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Petitioner: MEHMOOD AZAM VS Respondent: State
2018 Y L R 621 [Islamabd] Before Athar Minallah and Mohsin Akhtar Kayani, JJ MEHMOOD AZAM and others---Appellants Versus The STATE and others---Respondents Criminal Appeals Nos.127, 133 and Criminal Revision No.75 of 2016, decided on 29th May, 2017. (a) Criminal trial--- ----Evidence---Last seen evidence---Evidentiary value---Evidence of last seen has a corroborative value if other evidence connected the accused with the commission of offence---Evidence of last seen could only be considered to the extent of last seen evidence and not beyond. [Case-law referred]. (b) Penal Code (XLV of 1860)--- ----Ss. 302, 365, 377, 511, 201 & 34---Qatl-i-amd, kidnapping or abducting with intent to secretly and wrongfully confine person, un-natural offence, attempting to commit offences punishable with imprisonment for life or a shorter term, causing disappearance of evidence of offence or giving false information to screen offender, common intention---Appreciation of evidence---Benefit of doubt---Prosecution case was that the son of complainant was gone with the accused persons but did not turn up---Accused persons wanted to commit sodomy with the son of complainant and on his refusal, they murdered his son through firing and dead body was wrapped in a bedding and had thrown the body in jungle---Incident was confirmed through one of the nominated accused in the present case, who narrated the entire story in his own complaint, so another FIR was registered---Witness, who claimed to be the eye-witness of the alleged incident of murder, had appeared before the Trial Court and got recorded his statement---Statement of said witness showed that three accused persons had pointed their pistol at him and deceased, whereas two accused persons had clutched them for the purpose of sodomy and meanwhile, two accused persons had fired at him and deceased, as a result of said firing, one fire hit on the chest of deceased and he fell down---Later on, accused persons took him in a vehicle at about 11.30 p.m. to the jungle area, where, two accused started firing at him, three bullets hit him, due to which, he fell down on the ground, and accused persons fled away---Testimony of the said witness was silent about the injury details through Medico Legal Report, nor the prosecution ever produced such Medico Legal Report on record through which one could assume that said witness was injured with three firearm injuries---Statement of said witness showed that he was injured at two different occasions, firstly at the time of murder of the deceased and secondly when accused persons fired at him in jungle---Statement of eye-witness implied that he received four firearm injuries on his body but no such evidence was available on record to prove the same---Eye-witness stated that deceased had received two firearm injuries upon his body whereas the medical evidence as well as statement of Medical Officer had contradicted that very fact, as report clearly revealed only one firearm injury on the deceased---Contradiction existed in medical and ocular account, therefore, statement of eye-witness was not believable---Said witness had not referred his own FIR in his statement, therefore, the testimony of said witness required corroboration from an independent source---Sodomy was alleged motive for the offence, but there was no evidence in the entire case regarding any attempt to commit sodomy with deceased or eye-witness, except his own statement, which had not been corroborated through independent source---No evidence was available on record which confirmed that deceased had ever been abducted by force or there was any element of secret confinement of deceased as the dead body of deceased was recovered from open place---Circumstances established that prosecution had failed to prove its case beyond any shadow of doubt, benefit of which would resolve in favour of accused persons---Accused were acquitted in circumstances by setting aside convictions and sentences recorded by the Trial Court. (c) Criminal Procedure Code (V of 1898)--- ----S. 154---First Information Report---Evidentiary value---First Information Report was not a substantive piece of evidence and same could be used to set law in motion---First Information Report constituted corroborative evidence and its corroborative value was attached with the probative value of its maker. [Case-law referred]. (d) Criminal Procedure Code (V of 1898)--- ----S. 154---First information report---Scope---Mere production of a copy of FIR could not properly fall within the definition of "first information report" without criminal complaint; therefore it was to be excluded from consideration by the court. [Case-law referred]. (e) Criminal Procedure Code (V of 1898)--- ----S. 154---First information report---Counter FIR---Scope---When accused had made a counter FIR and admitted his presence at the scene of occurrence, the same could be used against him but not against the co-accused---Recording of another FIR in respect of same occurrence was not contemplated by law when the occurrence was based upon one transaction. [Case-law referred]. (f) Penal Code (XLV of 1860)--- ----Ss. 302, 365, 377, 511, 201 & 34---Qatl-i-amd, kidnapping or abducting with intent to secretly and wrongfully confine person, un-natural offence, attempting to commit offences punishable with imprisonment for life or a shorter terms, causing disappearance of evidence of offence or giving false information to screen offender, common intention---Appreciation of evidence---Recovery of weapon of offence from accused---Reliance---Scope---Weapon of offence, (pistol) was recovered at the instance of accused but had not been matched with the fire empties of 30-bore pistol---Recovery, in circumstances, had no significance in the present case. (g) Criminal trial--- ----Benefit of doubt---Principle---If any doubt emerged on record same would be sufficient to extend the benefit to the accused. [Case-law referred]. Raja Ikram Ameen Minhas and Muhammad Javaid Malik for Appellants (in Criminal Appeals Nos.127 and 133 of 2016). Qamar Inayat Raja for the Complainant (in Criminal Appeals Nos.127 and 133 of 2016). Yasir Barkat Ch. for the State Counsel (in Criminal Appeals Nos.127 and 133 of 2016). Qamar Inayat Raja for Petitioner (in Criminal Revision No.75 of 2016). Raja Ikram Ameen Minhas and Muhammad Javaid Malik for Respondents Nos.1 to 3 (in Criminal Revision No.75 of 2016). Yasir Barkat Ch. for the State Counsel (in Criminal Revision No.75 of 2016). Date of hearing: 26th April, 2017. JUDGMENT MOHSIN AKHTAR KAYANI, J.---Through the Criminal Appeal No.127/2016 (appellant Mehmood Azam) and through Criminal Appeal No.133/2016 (appellants Chaudhry Usman Mehmood and Haider Mehmood [brothers]) have assailed the judgment dated 17.06.2016 passed by learned Additional Sessions Judge (VIII) West-Islamabad, whereby all the three appellants have been convicted in case FIR No.358, dated 22.08.2012, under sections 302/365/377/511/201/34, P.P.C., Police Station Aabpara, Islamabad and sentenced as under:-- a) Under section 302(b)/34, P.P.C. to life imprisonment with fine of Rs.200,000/- each accused or in default of payment of the same, accused named above to further simple imprisonment for two (02) months. b) Under section 365/34, P.P.C. accused named above to three (03) years rigorous imprisonment with fine of Rs.30,000/- or in default of payment of the same, the accused named above to further simple imprisonment of three (03) months. c) Under section 201/34, P.P.C. accused named above are sentenced to 03 years rigorous imprisonment with fine of Rs.200,000/- or in default of payment of the same, the accused named above to further simple imprisonment of two (02) months. Benefit of section 382-B Cr.P.C. has also been extended to the appellants. All the sentences shall run concurrently. Whereas, complainant Muhammad Anar, has filed the Criminal Revision No.75/2016 in the same case for enhancement of punishment to the appellants as well as claimed sentence of "attempt to sodomy", in which all three appellants have not been charged. 2. Brief facts of the instant case are that, complainant Muhammad Anar (PW.1/(PW.3) lodged criminal complaint Ex.PE with the following words:-
The above referred complaint has been converted into FIR No.358/2012, dated 22.08.2012, under sections 365/34, 377/511, 201/302, P.P.C., Police Station Aabpara, Islamabad, wherein offences under sections 377/511, 201/302 have been incorporated after the investigation, whereas initial complaint was only to the extent of offence under sections 365/34, P.P.C. as the complainant PW-1 Muhammad Anar only leveled allegation for abduction of his son Kashif Anar (deceased) against Jamal Khan, Chaudhry Usman, Saif Ullah, Naeem Afridi and Mehmood Khan. 3. The dead body of deceased Kashif Anar was recovered on the information of Muhammad Ijaz Abbasi PW-10 following the day of incident, i.e. 23.08.2012, when he was on duty and his Naib Qasid told him that there is a dead body lying next to Bazar No.08, Gali No.57, Sector G-6/4, Islamabad. On his call to Rescue 15, police reached at spot and recovered dead body, which was identified vide memo of identification of dead body Ex.PC by the father of deceased Muhammad Anar (PW-1). 4. The above referred incident was confirmed through one of the nominated accused in the instant case, Jamal Khan PW-14, who narrated the entire story in his own complaint in Police Station Bani Gala, where another FIR No.64/2012, dated 23.08.2012 under sections 324, 148, 149, P.P.C., Police Station Bani Gala, Islamabad was registered and referred as Ex.PX, which is reproduced as under:-
The Investigation Officers, Munawar Ahmed, Inspector PW-11, Ch. Javed S.I./I.O. PW-23, and Bashir, Inspector PW-24 carried out the investigation in different intervals of time and submitted the final Challan under section 173, Cr.P.C. by declaring Mehmood Azam, Haider Mehmood, Chaudhry Usman, Naeem Afridi and Saif Ullah as accused in this case, whereby Naeem Afridi and Saif Ullah remain absconders and declared P.O. by the Court and they have not been arrested till date. Learned Trial Court after recording of entire evidence of 24 PWs and 08 DWs, convicted the appellants with above mentioned sentence. 5. Being aggrieved, the appellants have assailed the said judgment before this Court, whereas complainant Muhammad Anar filed the Criminal Revision No.75/2016 in the same case for enhancement of punishment to the appellants as well as claimed sentence of "attempt to sodomy", in which all three appellants have not been charged. 6. Learned counsel for appellants mainly argued that the entire incident is based upon the testimony of Jamal Khan who claims to be an injured witness in connected FIR No.64/2012, dated 23.08.2012, under sections 324, 148, 149, P.P.C., Police Station Bani Gala, Islamabad but his medical testimony has not been brought on record nor even the Doctor, who examined the said witness has been produced; that, place of occurrence has not been proved by the prosecution, even there is no evidence on record to establish that the incident of murder took place at Quarter No.140-A, Gali No. 61, G-6/1-2, Islamabad as no blood stained earth has been recovered from the said quarter, even there is no other direct evidence to prove that deceased Kashif Anar was murdered in the said place; that, recovery of pistol P-15 and fire empties have no significance, when alleged weapon of offence has not been sent to Forensic Science Laboratory and there is no evidence on record that the said pistol has been used in 02 different incidents; that the prosecution in order to strengthen their case, involved Haider Mehmood in the alleged incident, although he was not nominated at the initial stage by complainant Muhammad Anar; that the PWs have made different improvements and contradictions to the entire evidence and there is no iota of evidence against Haider Mehmood; that, the entire case hinges on the ocular account of solitary witness Jamal Khan PW-14, which is not corroborated from any independent piece of evidence due to the fact that his own case has not been proved till date and his presence is doubtful; that the element of sodomy as alleged by PW-14 has not been substantiated from any source. It has further been contended that, element of section 365, P.P.C. did not attract in the present case as from the testimony of complainant and other witnesses, who have only claimed to be the last seen witness, does not allege any element of abduction. Lastly, learned counsel for appellants argued that the Investigating Officer has converted PW-14 accused in the instant case as witness, which otherwise weakens the prosecution case, furthermore, no blood was detected on the piece of carpet which was taken into possession vide recovery memo Ex.PHH, and the same has been confirmed through Forensic Science Laboratory report. 7. Conversely, learned counsel for complainant as well as learned State Counsel argued that the prosecution has successfully proved the entire case beyond any reasonable doubt; that PW-14 Jamal Khan is the most natural witness, who is an injured and eye-witness of the entire occurrence, that he also lodged his own criminal case FIR No.64/2012, in Police Station Bani Gala, Islamabad, where he narrated the entire alleged incident and the FIR was exhibited by the prosecution as Ex.PX, therefore, there is no requirement to prove any other thing. Learned counsel for complainant further argued that PW-14 has not been discredited by any discrepancy in his evidence as the details submitted by him have duly been corroborated by evidence of last seen witness as well as witness of "Wajtakar"; that the pistol P-15 was recovered from accused Ch. Usman Mehmood and even two fire empties, Sikka (Slug) and piece of carpet (P-5, P-6 and P-7) have been recovered from the place of incident and corroborated through independent evidence of Nasar Ullah, Head Constable and Khawar Zaman Constable in Ex.PJ. Learned counsel for complainant further argued that learned trial Court has not appreciated the evidence of sections 377/511, P.P.C. without any reason although the testimony of PW-14 Jamal Khan is clear in this regard, who stated before the Court that two accused aimed pistols at him and deceased Kashif Anar, and asked others to commit sodomy, whereas other two accused referred in the FIR have got hold of Jamal Khan and deceased Kashif Anar, which is sufficient to prove the offence under sections 377/511, P.P.C.; that all the appellants are held jointly liable for the murder of Kashif Anar and the same has been proved beyond any reasonable doubt but the learned trial Court has only awarded life imprisonment instead of death sentence. 8. Arguments heard, record perused. 9. From the perusal of record, it has been observed that complainant Muhammad Anar PW-1 lodged FIR No.358, dated 22.08.2012, under section 365, P.P.C., Police Station Aabpara, Islamabad, for the abduction of his son Kashif Anar, who was allegedly gone with Jamal Khan, Chaudhry Usman, Saif Ullah, Naeem Afridi and Mehmood Khan on the day of Eid. PW-1 Muhammad Anar being father of deceased Kashif Anar stated before the Court that all five accused, including present appellants, came to his house, when he was talking with his cousins Zafar Iqbal and Shafiq Ahmed (guests) outside his house, all five accused persons asked his son Kashif Anar to accompany them. 10. PW-1 further stated that on the same day, when his son did not turn up, he contacted all the present appellants and two absconded accused, but they were not present in their houses and due to said suspicion, he lodged the instant criminal case. Complainant Muhammad Anar was cross-examined at length, he stated before the Court that he submitted his complaint Ex.PE and on his complaint FIR Ex.PE/1 has been lodged, he was called by Police Station Aabpara, when the dead body of his son was recovered from area of street No.57, Sector G-6/4. The dead body of his son was wrapped in bedding (bistarband), he identified the dead body through memo of identification Ex.PC and later on recorded his supplementary statement to Shakil Ahmad ASI, he himself relied upon the statement of Jamal Khan PW-14, who got lodged FIR No.64/2012 registered at Police Station Bani Gala, Islamabad, in which he alleged that Ch. Usman Mehmood and Naeem Afridi murdered his son by firing through .30 bore pistol where Saif Ullah, Mehmood Khan and Haider Mehmood were also present, the complainant PW-1 Muhammad Anar further alleged in his testimony that all the accused persons wanted to commit sexual intercourse with his son and on refusal, Ch. Usman Mehmood and Naeem Afridi murdered him through firing and later on, dead body was wrapped in a bedding (bistarband) and thrown in Jungle area of Sector G-6/4 through a vehicle. 11. The dead body was sent to Federal Government Polyclinic Hospital for the purpose of autopsy, where Doctor Tanveer Afsar Malik, C.M.O. PW-22 completed the autopsy and submitted autopsy report Ex-P22. Doctor Tanveer Afsar Malik stated before the Court that he conducted the postmortem of Kashif Anar son of Muhammad Anar, aged about 16 years, male, R/o House No.440/A, St. No.71, Sector G-6-1/1 Islamabad, which was brought by Muhammad Younis S.I. Police Station, Aabpara and during the course of his examination, he observed the following:- "EXTERNAL APPEARANCE. A young boy wearing shirt blue color, T-Shirt printed sticker, white bunyan, mustered color underwear, trouser black color, closed eyes and mouth, froth coming out from the mouth. Rigor mortis was fully developed and there is postmortem lividity underneath chest and buttocks; ON EXTERNAL POST-MOERTEM EXAMINATION Injury No.1 firearm entry wound on the front of the left side of the chest 3.cm lateral of sternum and is in the fourth left intercostals space and with charring marks, wound is 7 cm, super medial to the left nipple. Wound measuring 1/1 cm. Injury No.2. Fire arm exact wound on the back of the left side of the chest, 1 cm lettral to 7 thoracic vertebra measuring 0.5 cm into 0.5 cm. Both wounds are correspondence with holes in the shirt, bunyan and T-Shirt. Cranium and spinal cord Scalp and vertebra membranes, brain spinal cord, were found healthy. THORAX Walls, ribs and cartilages, ruptured ribs and cartilages were found healthy. PLEURA Left ruptured and contains 1.5 litter of plotted and unploated blood, right pleurae healthy, left lung ruptured blood vessel ruptured. Larynx and trachea, right lung pericardium and head were found healthy. Abdomen Walls, peritoneum, mouth pharynx, esophagus, diaphragm, pancreas, liver, spleen, kidneys were found healthy. Stomach and its contents gestec contents present semi digested otherwise healthy, small intestine and their contents semi digest otherwise healthy, large intestine and their contents contains fecal metter of yellowish color, bladder empty and healthy, organs of generation external and internal were found healthy three anal swab taken for reduction of semen if any. Missal, bones and joined, were found healthy. Opinion: Deceased sustained fire arm injury over the left side of the chest through and through causing ruptured of left lung and main blood vessel of the lung leading to hemorrhagic shock causing death of the deceased. All the injuries are ante mortem a nature and are sufficient to cause death in ordinary course of life. Probable time between injury and death; 3 to 7 minutes Probable time death and postmortem 15 to 16 hours Postmortem report including pictorial diagram is in my hand writing and signed by me as Ex.P22, and my signature on the Postmortem report including pictorial diagram is Ex.P22/1. PW-22 also treated Ch. Usman (accused/ appellants) with history of road side accident as he suffered with injury (deformity right knee) on 23.08.2012, the medical report of appellant Ch. Usman has been referred as Ex.P-23, however, the opinion of the Doctor is as under:- MLC Report; 23.08.2012 at 5.25 p.m. Ch. Usman Son of Ch. Taj Mehmood aged 32 years male R/o 43/-A, St No.61, G-6-1/2, Islamabad brought to emergency polyclinic hospital with the history of road side accident by Police Station Aabpara with the complaint of plain, swelling deformity right knee one day. No history of loss of consciousness, GCS 15/15 on local examination right leg within (Knee flexes) bruising over the right knee. Local tenderness++movement very painful, distal Nauru vascular intact. Advised X-ray right knee, femur and chest report given by the radiologist, communicated, fracture seen through the distal shaft of femur. No bone injury seen through Thoracic cage operation distal femur plating applied by the orthopedic surgeon. Patient admitted 23.08.2012 and discharged 10.09.2012. Nature of injury 337-G, P.P.C. and kind of weapon road side accident, MLC report No.2322 handed over to police Munir Raza 417/LHC dated 16.01.2013. MLC report is Ex-P23 which bears my signature as Ex-P23/1. PW-22 also conducted the potency test of appellant Usman Mehmood referred as ExP-24. However, during the course of cross-examination of PW-22, nothing adverse or favorable has been brought on record by the appellants or the prosecution. 12. As per prosecution story, three witnesses, Zafar Iqbal PW-2, Shafiq Ahmed PW-4 and complainant Muhammad Anar, have been produced as witness of last seen, whereas complainant again appeared as PW-3 before the learned Trial Court, in which he categorically stated that; "We were standing in the street at gate and were busy in discussion and in the meantime Jamal Khan, Naeem Afridi, Ch. Usman, Saifullah and Mahmood Khan came, greeted me and my son and took him for excursion with themselves. Haider Mahmood was standing in the street." PW-3, in his testimony, has specifically alleged the role, which is as under:- "As per statement of Jamal Khan recorded in case FIR No.64/2012 registered at Police Station Bani Gala, Naeem Afridi and Ch. Usman have murdered my son by firing with 30 bore pistol with whom Saifullah, Mahmood Khan and Haider Mahmood were also present. The above accused persons wanted to commit sexual intercourse with my son on whose refusal; Naeem Afridi and Ch. Usman have murdered my son by firing." During the cross-examination, PW-3 admitted that he involved Jamal Khan PW-14 as accused in the instant FIR, even though he was aware that Jamal Khan got recorded his own criminal case FIR No.64/2012. 13. The other witnesses of last seen are Zafar Iqbal PW-2 and Shafiq Ahmad PW-4, during the course of cross-examination, referred all the appellants and absconded accused in their examination-in-chief but they only referred Jamal Khan, Usman Mehmood, Naeem Afridi, Saifullah and Mahmood Azam, who took Kashif Anar with them, but they separately stated that Haider Mehmood was also present at the corner of street. During the course of cross-examination, PW-4 Shafiq Ahmad admitted before the Court that he has not identified any of the accused in jail nor identified them at Police Station and he admitted that he never expressed the attributes of the accused rather, he identified accused Haider Mehmood and Usman Mehmood present in the Court, who introduced themselves one by one. 14. Learned trial Court recorded the testimony of Muhammad Hayat PW-7 as witness of Wajtakar, who stated before the Court that on 22.08.2012 at about 05:00 PM, he went to Sector G-6/1-2 , Street No.61 to meet his friend Chaudhry Muhammad Jameel. When he saw Kashif Anar along with Ch. Usman and five other boys, who were speaking Pashto however, he identified Ch. Usman and Haider Mehmood amongst them though, during the cross-examination, he was confronted with his own statement that whether he has mentioned the name of Haider Mehmood and others standing there, whereupon, it has been admitted by him that fact of standing of all five accused at the same time, has not been mentioned in his statement under section 161, Cr.P.C. PW-7 has also admitted the fact that he has not mentioned about the features, age and the colour of clothes of the five accused persons. In essence, the above referred witness has only admitted before the Court that he is witness of last seen, and he has not referred the details of the address of the house, where deceased was murdered, and only stated that he saw Kashif Anar entering in a house next to his friend's house, i.e. Ch. Jameel. Besides the testimony of PW-7, all other witnesses of last seen are not only police officials but they are related to complainant Muhammad Anar PW-1 (PW-3) and they have recorded their testimonies with reference to their private relationship with complainant Muhammad Anar as they were not performing their official duties at the relevant time, however, it has been settled through numerous judgments of the superior Courts that the evidence of last seen has a corroborative value if other evidence connects the accused with the commission…
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