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Petitioner: MAQBOOL alias QOOLI VS Respondent: The STATE
Court Name: Lahore High Court Judge(s): Manzoor Ahmad Malik Title: MAQBOOL alias QOOLI vs The STATE Case No.: Criminal Appeal No.214-J and Criminal Revision No.504 of 2010 Date of Judgment:2014-06-03 Reported As: 2015 MLD 525 Result: Appeal allowed
JUDGMENT
JUDGMENT ' MANZOOR AHMAD MALIK, J.---Maqbool alias Qooli (appellant) was tried by the learned Additional Sessions Judge, Arifwala in case F.I.R. No.548/2008 dated 28-8-2008 offence under section 302, P.P.C. Registered at Police Station Sadar Arifwala, District Pakpattan Sharif. Vide judgment dated 19- 3-2010 passed by the learned Additional Sessions Judge, Arifwala, the appellant has been convicted under section 302(b), P.P.C. And sentenced to undergo imprisonment for life with further direction to pay a compensation of Rs.1,00,000 (rupees one lakh only) to the legal heirs of Naeem Mehmood (deceased), as provided under section 544-A, Code of Criminal Procedure and in default whereof. The appellant had to suffer six months' S.I. Benefit of section 382-B, Code of Criminal Procedure was, however, extended to the appellant. Assailing the above conviction and sentence, Maqbool alias Qooli (appellant) has preferred the appeal in hand whereas Abdul Razzaq complainant has filed Criminal Revision No.504 of 2010 for enhancement of the sentence of imprisonment for life to death sentence of Maqbool alias Qooli respondent No.l. Since both these matters have arisen out of the same judgment, therefore, shall be decided together through this single judgment. 2. Precisely, facts of the case, as contained in F.I.R. (Exh.PC/1) regis-red on the statement (Exh.PC) of Abdul Razzaq complainant (P.W.5) are that he (complainant) was an agriculturist. On 27-8-2008 at about 10/11:00 a.m. Naeem Mehmood paternal grandson of the complainant, 18 years old, went to the dhari of Muhammad. Ashraf Joyia from his house but did not come back till that day i.e. 28-8- 2008 at 11.00 a.m. Complainant along with Muhammad Yaseen son of Abdul Razzaq, caste Joyia and Bashir Ahmad son of Ali Muhammad, Caste Bhatti, resident of 339/GB, went out from the house in search of Naeem Mehmood. When they reached near the land of Hashim Bhatti, Muhammad
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Aslam (P.W.3) and Muhammad Ashraf (P.W.4) met them who were coming from the tube-well of Muhammad Aslam Bhatti. On their query the said witnesses told them that on the preceding day they were cutting grass from the land of one Falak Sher Bhatti son of Bagh Ali, caste Bhatti, resident of 339/GB and saw that Maqbool (appellant) was holding Naeem Mehmood (deceased) from his collar and was giving headbutts to Naeem Mehmood on his face and different parts of his body. They asked them not to quarrel. On their alarm for the time being the quarrel ended. On the`said information, the complainant's side went to the land owned by Manzoor Ahmad where dead body of Naeem Mehmood was lying in the cotton crop and blood was oozing from his nose, mouth and from both the ears and there were two injuries on the right cheek and swelling on the back of his head. It was further alleged in the F.I.R. That Maqbool (appellant) had committed the murder of his grandson namely Naeem Mehmood by giving headbutts. Motive as alleged in the F.I.R. Was that Maqbool (appellant) was vagabond of the area and he wanted to pressurize the boys of the locality by beating them and due to the said reason he had murdered Naeem Mehmood grandson of the complainant. 3. Muhammad Waryam S.I. (P.W.8) was posted at Police Station Sadar Arifwala, District Pakpattan Sharif. On 28-8-2008 he along with other police officials was present on the bridge of Dilwala Bangla in connection with patrol duty. Abdul Razzaq complainant appeared before him and got recorded his statement (Exh.PC) which was sent to the Police Station through Muhammad Nawaz 611-C for registration of the F.I.R. Thereafter, he reached the place of occurrence and inspected the spot and during the spot inspection he prepared rough site plan (Exh.PG). He took into possession blood stained earth from the place of occurrence vide recovery memo (Exh.PH). He prepared inquest report (Exh.PE) and injury statement (Exh.PF). After the postmortem examination Muhammad Shad (P.W.1) handed over to him last worn clothes of the deceased which were taken into possession vide recovery Memo (Exh.PA). He got prepared scaled site plan (Exh.PB) through Ghulam Mustafa Chughtai Draftsman (P.W.2). On 29-8-2008, he arrested Maqbool alias Qooli (appellant) and sent him to judicial lock up on 30-8-2008. Thereafter, he got prepared the report under section 173, Code of Criminal Procedure and sent the same in the court of competent jurisdiction. 4. The appellant was summoned by the learned Addl. Sessions Judge, Arifwala to face the trial. Copies of the documents, as required under section 265-C, Code of Criminal Procedure, were provided to him and formal charge under section 302, P.P.C. Was framed against him on 13-6-2009 to which he pleaded not guilty and claimed trial. In order to prove its case, prosecution examined as many as eight witnesses in all. Muhammad Shad 420/C (P.W.1) stated that after the postmortem examination upon the dead-body of Naeem Mehmood (deceased) he produced last worn clothes viz shalwar (P.1) and kameez (P.2) before Muhammad Waryam S.I. (P.W.8) who took the same into possession vide recovery memo (Exh.PA). Ghulam Mustafa Chughtai Draftsman (P.W.2) prepared scaled site plan (Exli.PB) and Exh.PB/1) on the direction of Investigation Officer and pointation of the P.Ws. Muhammad Aslam (P.W.3) and Muhammad Ashraf (P.W.4) furnished the evidence of last seen and also stated that in their presence the appellant was beating Naeem Mehmood (deceased), however, on their asking they separated for the time being. Abdul Razzaq (P.W.5) reiterated the story of prosecution as set out in the F.I.R. Niaz Ahmad (P.W.6) identified the dead-body of Naeem Mehmood (deceased) and also attested the recovery memo of last worn clothes. Dr Shamshair Ali (P.W.7) furnished the medical evidence. Muhammad Waryam S.I. (P.W.8) investigated this case and while appearing in the witness box narrated the various steps taken by him during the course of investigation. Learned Assistant District Public Prosecutor gave up Bashir Ahmad, Yaseen and Hanif (P.Ws.) being won over by the accused vide statement dated 21-12-2009. Learned Deputy District Public Prosecutor closed the prosecution case on 17-2-2010 after tendering in evidence report of Chemical Examiner (Exh.PJ) and that of Serologist (Exh.PK). Statement of the
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appellant was recorded under section 342, Code of Criminal Procedure on 17-2-2010 wherein he refuted all the prosecution allegations levelled against him and professed his innocence. To a question as to why the case against him and why the prosecution witnesses had deposed against him, Maqbool alias Qooli (appellant) replied as under:-- "It is a false case. The murder was blind one. P.W. Muhammad Aslam is political figure of area, due to political differences as well as real brother of the said P.W. Namely Muhammad Anwar purchased property from the step mother of the accused and there were differences of demarcation as well as ownership while P.W. Muhammad Ashraf had differences on the distribution of amounts of joint Tube Well with Muhammad Shan brother-in-law of the accused and the said P.W. Is close relative of the complainant." ' The appellant did not appear as his own witness in disproof of the allegations levelled against him as provided under section 340(2), Code of Criminal Procedure. However, he produced certified copy of F.I.R. No.62/2009 (Exh.DC), copy of F.I.R. No.424 (Exh.DD), copy of F.I.R. No.278/2005 (Exh.DE), copy of F.I.R. No.22/2009 (Exh.DF), copy of the petition filed by Azra Bibi against the DPO etc., (Mark.A) and copy of Mutation No.876 dated 28-2-2006 (Mark.B) in his defence and closed his defence evidence vide statement dated 24-2-2010. 5. After conclusion of the trial, the learned trial court convicted and sentenced the appellant as detailed above. Hence, this appeal and criminal revision. 6. Learned counsel for the appellant, in support of this appeal, contends that in the relevant column of F.I.R. (Exh.PC/1) meant for the date and time of occurrence date 27-8-2008 is mentioned whereas no time is mentioned and instead words 'last evening' have been stated whereas the same was reported to the Police on the next day i.e. 28-8-2008 at 11:45 a.m; that it is the case of the complainant in the F.I.R. That his paternal grandson namely Naeem Mehmood (deceased) left his house for going to the house of Muhammad Ashraf (P.W.4) who did not return home and the complainant along with his son namely Muhammad Yaseen (P.W. Since given up) started his search on the next day after 11.00 a.m but there is nothing on record as to why instead of straightway contacting said Muhammad Ashraf (P.W.4) in whose house Naeem Mehmood (deceased) was supposed to go the complainant's side started his search; that the complainant based the contents of the F.I.R. On the information allegedly imparted to him by Muhammad Aslam (P.W.3) and Muhammad Ashraf (P.W.4) who claimed that on the previous evening i.e. 27-8-2008 they were cutting grass in cotton crop from the land owned by one Manzoor Ahmad; that the story of cutting grass by Muhammad Aslam (P.W.3) and Muhamniad Ashraf (P.W.4)' is highly improbable as Muhammad Aslam (P.W.3) stated during his cross-examination that he participated in the local body election and supported the candidates of National Assembly as well as Provincial Assembly in his village; that the said P.W. Further stated that he had servant for cultivation of his property and Muhammad Ashraf (P.W.4) also stated during his cross-examination that he had cast his vote in favour of Muhammad Aslam (P.W.3); that Muhammad Ashraf (P.W.4) during his cross-examination affirmatively responded to the suggestion that Muhammad Aslam (P.W.3) was not a labourer, therefore, the very reason for presence of both these witnesses to witness the alleged fight between the appellant and Naeem Mehmood (deceased) is doubtful in nature and could not be proved by the prosecution; that it is case of both the witnesses i.e. Muhammad Aslam (P.W.3) and Muhammad Ashraf (P:W.4) that they forbade the appellant and the deceased and both of them separated and thereafter they lifted the heap of grass and came to their house; that Muhammad Ashraf (P.W.4) stated during his cross-examination that the fight between Maqbool alias Qooli (appellant) and Naeem Mehmood (deceased) was of trivial nature, so they had not physically intervened in the fight and asked them to stop the fight from a distance meaning thereby that when they lastly saw Naeem Mehmood (deceased) he was healthy and was not suffering any grievous injury; that it was not claimed by any of these witnesses that he witnessed the appellant
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while killing Naeem Mehmood (deceased), therefore, their evidence at the most can be termed as evidence of last seen; that Muhammad Aslam (P.W.3) and Muhammad Ashraf (P.W.4) did not state that the appellant was armed with any weapon at the time of his alleged fight with the deceased, however, Dr. Shamshair Ali (P.W.7) who conducted post mortem examination on the dead body of Naeem Mehmood (deceased) stated before the learned trial court that injuries Nos.1 and 2 were caused by sharp edged weapon while injury No.3 was caused by blunt weapon and as such the prosecution case is contradicted by the medical evidence; that in the relevant column of F.I.R. Time of occurrence is mentioned as evening time and Muhammad Aslam (P.W.3) stated during his cross-examination that he had told to the Investigating Officer the time of occurrence as 06:00 p.m. Whereas in the post mortem examination conducted upon the dead body of Naeem Mehmood (deceased) on 28-8-2008 at 04:30 p.m. The probable time between post mortem examination and death was 20-24 hours meaning thereby that according to the medical evidence the death of Naeem Mehmood (deceased) in all probabilities occurred at or prior to 04:30 p.m on 27-8-2008 and as such the time of death of Naeem Mehmood claimed by Muhammad Aslam (P.W.3), Muhammad Ashraf (P.W.4) and Abdul Razzaq complainant (P.W.5) does not coincide with the time of death opined by the doctor (P.W.7); that the story of fight between Maqbool alias Qooli (appellant) and Naeem Mehmood (deceased) is negated by another circumstance as according to the contents of the F.I.R. Naeem Mehmood (deceased) was a young man of eighteen years of age and according to the inquest report (Exh.PE) and post mortem report (Exh.PD) he had the height of five feet and seven inches and was a healthy man whereas the appellant was twenty eight years old and in the circumstances if there was a fight between the appellant and Naeem Mehmood (deceased) the appellant who according to the stance of Muhammad Aslam (P.W.3) and Muhammad Ashraf (P.W.4) was not armed with any weapon must have received injuries and even Dr Shamshair Ali (P.W.7) who conducted the post mortem examination during his cross- examination affirmatively responded to the suggestion that as a result of colliding of two young persons both sustain injuries equally but Muhammad Waryam S.I (P.W.8) who arrested the appellant on 29-8-2008 i.e. Just two days after the death of Naeem Mehmood (deceased) stated during his cross-examination that there was no injury on body of the appellant at the time of his arrest, so he was not got medically examined; that motive set out in the F.I.R. Was that Maqbool (appellant) was vagabond of the area and he wanted to pressurize the boys of the locality by beating them and due to the said reason he had murdered Naeem Mehmood grandson of the complainant, however, while appearing before the learned trial court the complainant introduced altogether a different story qua motive behind the occurrence by stating that the appellant had abused Naeem Mehmood (deceased) 4/5 days prior to the occurrence and an altercation had taken place between both of them and upon intervention of the complainant the appellant had extended threats of dire consequences; that during his cross-examination the complainant categorically stated that he had not intimated the Police about the threats of the appellant and no criminal case was registered against the appellant about fighting except the present case; that Muhammad Ashraf (P.W.4) stated in his examination in chief that there was no motive behind the occurrence; that even otherwise the motive was not believed by the learned trial court for valid reasons recorded at page 12 of the impugned judgment; that there are material contradictions in the statements of prosecution witnesses as according to the rough site plan (Exh.PG) distance between the appellant and deceased on one side and Muhammad Aslam and Muhammad Ashraf on the other side was 25 feet whereas according to the scaled site plan (Exh.PB) the said distance was 55 feet, however, Muhammad Ashraf (P.W.4) stated during his cross-examination that he along with Muhammad Aslam (P. W.3) were present at the distance of 35-40 feet away from the place where Naeem Mehmood (deceased) and Maqbool alias Qooli (appellant) were fighting; that similarly Abdul Razzaq complainant (P. W.5) stated during his cross-examination that at the place
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of occurrence cotton crop was not damaged or broken and likewise Ghulam Mustafa Chughtai Draftsman (P.W.2) who prepared the scaled site plan stated that he had not observed damage to the cotton crop whereas the Investigating Officer (P.W.8) stated during his cross-examination that some cotton crop was damaged on small level due to the occurrence; that the Draftsman (P. W.2) who visited the place of occurrence on 30-8-2008 i.e. Just three days after the death of Naeem Mehmood (deceased) stated during his cross-examination that when he visited the place of occurrence the cotton was at the picking stage whereas Muhammad Aslam (P. W:3) in the opening sentence of his cross-examination negatively responded to the suggestion that in the days of occurrence cotton crop was in picking position and was in full bloom and in the same breath stated that cotton crop had not gained the fruit in those days; that similarly Muhammad Ashraf (P.W.4) and Abdul Razzaq complainant (P.W.5) also stated during their cross-examination that at the time of occurrence cotton crop was not at the stage of picking; that viewing from all angles the prosecution case is doubtful in nature and the appellant is entitled to the benefit of doubt not as a matter of grace but as of right. 7. On the other hand, learned Deputy District Public Prosecutor assisted by learned counsel for the complainant opposes this appeal on the grounds that the complainant has explained the delay in registration of the case in the F.I.R. By stating that Naeem Mehmood (deceased) left his home for visiting Muhammad Ashraf (deceased) on 27-8-2008 at 10/11.00 a.m but did not return home till 11:00 a.m on 28-8-2008 whereupon he along with his son namely Yaseen (P.W. Since given up) started his search and Muhammad Aslam (P.W.3) and Muhammad Ashraf (P.W.4) met them and on their asking when they reached in the cotton crop grown in the land owned by Manzoor Ahmad they saw the dead body of Naeem Mehmood (deceased) and thereafter the crime was reported to the Police on the same day at 11.45 a.m. Promptly without any delay; that Muhammad Aslam (P.W.3) and Muhammad Ashraf (P.W.4) who saw the appellant colliding the deceased in the cotton crop have stated a specific reason for their presence in the fields which is to the effect that they were cutting grass from the cotton crop grown on the land owned by Falak Sher; that this is a case of single accused and substitution in such like cases is a rare phenomenon as kith and kin of the deceased would not implicate an innocent person by letting off the real culprit; that the prosecution case is fully supported by the medical evidence; that a specific motive was set up by the complainant in the F.I.R. And while appearing before the learned trial court the same was explained; that the motive was not seriously disputed by the &fence but the same was illegally disbelieved by the learned trial court without assigning any cogent reasons; that the prosecution has brought home guilt against the appellant to the hilt and there is no merit in this appeal which merits outright dismissal. 8. In support of Criminal Revision No.504 of 2010 filed by the complainant for enhancement of the quantum of sentence from imprisonment for life to the death sentence, learned counsel for the complainant/petitioner contends that the appellant committed brutal murder of a young grandson of the complainant by causing him several injuries and as such he did not deserve any leniency in the quantum of his sentence but the learned trial court without any lawful justification awarded imprisonment for life to Maqbool alias Qooli (respondent No.1), therefore, the same be enhanced to death sentence. 9. I have heard learned counsel for the appellant as well as the learned Deputy District Public Prosecutor for the State assisted by learned counsel for the complainant and gone through the record with their able assistance. 10. The prosecution case has been reproduced in para 2 above and the same is not being reiterated here to avoid repetition. This occurrence wherein Naeem Mehmood (deceased) paternal grandson of Abdul Razzaq complainant (P.W.5) according to the F.I.R. (Exh.PC/1) took place on 27- 8-2008. In the relevant column of F.I.R. No time of occurrence is mentioned and instead words 'last
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evening' have been stated whereas the same was reported to the Police on the next day i.e. 28-8- 2008 at 11:45 a.m. It is the case of the complainant in the F.I.R. That his paternal grandson namely Naeem Mehmood (deceased) left his house for going to the house of Muhammad Ashraf (P.W.4) who did not return home and the complainant along with his son namely Muhammad Yaseen (P.W. Since given up) started his search on the next day after 11.00 a.m. But the question arises as to why instead of straightway contacting said Muhammad Ashraf (P.W.4) in whose house Naeem Mehmood (deceased) was supposed to go the complainant's side started his search, therefore, the prosecution story that Naeem Mehmood (deceased) had left his house for going to the house of Muhammad Ashraf (P.W.4) one day prior to the registration of F.I.R. Is doubtful in nature. 11. The complainant based the contents of the F.I.R. On the information allegedly imparted to him by Muhammad Aslam (P.W.3) and Muhammad Ashraf (P.W.4) who claimed that on the previous evening i.e. -27-8-2008 they were cutting grass in cotton crop from the land owned by one Manzoor Ahmad. The story of cutting grass by Muhammad Aslam (P.W.3) and Muhammad Ashraf (P.W.4) is highly improbable as Muhammad Aslam (P.W.3) stated during his cross-examination that he participated in the local body election and supported the candidates of National Assembly as well as Provincial Assembly in his village. The said witness (P.W.3) further stated that he had servant for cultivation of his property. Muhammad Ashraf (P.W.4) also stated during his cross- examination that he had cast his vote in favour of Muhammad Aslam (P.W.3). Moreover, said Muhammad Ashraf (P.W.4) during his cross-examination affirmatively responded to the suggestion that Muhammad Aslam (P.W.3) was not a labourer, therefore, the very reason for presence of both these witnesses to witness the alleged fight between the appellant and Naeem Mehmood (deceased) is also not free from doubts and could not be proved by the prosecution. 12. It is case of Muhammad Aslam (P.W.3) and Muhammad Ashraf (P.W.4) that they forbade the appellant and the deceased from fighting and both of them separated and thereafter they (P.W.3 and P.W.4) lifted the heap of grass and came to their house. Muhammad Ashraf (P.W.4) stated during his cross-examination that the fight between Maqbool alias Qooli (appellant) and. Naeem Mehmood (deceased) was of trivial nature, so they had not physically intervened in the fight and asked them to stop the fight, from a distance. Meaning thereby that when they lastly saw Naeem Mehmood (deceased) he was healthy and was not suffering any grievous injury. It was not claimed by any of these witnesses that he had witnessed the appellant while killing Naeem Mehmood (deceased), therefore, their evidence at the most can be termed as evidence of last seen and the same cannot be believed without there being any independent and strong corroboration which is not available in this case. 13. ,The story of fight between Maqbool alias Qooli (appellant) and Naeem Mehmood (deceased) is negated by another circumstance as according to the contents of the F.I.R. Naeem Mehmood (deceased) was a young man of eighteen years of age and according to the inquest report (Exh.PE) and post mortem report (Exh.PD) he had the height of five feet and seven inches and was a healthy man where the appellant was twenty eight years old and in the circumstances if there was a fight between the appellant and Naeem Mehmood (deceased) the appellant who according to the stance of Muhammad Aslam (P.W.3) and Muhammad Ashraf (P.W.4) was not armed with any weapon must have received injuries and even Dr Shamshair Ali (P.W.7) during his cross- examination affirmatively responded to the suggestion that as a result of colliding of two young persons both sustain injuries equally but Muhammad Waryam S.I. (P.W. 8) who arrested the appellant on 29-8-2008 i.e. Just two days after the death of Naeem Mehmood (deceased) stated during his cross-examination that there was no injury on body of the appellant at the time of his arrest, so he was not got medically examined 14. Muhammad Aslam (P.W.3) and Muhammad Ashraf (P.W.4) did not state that Maqbool alias Qooli (appellant) was armed with any weapon at the time of his alleged fight with Naeem
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Mehmood E (deceased), however, Dr Shamshair Ali (P.W.7) who conducted post mortem examination on the dead body of Naeem Mehmood (deceased) stated before the learned trial court that injuries Nos.1 and 2 were caused by sharp edged weapon While injury No.3 was caused by blunt weapon and as such the prosecution case is contradicted by the medical evidence. Moreover in the relevant column of F.I.R. Time of occurrence is mentioned as evening time however, Muhammad Aslam (P.W.3) stated during his cross-examination that he had told to the. Investigating Officpr the time of occurrence as 06:00 p.m. Whereas in the post mortem examination report conducted upon the dead body of Naeem Mehmood (deceased) on 28-8- 2008 at 04:30 p.m. The probable time between post mortem examination and death was 20-24 hours meaning thereby that according to the medical evidence the death of Naeem Mehmood (deceased) in…
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