case No.: Crl. Appeal No.78000-J of 2019, Crl. Revision No.69601 of 2019 Date of Judgment:2024-02-22 Reported As: 2024 LHC 631, PLJ 2024 Cr.C. 592, 2024 PCRLJ 1623 Result: Appeal Dismissed
JUDGMENT
JUDGMENT Aalia Neelum, J: - Sana Ullah, son of Ghulam Shabbir, Caste Gawance, resident of Chak No.444/JB Gawance, Tehsil & District Jhang, the appellant was involved in case F.I.R. No.571 of 2016, registered on 17.10.2016, under Sections 302, 449, 34 PPC, at Police Station, Saddar Gojra, District Toba Tek Singh and was tried by the learned Additional Sessions Judge, Gojra. The trial court seized with the matter in terms of the judgment dated 18.09.2019, convicted the appellant-Sana Ullah, under Section 302 (b) PPC, and sentenced him to imprisonment for life as Tazeer with the direction to pay Rs.2,00,000/- as compensation to the legal heirs of the deceased and in case of default in payment thereof, the appellant would further undergo simple imprisonment for six months. The appellant was also convicted under section 449 PPC and sentenced to undergo rigorous imprisonment for 07 years and also to pay Rs.25,000/- as a fine, and in case of default in payment thereof, the appellant would further undergo simple imprisonment for one month. Both the sentences awarded to the appellant would run concurrently. The benefit of section 382-B Cr.P.C. was also extended in favour of the appellant. 2. Feeling aggrieved by the judgment of the trial court, Sana Ullah, the appellant, has assailed his conviction through the instant criminal appeal, i.e., Crl. Appeal No.78000 of 2019. The complainant, dissatisfied with the impugned judgment dated 18.09.2019, preferred a Criminal Revision No.69601 of 2019 for awarding a death sentence to respondent No.1/appellant. As both matters arise from the same judgment, they are being disposed of through a single judgment. 3. The prosecution story as alleged in the F.I.R (Ex.PA/1) lodged on the written application (Ex. PA) of Muhammad Arshad (PW-1)-the complainant is that he was a resident of Chak No.425/GB Tehsil Gojra. On 17.10.2016 at about 10:00 a.m., he (PW-1)-the complainant, along with Amjad Ali, brother of
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the complainant, and cousin Asadullah Khan (PW-7), was present in the house of his sister-in-law Nusrat Bibi (PW-2) and his paternal niece Aqsa Bibi (18/19 years) was also present there. They were in the house when they heard the sound of motorcycle 125-CC stopping outside the house. The door of the house was open when two unknown persons armed with pistols had the following features: (1.) Medium build, fair complexion, young age, round face, strong body, and (2.) "Labutara Chahra," young in age and strong in body, entered the house. The accused No.1, having medium height, fired with a pistol 30 bore, which hit below the left ear of Aqsa Bibi and went through and through. Then he made a second fire, which hit the left shoulder and went through and through. The second unknown accused was armed with a pistol 30 bore who said that if anyone came near, he would kill them. They escaped by sitting on a motorcycle while making threats. The complainant and witnesses could identify the unknown suspects when the accused would come forward. After escaping the accused, the witnesses took care of their niece and took her to the Civil Hospital, Gojra. After that, the WMO referred Aqsa Bibi to Allied Hospital Faisalabad due to her unsatisfactory condition. Aqsa Bibi succumbed to the injuries. Unknown accused, for unknown reasons, killed Aqsa Bibi. 4. Upon receiving the information of the occurrence, Asad Abbas S.I/H.I.U (PW-11) reached Eye- Cum-General Hospital, Gojra, where the complainant (PW-1) presented a written application/complaint (Ex. PA) before him (PW-11), who after completion of police karawai sent the same to the Police Station through Sajjad Ahmad 242/C (not cited as a witness), after that formal F.I.R. (Exh.PA/1) was chalked out by Muhammad Afzal, 790/MHC (PW-5). 5. After the registration of the case, the investigation of this case was entrusted to Asad Abbas, S.I. (PW-11)-the investigating officer, who being investigating officer, inspected the dead body of deceased through Uzma Naseem 1085/LC and prepared injury statement (Ex.PJ) and inquest report (Ex.PK) and deputed Uzma Naseem 1085/LC (PW-6) for autopsy of the deceased. After that, he (PW-11)-the investigating officer proceeded towards place of occurrence, inspected the place of occurrence and took into possession blood stained earth from the place of occurrence through recovery memo (Ex.PB) and also recovered two crime empties and secured the same into possession through recovery memo (Ex.PC). He (PW-11)-the investigating officer also prepared a rough site plan of the place of occurrence (Ex.PN) on the pointation of PWs. After that, the investigating officer (PW-11) searched for the accused but in vain and then, he (PW-11) proceeded towards Civil Hospital, Gojra, where Uzma Naseem 1085/LC (PW-6) produced blood stained last worn clothes of the deceased i.e. Qameez P-6, Shalwar P-7, Dopatta P-8, Brazier P-9 before the investigating officer (PW-11), who took the same into possession through recovery memo (Ex.PH). Uzma Naseem 1085/L.C (PW-6) also produced carbon copy of postmortem, X-ray report and other documents before the investigating officer. On 18.10.2016, the Investigating Officer (PW-11) summoned Shahzad Ashraf draftsman (PW4), who prepared the scaled site plan of the place of occurrence (Ex.PG & Ex.PG/1) in the scale of one inch equal to 16-feet. On 14.11.2012, the investigating officer (PW-11) was present at Dhama Bangal, where he (PW11) received spy information about the culprits, whereupon he (PW-11) apprehended Sana Ullah (the appellant) and Azhar Waqas (co- accused since P.O) under section 54 of Cr.P.C. and produced them before the Area Magistrate with covered faces for sending them to judicial lockup for the purpose of identification parade by submitting application (Ex.PO), which was allowed. On 15.11.2016, the investigating officer (PW-11) submitted an application (Ex.PP) to the Area Magistrate, Toba Tek Singh for conducting and fixing the date for identification parade and the learned Area Magistrate fixed 18.11.2016 for identification parade. On 18.11.2016, he (PW-11)-the investigating officer reached District Jail Toba Tek Singh and handed over file to Naib Court. After completing the proceedings of identification parade, Naib Court handed over to him (PW-11) file of this case alongwith five pages of proceedings of identification parade, which he annexed with file. At the same time, PWs-Asad Ullah Khan, Mst.
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Nusrat Bibi, Amjad Ali joined investigation and got recorded their statements under section 161 of Cr.P.C. On 23.11.2016, the investigating officer (PW-11) produced application (Ex.PQ) for summoning of accused from District Jail Toba Tek Singh for investigation, which was allowed by Area Magistrate. On 24.11.2016, the investigating officer, got custody of Sana Ullah (the appellant) and Azhar Waqas (co-accused since P.O) from jail and arrested them in this case. During investigation on 27.11.2016 accused Sana Ullah (the appellant) made disclosure and got recovered weapon of offence i.e. pistol (P-1) alongwith 5 alive bullets (P-2/1-5), which was secured into possession by the investigating officer (PW-11) through recovery memo (Ex.PD). The accused Sana Ullah (the appellant) also got recovered motorcycle 125 (P-3), which was secured into possession by the investigating officer (PW-11) through recovery memo (Ex.PE). ON 28.11.2016, the accused Sana Ullah (the appellant) was sent to judicial lockup. 6. After investigation, Asad Abbas, S.I. (PW-11), prepared a challan and sent the same to the court of competent jurisdiction while placing the names of all accused persons in Column No.3 of the challan. On 09.09.2017, the trial court formally charge-sheeted the appellant, to which he pleaded not guilty and claimed trial. In support of its version, the prosecution produced as many as twelve (12) witnesses. 7. The ocular account in this case consists of the statements of Muhammad Arshad (PW-1)-the complainant, Nusrat Bibi (PW-2), and Asad Ullah Khan (PW-7). Dr. Sobia Muneer W.M.O (PW-9) deposed that on 17.10.2016, she conducted postmortem examination on the body of the deceased, Aqsa Munawar, and found the following injuries on her person: - INJURIES. 1-A A firearm wound of injury measuring 1 x 1.3 cm into DNP on left cheek just infront of left ear on T.M. joint left directed inwards and downwards with margins inverted, clotted blood was present. 1-B A firearm wound of exit measuring 1.2 x 1.5 cm on right side of chin, 1 cm inner to the mandibular margins with margins everted, clotted blood was present. On dissection, shattered pieces on bone were present at the entry wound a foreign mattalic projectile injured muscles of mastication, maxilla, left side of upper jaw and floor of the mouth. 2-A A firearm wound of entry 1 x 1 cm on left supraclavicular fossa just in front of mid of trapezius muscle prominence with margins inverted. 2-B A firearm wound of exit measuring 1 x 1.2 cm on back of right chest, 18 cm below tip of shoulder and 15 cm away from midline with margins everted. After conducting the postmortem examination, the doctor rendered the following opinion: - OPINION "All injuries were ante-mortem in nature caused by firearms and cause of death in this case was hemorrhage and shock due to injuries No.1-A, 1- B, 2-A & 2-B. The probable time that elapsed between injuries and death was 1 to 2 hours, and the time that elapsed between death and postmortem was 06 to 10 hours." Ex.PI is the correct carbon copy of the postmortem report, whereas Ex.PI/1 and Ex.PI/2 are pictorial diagrams of injuries. The statements of the remaining prosecution witnesses are formal. 8. The learned Deputy District Public Prosecutor gave up PWs, Amjad Ali and Nauman Shafqat being unnecessary and closed the prosecution evidence on 29.04.2019 after tendering the report of Punjab Forensic Science Agency, Lahore (Ex.PT and Ex.PU). 9. After the closure of prosecution evidence, the appellant was examined under Section 342 of Cr.P.C., wherein he refused to appear as his own witnesses in terms of Section 340 (2) Cr.P.C., in proof of the allegations leveled against him, however, tendered Ex.DA, Ex.DB, Ex.DC and Mark-A in his
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defence evidence. In response to a particular question that why this case was against him and why the PWs had deposed against him, the appellant made the following depositions: - "All the PWs are related inter se and they have deposed against me due to suspicion. In fact, the deceased was a woman of easy virtue and she was got murdered under unknown circumstances. Babar brother of deceased used to forbid her from illegal designs/immoral activities. Due to the aforesaid reasons Babar brother of the deceased left the country. I was best friend of Babar brother of deceased. Complainant party had suspicion that Babar brother of the deceased got the deceased killed through me and my co-accused. I am innocent. I had no reason at all to commit the occurrence. I am resident of district Jhang. My father Ghulam Shabbir was murdered prior to the present occurrence by Manzoor Hussain S.I. Manzoor Hussain S.I. had good relations with Fakhar Moharar of P.S. City, Gojra. The complainant party firstly tried their level best to trace out the actual culprit when remained failed, they involved me in the present occurrence due to my friendship with Babar aforesaid and on the instructions of Manzoor Hussain S.I. I was student during the days of occurrence and had taken examination of F.A was awaiting for my result. I could not even imagine to commit such occurrence." 10. After recording evidence and evaluating the evidence available on record in the light of the arguments advanced by both sides, the trial court found the prosecution version proved beyond any shadow of reasonable doubt, which resulted in the appellant's conviction in the afore-stated terms. 11. I have heard the arguments advanced by the learned counsel for the parties and Deputy Prosecutor General and have minutely perused the record on the file. 12. In the instant case, the incident took place on 17.10.2016 at 10:00 a.m., and the same was reported at 02:20 p.m. by Muhammad Arshad (PW-1)-the complainant, paternal uncle of Aqsa Bibi-the deceased through the written application (Ex. PA) to Asad Abbas S.I/H.I.U. (PW-11) at Govt. Eye- Cum-General Hospital, Gojra. Asad Abbas S.I/H.I.U. (PW-11), sent the same through Sajjad Ahmad 242/C (not cited as a witness) to the police station Saddar Gojra, District Toba Tek Singh, for formal registration of FIR, based on which first information report (Ex.PA/1) was recorded at 02:30 p.m. Whereas, the inter-se distance between the place of occurrence and the police station is 11-miles. As per the complaint (Ex. PA), contents of FIR (Ex.PA/1) and depositions of Muhammad Arshad (PW- 1)-the complainant, Nusrat Bibi (PW-2)-eye witness, mother of the deceased, and Asad Ullah Khan (PW-7)-the eye witness, it reveals that two unknown accused persons armed with pistols had the following features: (1.) Medium build, fair complexion, young age, round face, strong body, and (2.) "Labutara Chahra", young in age and strong in body, entered the house. The unknown accused No.1, having medium height, fired with his pistol 30-bore, which hit below the left ear of Aqsa Bibi and went through and through . Then, he (unknown accused No.1) made a second fire with his pistol, which hit the left shoulder of Aqsa Bibi and went through and through . The second unknown accused was also armed with a 30-bore pistol and raised a lalkara that, if anyone came near, he would be killed. After escaping the unknown accused persons, the witnesses took care of their niece, Aqsa Bibi, and took her to the civil hospital, Gojra. Afterward, due to unsatisfactory conditions, W.M.O. referred Aqsa Bibi to Allied Hospital, Faisalabad. Aqsa Bibi succumbed to the injuries in Allied Hospital, Faisalabad. The prosecution failed to produce evidence oral as well as documentary revealing the exact time of death of Aqsa Bibi, the deceased. Dr. Bushra Ashraf (PW-10) stated during her examination in chief that: - "Stated that on 17.10.2016, I was posted as WMO at Govt. Eye Cum General Hospital, Gojra and on the same day, I attended Aqsa (deceased in injured condition) d/o Munawar aged about 19 years, r/o Chak No.425/JB. She was produced for medical examination with the history of firearm injury. I attended her and observed her condition. ---- I called doctor Ajmal Consultant Surgeon. He came and examined the patient and advised to refer the patient to Allied Hospital,
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Faisalabad. The ambulance was arranged and referred the patient to Allied Hospital, Faisalabad. OPD Slip No.1335 dated 17.10.2016 Exh.PM is in my handwriting and bears my signatures." Dr. Bushra Ashraf (PW-10), who attended Aqsa Bibi (then injured), provided her medical treatment, arranged an ambulance, and referred her to Allied Hospital, Faisalabad, did not state a single word that who brought Aqsa Bibi, in injured condition, for medical treatment in EyeCum-General Hospital, Gojra. She (PW-10) deposed in her examination-in-chief that OPD Slip No.1335 dated 17.10.2016 (Exh. PM) is in her handwriting and bears her signature. On perusal of OPD Slip No.1335 dated 17.10.2016 (Exh. PM), it reveals that only contact No.0336-3453455 is mentioned therein, and neither the name of the person who brought her in injured condition nor the time of providing treatment has been mentioned therein. The other document placed on the record by the prosecution is the death certificate dated 17.10.2016 of Aqsa Bibi (Ex. PL) issued by Allied Hospital, Faisalabad, revealing that "Received Expired" and in the column for the name of the patient, is mentioned "Aqsa, as told by Fakhar" and mobile number on the death certificate (Ex. PL), is mentioned as "03363453465". This document is also silent about the time when Aqsa Bibi was brought expired in the Allied Hospital, Faisalabad, and a death certificate (Ex. PL) was issued. Muhammad Arshad (PW-1)-the complainant deposed during his examination in chief that: - "We attended Aqsa Bibi and shifted her to Civil Hospital Gojra where she was medically examined and referred to Allied Hospital, Faisalabad due to her critical condition where she succumbed to the injuries. We brought back dead body of Aqsa Bibi to Civil Hospital Gojra." Nusrat Bibi (PW-2) deposed in similar lines during her examination-in-chief. Whereas, Asad Ullah Khan (PW-7) deposed during his examination in chief that: - "We attended Aqsa Bibi deceased and shifted her to Civil Hospital Gojra on a car. She was referred to the Allied Hospital Faisalabad where she succumbed to the injuries." Contrary to the contents of complaint (Ex. PA), FIR (Ex. PA/1), and depositions of prosecution witnesses i.e. Muhammad Arshad (PW-1)-the complainant, Nusrat Bibi (PW-2) and Asad Ullah Khan (PW-7), Dr. Sobia Muneer W.M.O (PW-9) deposed in her court statement that, "According to police papers time of death is 10:00 a.m on 17.10.2016." Asad Abbas S.I (PW-11)-the investigating officer, also deposed in his court statement that: - "Stated that on 17.10.2016, I was posted as Incharge at HIU Circle, Gojra. On the same day, I along with other police officials reached at Eye-cum-General Hospital, Gojra after receiving information about occurrence where complainant Muhammad Arshad appeared before me and produced an application Exh.PA. I incorporated my proceedings upon it and sent the same to P.S. Saddar, Gojra through Sajjad Ahmad 242/C for registration of FIR. I got inspected dead body of deceased through Uzma Naseem 1085/LC and prepared injury statement Exh.PJ and inquest report Exh.PK." Asad Abbas S.I. (PW-11)-the investigating officer, admitted in his examination-in-chief that he prepared an inquest report (Ex. PK) on 17.10.2016 after receiving a complaint (Ex. PA) from Muhammad Arshad (PW-1)-the complainant. On perusal of the inquest report (Ex. PK), it reveals that in column No.3, the time and date of receiving information was mentioned as "17.10.2016 at 10:00 a.m.". It is the prosecution's version that the FIR was lodged at 2.30 p.m. If it was so, it was required to be explained by the investigating officer, by plausible evidence on record, as to how the inquest was undertaken at 10:00 a.m., a point in time when the FIR was not in existence. The first circumstance that raises doubt about the time of occurrence and death as claimed by the prosecution is that in the inquest report, in column No. 3 time and date of receiving information about death was mentioned as 10:00 a.m. by Asad Abbas S.I. (PW-11)-the investigating officer, whereas, as per prosecution version Aqsa Munawar received injuries at 10:00 a.m. whereas incident was reported after the death of Aqsa Munawar at 02:20 p.m. on 17.10.2016 in Allied Hospital,
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Faisalabad. Muhammad Arshad (PW-1)-the complainant deposed during cross-examination that: - "The application for registration of case was addressed to the SHO. The application Exh.P-A was got prepared by me prior to arrival of the police. I had produced the aforesaid application to the SHO at Civil Hospital Gojra. The SHO had marked the aforesaid application to another police officer." It creates doubt about the time of the incident and the time of death of Aqsa Munawar, the deceased. A man may tell a lie, but the document cannot. The inquest report (Ex. PK) reveals that Asad Abbas S.I. (PW-11)-the investigating officer, received information about the death of Aqsa Munawar-the deceased, on 17.10.2016 at 10:00 a.m., which threw a cloud of doubt on the deposition of prosecution witnesses i.e. Muhammad Arshad (PW-1)-the complainant, Nusrat Bibi (PW-2) and Asad Ullah Khan (PW-7). 13. There is another significant circumstance which goes to prove that the prosecution witnesses did not witness the occurrence. Dr. Sobia Muneer W.M.O (PW-9), who conducted a postmortem examination of Aqsa Munawar, the deceased, opined that the duration between the injuries and death was 1 to 2 hours and between death and postmortem was 6 to 10 hours. She (PW-9) further stated in her court statement that the dead body was received in the dead house at 03:00 p.m. on 17.10.2016 and complete documents were produced before her at 07:00 p.m. and she conducted the autopsy at 07:30 p.m. on 17.10.2016, which also reveals from the postmortem report (Ex. PI). There is no plausible explanation as to why the postmortem of the dead body was delayed for five (05) hours from the time of registration of the case and four (04) hours thirty (30) minutes from the time of receiving the dead body in the mortuary for post mortem examination at 03:00 p.m. on 17.10.2016. No doubt, delay in postmortem alone is not fatal to the prosecution case, but when this court considered it with the other evidence available on the record along with post mortem report (Ex. PI), they do influence the mind of the Court and leave the impression that there had been some wrangling about the time of registration of criminal case. Muhammad Arshad (PW-1)-the complainant admitted during cross-examination that, "A person with the name of Fakhar is a police official, and he is our relative." Nusrat Bibi (PW-2) deposed during cross-examination that: - "I had accompanied my daughter to Allied Hospital and had also accompanied her dead body to civil hospital Gojra. I left the hospital at the time of autopsy of my daughter and came to my house.----- I had not seen Fakhar at civil hospital Gojra. I had also not seen Fakhar at allied hospital Faisalabad. PW volunteer that we only the witnesses were present there.----- I had cell number of Fakhar because he is my nephew and is serving in police department. I do not remember his cell number. I am primary pass. I cannot rebut or affirm that cell number 0336- 3453465 is cell number of my nephew Fakhar.----- I do not know the aforesaid cell number is mentioned on the refer slip of civil hospital, Gojra and also on the death certificate by Allied Hospital, Faisalabad. ---- The prosecution witnesses, i.e., Muhammad Arshad (PW-1)-the complainant, Nusrat Bibi (PW-2), and Asad Ullah Khan (PW-7), deliberately concealed the facts during their depositions. On the death certificate dated 17.10.2016 issued by Allied Hospital, Faisalabad, in the column for the name of the patient, it was specifically mentioned "Aqsa as told by Fakhar" and the cell number on the death certificate (Ex. PL) was mentioned as "03363453465". The same is the position on the refer slip (Ex. PM) issued by Eye-cum-General Hospital, wherein same cell number was mentioned. It reveals that Fakhar remained throughout with Aqsa Munawar, then injured during her treatment, but the prosecution witnesses, i.e., Muhammad Arshad (PW-1)-the complainant, Nusrat Bibi (PW-2) and Asad Ullah Khan (PW-7), deliberately concealed these facts. In clear words, the prosecution witnesses have not denied that Sana Ullah (the appellant) is a friend of Babar, who is the brother of
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Aqsa Munawar, the deceased. Instead, the defense brought on the record that the parents of Babar deserted him from their house, and this fact has been admitted by Nusrat Bibi (PW-2). All these facts lead to the undeniable conclusion that the prosecution witnesses, i.e., Muhammad Arshad (PW-1)-the complainant, Nusrat Bibi (PW-2), and Asad Ullah Khan (PW-7), failed to establish the incident happened similarly as deposed by the prosecution witnesses. It is also observed by Dr. Sobia Muneer W.M.O (PW-9), that "eyes semi opened." In the inquest report (Ex. PK), in column No.8, it is mentioned: "eyes opened." The prosecution witnesses, i.e., Muhammad Arshad (PW-1)-the complainant, Nusrat Bibi (PW-2), and Asad Ullah Khan (PW-7), deposed in their court statements that they took Aqsa Munawar (then injured) to Allied Hospital, Faisalabad where she succumbed to the injuries. If they attended to the deceased and she took her last breath in the hospital, then there was no reason for the eyes to be open. These facts create doubt in the prosecution case as well as on the credibility and truthfulness of the statements of prosecution witnesses, i.e., Muhammad Arshad (PW-1)-the complainant, Nusrat Bibi (PW-2), and Asad Ullah Khan (PW-7). This also creates doubt about the genuineness of the version given by prosecution witnesses, i.e., Muhammad Arshad (PW-1)-the complainant, Nusrat Bibi (PW-2), and Asad Ullah Khan (PW-7). By now, it is well-settled law that medical evidence can only indicate that the deceased had lost his life due to specific injuries, but it does not lead to the culprits. Reliance is placed on the judgment…
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