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Petitioner: LIAQAT ALI VS Respondent: THE STATEHonorable Justice HASNAT AHMAD KHANM. Ahsan Bhoon,Nusrat Javed Bajwa
2007 P Cr
2007 P Cr. L J 1736
[Lahore]
Before Khawaja Muhammad Sharif and Hasnat Ahmad Khan, JJ
LIAQAT ALI----Appellant
Versus
THE STATE----Respondent
Criminal Appeals Nos.670 of 2001, 232 of 2003 and Murder Reference No.425 of 2001, decided on 11th July, 2007.
Penal Code (XLV of 1860)---
----S. 302/34---Appreciation of evidence---Inconsistency existed between the medical evidence and ocular evidence acid medical evidence had totally contradicted ocular version---Had both the eye-witnesses seen the occurrence, their evidence could not have been inconsistent with the medical evidence and they would have certainly observed that there was only one fire which hit the deceased---Case was not the one wherein so many shots were made by so many persons---Had it been such a case, that glaring inconsistency would have been condoned---Motive of occurrence remained unproved---Facts had. proved that occurrence was adventitious one---Prosecution witness, who was Homeopathic. Doctor, his clinic being at a distance of 1-1/4 miles from the place of occurrence had not given any special reason to be present at the place of occurrence on the day of occurrence---Other prosecution witness, who was not produced, was not a resident of village concerned---Accused, as per prosecution version, .had resorted to indiscriminate firing, but no crime empty was recovered from the spot---Both eye-witnesses had made dishonest material improvements besides contradicting each other---All said facts had indicated that ocular evidence was neither confidence-inspiring nor dependable---Case was of two versions and defence version was more probable than prosecution version---Attending circumstances had spelled out the plea of self-defence of property---Even the statements of the eye-witnesses had revealed that complainant was not in possession of land in question and the tenor of their cross-examination had revealed that occurrence had taken place due to the fact that deceased had tried to dispossess. accused---Recovery of weapons of offence, was useless for the prosecution; firstly because no empty of bullet was recovered from .the place of occurrence; and secondly in view of the fact that defence plea had been accepted---Recovery had even otherwise lost its efficacy---Prosecution had tailed to prove its case in the manner as alleged by it---While extending benefit of doubt to co-accused, it was held that murder of deceased was committed by accused in exercise of right of defence of property---Appeal filed by both accused was accepted and they were acquitted of the charge.
Muhammad Ikram Butt and others v. Sajjad Hussain and others PLD 2004 SC 244; Syed Ali Beopari v. Nibran Mulla and others PLD 1962 SC 502 and Bashir Ahmad and others v. The State PLD 1985 Lah. 158 ref.
M. Ahsan Bhoon for Appellant.
Nusrat Javed Bajwa for the Complainant.
Dates of hearing: 10th and 11th July, 2007.
JUDGMENT
HASNAT AHMAD KHAN, J.--- Through this single judgment we intend to dispose of Appeal titled "Liaqat Ali v. State" Criminal Appeal No.670 of 2001, "Muhammad. Tufail v. The State" Criminal Appeal No.232 of 2003 and "State v. Liaqat Ali" Murder Reference No.425 of 2001 as all these matters have stemmed from one and the same impugned judgment dated 20-4-2001 handed down by the learned Additional Sessions Judge, Gujranwala, whereby Liaqat Ali appellant has been convicted under section 302, P.P.C. and sentenced to death as Tazir and Fine of Rs.20,000 in default whereof further one year's R.I. In case of recovery the same had been ordered to be paid to the legal heirs of deceased.
Vide the same judgment Muhammad Tufail appellant had been convicted under section 302/34, P.P.C. and sentenced to imprisonment for life plus fine of Rs.20,000 in default whereof further one year's R.I. In case .of recovery the same has been ordered to be paid to the legal heirs of deceased.
2. Compendium of the prosecution story as unfurled in the F.I.R. lodged at the instance of Muhammad Sarwar complainant/P.W.7 is that on 17-11-1999 at 12-00 noon Muzamal Sohail Sarwar/P.W.B and Pervaiz Iqbal (deceased) were ploughing land owned by Augaf Department obtained by Pervaiz Iqbal (deceased) through lease. At the relevant time Muzamal Sohail Sarwar P.W.8 was allegedly driving tractor while Pervaiz Igbal (deceased) was standing on a nearby path. The complainant further stated that he and Sajjad Ahmad P.W. (not produced) were proceeding towards the said land from their village while having a chit-chat. At that time Muhammad Tufail. and Liagat Ali accused/appellants, armed with rifles, were leading them along with their cattle. After reaching near Pervaiz Igbal, Muhammad Tufail appellant allegedly raised a Lalkara/Ululation on which Liagat Ali appellant statedly fired a shot with his rifle which landed on the left "Phar/shoulder area of Pervaiz Igbal (deceased). Thereafter Muhammad Tufail appellant allegedly caused fire-arm injury on the right "Dola"/upper arm of the deceased which after going through and through, reportedly, entered into armpit of the deceased; On raising of commotion, both the appellants pounced on Muzamal Sohail Sarwar P.W.8 who allegedly showed a clear pair of heals after alighting from the tractor. Thereafter the appellants shot at the tractor due to which a tyre of the tractor was burst. The accused decamped from the scene while firing. Pervaiz Igbal kicked the bucket at the spot. The apple of discord was stated to be a piece of the land, owned by the Augaf Department, which at the time of unfortunate occurrence was being ploughed by the complainant party. According to the complainant the said land remained with the accused party for 7/8 years but the same had been leased out to the complainant party by the Augaf Department due to which the accused felt aggrieved and allegedly caused the murder of Pervaiz Iqbal. The statement of the complainant Exh.P.C. was recorded at 12-45 p.m. by Imdad Hussain S.-L/S. H.O. who, statedly, had met the complainant at "Pul Sem Nala Marri Bihdraan".
3. The said statement was, reportedly, sent to the police station for registration of the case whereafter Imdad Hussain, S.-L/S.H.O. proceeded towards the place of occurrence and prepared injury statement and inquest report Exh.P.H. anal. Exh.P.J. respectively. Thereafter he wrote an application Exh.P.K. for .post-mortem of the corpse of deceased, whereafter, the dead body of the Pervaiz Iqbal deceased was dispatched by him to the Civil Hospital Kamoke. Thereafter the said S.-I. prepared rough site plan Exh.P.L: which was followed by recovery of blood-stained earth vide recovery memo. Exh.P.E. On 18-11-1999 said S.-I. again visited site where he received last-worn clothes of the deceased through Exh.P.F. Thereafter, he got prepared scaled site plan. in duplicate Exhs.P.B. and P.B./1. Muhammad Tufail appellant was arrested on 7-12-1999, while Liaqat Ali appellant was arrested by him on 25- l l -2000. According to him, Liaqat Ali appellant got recovered a .7 mm rifle Exh.P.S. along with five live bullets vide recovery memo. P.G. While Muhammad Tufail appellant got recovered .12 bore rifle P.1 vide Exh.P.D. After completion of the .investigation the said S,-L prepared report under section 173, Cr.P.C. whereby the appellants were challaned. Thereafter, both the appellants were indicted on charge of murder.
4. During the trial the prosecution produced as many as 11 witnesses, out of whom Dr. Zafar Abbas Bokhari, who had conducted the post-mortem examination upon the dead body of the deceased appeared as P.W.1. While deposing before the learned trial Court the said doctor gave the detail of injuries received by deceased as under:--
"Injuries
(1) An oval lacerated wound 1-1/2 c.m. x 1-112 c.m. on the posterior later part of left shoulder lying 6 c.m. posterior to the superior axillary line (fold) and 17 c.m, from the middle line. No blackening seen inverted margins (entry wound).
(2) An oblong lacerated wound 2 x 1 c.m. on the middle part right axilla, everted margins and no blackening seen. (exist of injury No. 1).
(3) Rounded lacerated wound 2 x 1 c.m. on the inner aspect of right upper arm on the corresponding part of injury No.2, no blackening seen, inverted margins (entry of injury No.2).
(4) Lacerated wound 3 x 1-1/2 c.m. on the outer and approximal 1/3 part of the right upper arm (exit of injury No.3). No blackening everted margins, pieces of flesh coming out of it. (injury No.1) is entering obliquely into the left chest.
Interior examination
Injury No.1 opened, foreign body entered through upper (posterior lateral part of left shoulder) part of left chest injuring posterior chest wall, pleura, left lung after fracturing 7th and 8th left rib posterior part then by passing behind the pericardium entered into the middle lobe of right lung then entered to the superior part of liver and come out of the right chest by fracturing right 6th rib interior part, through right axilla (mid part). (injury No.2). Injury No.3 was the entry wound on the inner side of right upper arm and injury No.4 was its exit. No fracture seen, only flesh and blood vessels damages. "underlining is ours".
According to his opinion all the injuries were anti-mortem in nature inflicted by fire-arm weapon. He further deposed that injury No. l was most grievous and fatal injury causing severe trauma on the left chest by fracturing left rib No.7th and 8th and damaging left lung right lung and liver, (vital organ)-and fracture of right 6th rib (traumatic shock and severe internal haemorrhage, internal as well as external).
5. Zafar Iqbal Patwari who had prepared the scaled site plan of the place of occurrence showed up in the witness-box as P.W.S and proved .the site plan Exh.P.B. and Exh.P.B./1. Muhammad Sarwar complainant and Muzamal Sohail Sarwar entered the witness-box as P.W.7 and P.W.8 respectively and furnished their ocular account. Javed Iqbal who had claimed to have witnessed the recovery of rifle at the instance of Liaqat Ali had appeared as P:W.10. Lastly Imdad Hussain, S.-L, who as mentioned above had recorded the complaint and investigated the case, came forward as P.W.1 T. Rest of witnesses being formal in nature need not to be mentioned. After tendering the reports of Chemical Examiner, Serologist and Forensic Science Laboratory as Bxh.P.M., Exh.P.N. and Exh.P.Q, respectively the learned A.P.P. closed the prosecution evidence. Whereafter both the accused/convicts were examined under section 342, Cr.P.C. while answering to question No.9 Liaqat Ali appellant made the following reply:---
"On the day of occurrence deceased along with several persons had come to forcibly occupy Auqaf land and dispossessed Muhammad Nazir, my tenant. The companions of deceased started Firing out of the pressure of getting the possession of the said land one fire hit Pervaiz Iqbal deceased per chance. P.Ws. being relatives of the deceased have falsely deposed against and have falsely involved me in this case."
While answering to a similar question Muhammad Tufail appellant simply stated that he was innocent. However, both of them refused to appear under section 340(2), Cr.P.C. Nevertheless Liagat Ali produced certain documents in his defence as Exh.D.B., Exh.D.C., Exh.D.D. and Exh.D.E. besides Exh.D.A. and opted to close his defence evidence.
6. After the conclusion of the trial the appellants were found guilty and were accordingly convicted and sentenced as mentioned above.
7. In support of the appeals learned counsel for the appellants has contended that the prosecution had miserably failed to prove its case; that the medical evidence outrightly contradicted the ocular evidence inasmuch as according to the prosecution both the appellants had caused Piro-arm injuries to the deceased one after the other but according to the medical evidence the Pervaiz Iqbal deceased had suffered only one injury; that according to the prosecution Muhammad Tufail appellant had shot at the arm of deceased but according to the doctor who had conducted the post-mortem examination there was no separate injury on the arm of the .deceased and the injury attributed to the said appellant was in fact an exit wound to injury No.1. That said glaring contradiction and seeming inconsistency in the medical evidence and the ocular evidence clearly shows that the occurrence was. not witnessed by the eye-witnesses; that both the eye-witnesses are chance witnesses and they had got no reason, business or occasion to be present at the time and place of occurrence; that according to the prosecution case both the appellants after resorting to effective firing had resorted to reckless firing while fleeing away from the spot but no crime-empty was recovered from the spot; that both the eye-witnesses who are closely related to the deceased had made dishonest and material improvements to ensure the conviction of both the appellant; that the prosecution's claim is that the complainant party was in possession of the land which became the bone of contention between the parties but the prosecution's witnesses had miserably failed to establish that the complainant party was in possession of the said land; that in fact Muhammad Tufail appellant being the lessee of land in question was in possession of the same and it was the complainant party who had tried to dispossess the appellants from the land in question and that the documents produced in defence proved beyond any shadow of doubt that it was the complainant party which was in possession of land in question. He adds that Muhammad Tufail appellant had obtained a stay order from a Civil Court on 6-11-1999 whereby deceased was restrained from interfering in the lawful possession of Muhammad Tufail appellant: Further adds that the said stay order was operative on the date of occurrence which shows that the occurrence had taken place as a result of aggression shown by the Pervaiz Iqbal (deceased). Further maintains that the occurrence had neither taken place as alleged by the prosecution nor it was witnessed by the eye-witnesses as claimed by them. Further asserts that though the appellants had not specifically. taken the plea of self-.defence of the property yet the attending circumstances and the prosecution evidence coupled with .the documents produced in evidence show that it was a case of self-defence; that both the parties having failed to make a clear breast of the real facts, the Court whle exercising the judicious perception can plumb the depths of the real facts and that the recovery of rides cannot advance the case of the prosecution as no empty of airy. bullet was recovered from the spot. On the basis of the said contentions the learned counsel for the appellants has sought clean acquittal of his clients.
8. Conversely, the learned counsel for the complainant assisted by the learned Additional Prosecutor-General has poured scorn over the claim of the learned counsel for the appellants and contended that it was a day time occurrence which was duly witnessed by the eye-witnesses and the matter was reported to the police promptly, therefore there is no occasion for disbelieving the ocular evidence. Adds that Muhammad Tufail appellant who was lessee of the land owned by Auqaf Department had failed to pay the instalments of lease to the said Department and therefore, the lease granted in its favour had been cancelled. Further adds that after the cancellation of lease the same was granted in favour of the complainant. However, he has failed to substantiate his contention through any documentary evidence. He has unsuccessfully tried to gain. some benefit from the document produced by the defence as Exh.D.B. by contending that the arrears of lease amount from 1994 to 1999 was paid by Muhammad Tufail to the Auqaf Department on 10-8-1999 and on the basis of the said document he has contended that being a defaulter of Department the lease granted in his favour had been cancelled. The learned counsel for the complainant adds that the defence version being not convincing merits rejection straightaway.
9. Heard. Record perused.
10. First of all we would like to scrutinize and analyze the medical evidence. According to the prosecution the appellants had caused two fire-arm injuries to the deceased. Liaqat Ali appellant had been attributed the injury which had landed on the left shoulder of the deceased. While according to the prosecution Muhammad Tufail appellant had shot at right "Dola"/upper arm of the deceased with a rifle but according to the doctor, who had conducted the post-mortem examination upon the body of the deceased, he had received. only one fire-arm injury on the posterior later part of left shoulder which after making-exit on the middle part of right axilla made entry into the inner aspect of the right arm making another exit on the outer part of right upper arm. While making statement during .his examination-in-chief said doctor had candidly deposed that injury No.3 was entry wound and injury No.4 was its exit. During his cross-examination said doctor made it further clear by stating that injuries Nos.1 to 4 were caused by one shot. The pictorial diagram of the injury made by said doctor at the time of post-mortem examination also clearly indicates that the deceased had received only one fire-arm injury. Therefore, we have come to a definite conclusion that there is a seeming inconsistency between the medical evidence and the ocular evidence rather the medical evidence has failed to buttress the ocular A version and. the role attributed to Muhammad Tufail appellant is clearly belied. After disbelieving the prosecution's story as far as role attributed to Muhammad Tufail we are taking the prosecution's case with a grain of salt.
11. As far as motive is concerned it is the.. case of the prosecution that the complainant party being lessee of the Auqaf Department was in possession of the land in question and it was accused party which had launched an assault to dispossess the complainant party but the prosecution had not come up with a single document even to bear the testimony of the fact that the land in question had been leased out to the deceased or the complainant. Learned counsel for the complainant had wasted his breath to try to build up his case on the basis of a document Exh.D.B. produced by the defence by contending that Muhammad Tufail had become a defaulter of Auqaf Department as such the lease granted in his favour had been cancelled. To further expound his contentions the learned counsel for. the complainant has contended that arrears of the .lease amount of rive years were paid by Muhammad Tufail at one go on 10-8-1999. On the basis of same document he has further submitted that Muhammad Tufail had leased. the land from Kharif 1994 to Rabi 1999 and therefore, on the date of occurrence term of lease of disputed land had expired but his labour to substantiate this point was in vain for the reasons that he could not come up with any documentary evidence to show that the lease granted in favour of Muhammad Tufail had in fact been cancelled. In the same way there is nothing on the record to show that after the cancellation of the lease any fresh auction was held to grant the lease of the said land. No lease deed executed in favour of the deceased was produced by the complainant party even before the Investigating Officer. Besides that according' to the ocular version Muzamal Sohail Sarwar was ploughing the land with tractor at the relevant time but while appearing in the witness-box Zafar Iqbal Patwari had deposed that at the time of preparation of the site plan he had not seen any ploughed field. Moreover the tractor used for ploughing the land was not taken into possession by the police, though according to the prosecution one of its tyre had been burst due to a fire made by the accused party. The narration of the above said facts shows that the story of the raison d'etre as advanced by the prosecution is found to be hazy and as a matter it seems contrary to reason, therefore, we are inclined to hold that the prosecution has failed to evince it.
12. Now we would like to take. up the ocular version. According to the F.LR. at the time of occurrence Muzamal Sohail Sarwar P.W.7 was ploughing the land which was the apple of discord between the parties while Pervaiz Iqbal (deceased) was standing nearby on a path. Before the occurrence took place both the accused/appellants were allegedly walking ahead of complainant and Sajjad P.W. (not produced). At that time both the appellants were allegedly armed with rifles but interestingly enough certain cattle were driven by the said accused. That .shows that the appellants .were busy in performance of their normal pursuits. During cross-examination P.W.8 claimed that the appellants had hidden their rules in the "Chaddars". These facts indicate that the occurrence was adventitious one. Filing of the suit by Tufail appellant and issuance of status quo order some days before the occurrence shows that charged atmosphere was prevailing there. To pre-empt untowards incident possibility of keeping of arms by the parties cannot be ruled out.
As mentioned above the medical evidence has totally contradicted the ocular version. Had both the eye-witnesses seen the occurrence their evidence could not have been inconsistent with the medical evidence and they would have certainly observed that there was only one fire which had hit the deceased. Obviously it is not a case wherein so many shots were made by so many persons. Had it been such a case, this glaring inconsistency would have been condoned.
13. While appearing as P.W.7 Muhammad Sarwar candidly admitted that he was practising, as Homeophathic Doctor and he used to practice in the days of occurrence. He further stated that he used to go to his clinic at 9-00 a.m. to work till evening. His clinic was admittedly at a distance of 1-1/4 miles from the place of occurrence. He had not given any special reason to be present, at the place of occurrence on the fateful day. Similarly Sajjad Ahmad P.W. (not produced) was not a resident of said E the village. Muzamal Sohail Sarwar P.W.8 admittedly was a student in the days of the occurrence. Though according to the prosecution both the appellants had fired upon him (P.W.8) but he remained unscathed. According to the prosecution the appellants had resorted to indiscriminate firing but no crime-empty was recovered from the spot. Both the eye-witnesses had made dishonest material improvements besides contradicting each other. According to P.W.7 he had picked up four crime-empties from the place of occurrence while according to' Muzamal Sohail Sarwar P.W.8 no empty shell was recovered from the spot. Said witness had made another improvement while submitting that the accused had hidden their rifles in their Chadars before launching an assault upon them. As far as promptness of the F.LR. is concerned, suffice to hold that the same was registered on the basis of complaint which was allegedly recorded when the complainant, statedly, met the P.W.11 who was on patrolling duty.. Considering the evidence on record, possibility of recording, of F.I.R. after preliminary inquiry cannot be, ruled out. All said facts indicate that the ocular evidence is neither) confidence-inspiring nor dependable.
14. Obviously it is a case of two versions which are not quite marrying-up, so to decide the fact of this case we will have to put both the versions in juxta-position. According to the prosecution. the disputed land was in possession of the deceased while according to defence version said land was in possession of Muhammad Tufail appellant. The complainant party claimed that it was accused party who had launched an attack resulting in death of Pervaiz Iqbal. But it seems an empty talk as to prove its case the prosecution had failed to produce any document either before the Investigating Officer or before the trial Court. The tractor which was being used for ploughing land was not taken into possession though one of its tyre had been allegedly burst by firing. The cattle driven by the accused also remained unhurt. The eye-witnesses have contradicted each other on the point of direction and distance of firing made by the assailants. The site plan shows that during firing the witnesses were standing right in between the assailants and the deceased, which is not probable. Though while making- statement under, section 342, Cr.P.C. the appellant had not taken a specific plea of self-defence yet we cannot shrug of our duty to analyze the whole evidence to plumb the depths of the real facts. By now it has been established that if the prosecution and the attending circumstances lead to the conclusion that it was a case of self-defence the Court can grant the benefit of such defence to the accused despite the fact that specific plea to this effect had not been taken by the accused. In this regard we are…
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