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Petitioner: MUHAMMAD WASIF KHAN and others VS Respondent: THE STATE and others
Court Name: Lahore High Court Judge(s): Sardar Tariq Masood, Sheikh Najam ul Hassan Title: MUHAMMAD WASIF KHAN and others vs THE STATE and others Case No.: Criminal Appeals Nos. 1785, 1956 and Criminal Revision No, 998 of 2009 Date of Judgment:2010-11-03 Reported As: 2011 P Cr. L J 470 Result: Accused acquitted.
JUDGMENT
JUDGMENT SARDAR TARIQ MASOOD, J.---Muhammad Wasif Khan son of Muhammad Ashraf Khan appellant along with Muhammad Ashraf Khan was tried by the learned Additional Sessions Judge, Daska in case F.I.R. No, 237 dated 5-8-2003 under sections 302/324/427/148/149, P.P.C. registered at Police Station Saddar Daska District Sialkot. The learned trial. Judge vide judgment dated 22-10-2009 convicted appellant Muhammad Wasif Khan under section 302(b), P.P.C. and sentenced him to life imprisonment on two counts as Ta'zir. He was further directed to pay compensation of Rs,50,000 on each count -under section 544-A, Cr.P.C. to the legal heirs of the deceased persons. In case of default, appellant was directed to further undergo, S.I. for six months on each count. However, he was acquitted of the charge under sections 324 and 427, P.P.C. Co-accused Muhammad Ashraf was acquitted vide the same judgment. ' Muhammad Wasif appellant has filed Criminal Appeal No, 1785 of 2009 against his conviction and sentence whereas, Imran Khan complainant has filed a Criminal Appeal No,1956 of 2009 against acquittal of Muhammad Ashraf co-accused of the appellant. The complainant has also filed Criminal Revision No,998 of 2009 for enhancement of sentence of Muhammad Wasif from imprisonment for life to the capital punishment. We propose to dispose of all these matters through this single judgment. 3. The prosecution story in brief as unfolded in the F.I.R. (Exh.PA/1) is that on 5-8-2003 at about 1-00 p.m. the complainant along with his father Khanzada Muhammad Akram Khan, brothers Sajjid Khan, Zahid Khan and servant Rana Muhammad Asif came to their Haveli for going to Sialkot. Sajid Khan, brother of the complainant, took out Suzuki car from garage. Khanzada Muhammad Akram Khan, Zahid Khan and Rana Asif boarded the car whereas the complainant had taken a turn for
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going home when all of a sudden from adjoining street Wasif Khan appellant, Nasir Khan, Muhammad Ashraf Khan, Zahoor Khan, Amjad Khan and Zahid Khan co-accused, along with three unknown persons armed with fire arm weapons came there. Muhammad Ashraf Khan, co-accused raised lalkara that Khanzada Muhammad Akram Khan etc. be killed and lit fired at Sajid Khan which hit on left side of his chest. Wasif Khan appellant fired with his fire-arm which hit Sajid Khan on his abdomen. Nasir Khan co-accused fired a burst which hit Khanzada Muhammad Akram Khan on his head. Amjad Khan, co-accused fired 4/5 fire shots, which hit. Rana Muhammad Asif on different parts of his body. Zahoor Khan co-accused fired with his weapon which hit Zahid Khan on his left foot. Zahid Khan, co-accused and three unknown persons continuously made aerial firing and thereafter accused persons while firing in air fled away from the spot. Khanzada Muhammad Akram Khan, father of the complainant succumbed to the injuries at the spot. Zahid Khan, Sajid Khan and Rana Muhammad Asif were shifted to Civil Hospital, Daska. On reaching the hospital Sajid Khan succumbed to the injuries. 4. Upon the completion of investigation, the challan was submitted before the learned trial Court where the prosecution produced fifteen witnesses to prove the charge against the appellant and his co-accused:-- ' P.W.1 Imran Khan is the complainant of this case who supported the F.I.R. Exh. PA/1. ' P.W.2 Zahid Khan is the injured eye-witness of this case. ' P.W.3 Muhammad Asif is another injured eye-witness of this case. ' P.W.4 Zaheer-ud-Din stated that on 5-8-2003 blood stained earth, empties and Suzuki car were taken into possession vide Memos. Exhs. PB, PC and Exh. PD respectively. He further stated that on 13-5-2004 Nasir co-accused led to the recovery of Kalashnikov P.2 from his Dera along with 20 live bullets P.3/1-20. ' P.W.5 Dr. Muhammad Azam conducted the post mortem examination upon the dead body of Akram Khan on 5-8-2003 at 11-00 p.m. and found nine fire arm injuries on his person. In his opinion, death occurred due to excessive external and internal bleeding, which resulted in severe shock and injury to vital organ (brain). Injury No,1 and injury No,9 individually and others collectively were sufficient to cause death in the ordinary course of nature. All the injuries were ante mortem homicidal and were caused by fire-arm. Probable time that elapsed between injuries and death was immediate and between death and autopsy was about 7 to 11 hours. ' On the same day i.e, 5-8-2003 at 11-30 p.m. he also conducted the autopsy on the dead body of Sajid Khan deceased and found three fire arm wounds on his person. In his opinion, death occurred due to severe external and internal haemorrhage and injury to vital organ "lungs" which caused cardio respiratory failure and death. Injury Nos.1 and 2 individually and collectively can cause death in ordinary course of nature. All the injuries were ante mortem homicidal and were caused by fire arm. Probable time that elapsed between injuries and death was immediately (about one hour) and between death and autopsy was about 7 to 11-1/2 hours. ' P.W.6 Amanat Ali constable stated that on 10-4-2003 SHO handed over to him warrants of arrest of Ashraf Khan, Nasir Khan, Wasif Khan, Zahoor Khan and Zahid Khan but he failed to arrest them. He also completed proceeding regarding proclamations of above mentioned accused. ' P.W.7 Dr. Abdul Wahab medically examined Sajid Khan on 5-8-2003 at 1-30 p.m. and found three fire arm wounds on his person. On the same day, he also medically examined Rana Muhammad Asif and found 7 fire-arm wounds on his person. On 6-8-2003 he also medically examined Zahid Khan and found two fire-arm wounds on his person. ' P.W.8 Sarfraz Ahmad constable stated that he escorted the dead body of Akram Khan for autopsy. He also got medically examined Rana Muhammad Asif, Sajjad Khan and Zahid Khan. After autopsy and medical examination, the doctor handed over to him the last worn clothes of the deceased. ' P.W.9 Fazal-ur-Rehman SI stated that on receipt of complaint Exh. PA he recorded the formal F.I.R.
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Exh.PA/1. ' P.W.10 Tahir Tasleem Draftsman stated that he prepared the scaled site plan Exh.PQ and Exh.PQ/1 on the direction of the police and the pointation of the P. Ws. ' P.W.11 Muhammad Arshad constable stated that he escorted the dead body of Sajid Khan deceased for autopsy. After autopsy, the doctor handed over to him the last worn clothes of the deceased. ' P.W.12 Mehdi Hussain constable stated that on 10-8-2006, Wasif Khan accused while in police custody led to the recovery of Kalashnikov P.9 and five live bullets P.10/1-5. ' P.W.13 afar Saeed stated that he identified the dead body of Muhammad Akram deceased at the time of autopsy. ' P.W.14 Zulfiqar Inspector is the Investigating Officer of this case who completed the investigation and submitted the challan. ' P.W.15 Ghulam Murtaza DSP is the Investigating Officer of this case who partly investigated this case. ' Learned DDPP gave up Muhammad Iqbal constable, Ehsan alias Usman Butt, Arshad Khan alias Rashad Khan, Amjad Khan, Muhammad Arshad HC, Amjad Pervaiz, Shafaqat Ali and Shehzad Khan PWs and tendered in evidence reports of Chemical Examiner Exh. PR, Exh.PR/1, reports of Serologist Exh. PS and Exh.PS/1 and report of FSL Exh. PT and closed the prosecution evidence. 5. The learned trial Court also examined the appellant and his co-accused under section 342, Cr.P.C. The appellant while answering to question "Why this case against you and why the P.Ws. deposed against you? made the following reply:-- "I am innocent and has been falsely involved in this case by Imran complainant of this case in collusion with the investigating officer. In fact the P.Ws. have not seen the occurrence. Akram Khan deceased had enmity with many persons of the area. He was also suspected to have murdered his own wife Firdous Begum, mother of the complainant, hence, the enemies of Akram Khan might have murdered him and his son Sajid Khan. About three months prior to the occurrence, complainant Imran Khan, Zahid Khan/P.W., Rana Asif/P.W., Zaheer Ahmad/P.W. and others have set on ablaze our house. Thereafter, we had left the village Adamke. In this respect, the case F.I.R. No,129 of 2003 was got registered on 8-5-2003 at Police Station Saddar, Daska by my father against complainant and P.Ws. for offences under sections 436/452/427, 337-H2, 148, 149, P.P.C. Due to this grudge, the complainant and P.Ws. have involved my father, myself, my brother Nasir Khan (since convicted), my brothers-in-law (Behnois) Amjad Khan, Zahoor Khan and Zahid Khan (since acquitted), falsely in this murder case. The complainant and P.Ws. have given false statements regarding our involvement in this case." ' The appellant did not make statement under section 340(2), Cr.P.C. However, he produced certain documents in his defence. 6. Learned counsel for the appellant contends that in the F.I.R. no motive was given. Even the witnesses while appearing in the court did not mention the motive part of the occurrence. Actually the complainant side tried to suppress the motive which was the reason for false implication of the appellant and his co-accused and the motive was brought by the appellant side. P.W.2 admitted that prior to the occurrence, he had put the house of Ashraf Khan, the father of the appellant on fire regarding which F.I.R. was registered against the complainant party. Further contends that all the three witnesses have made dishonest improvement for the first time during the trial to bring the occular account in line with the medical evidence and they were duly confronted with their previous statements made before the police; that the statement of injured witness Rana Muhammad Asif (P.W.3) was recorded after 21 days of the occurrence; that the injuries on the person of witnesses were attributed to the co-accused who were acquitted by the trial court and no appeal has been filed against the acquittal of those persons. Further argued that the F.I.R. was
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the result of consultation and deliberation as according to the investigating officer, he recorded the statement of Imran Khan at 2.30 at the spot whereas the injured witnesses were medically examined at 1.30 in the hospital through police; that the postmortem was conducted at 11-00 p.m. i.e, after 10 hours of the occurrence; that Zahid Khan (P.W.2) was medically examined on 6-8-2003 and this delay in conducting the medical examination makes his injuries dubious and doubtful; that according to the prosecution case, the deceased persons and witnesses received injuries while sitting in the vehicle and medical evidence indicates that the said injuries cannot be sustained while sitting in the vehicle; that the recovery is inconsequential as there is no positive report of Forensic Science Laboratory regarding the weapons allegedly recovered from the appellant; that the evidence of the ocular account was disbelieved by the learned trial Court to the extent of acquitted accused persons. 7. On the other hand, learned Deputy Prosecutor-General assisted by the learned counsel for the complainant contends that the occurrence took place in broad day light out side the house of the deceased; that Wasif Khan appellant was the nephew of deceased Muhammad Akram and was specifically named in the F.I.R. with specific role of causing injury to the deceased Sajid Khan on his abdomen; that the F.I.R. in this case was chalked out after the medical examination promptly; that the Kalashnikov was recovered on the pointation of the appellant and the same supported the prosecution case, although there is no positive report of fire-arm expert; that the witnesses are injured and their presence cannot be doubted; that the appellant remained fugitive from law and thereafter he was arrested on 6-8-2006; that in this case two persons were murdered and Zahid Khan (P.W.2) and Rana Muhammad Asif (P.W.3) received firearm injuries in the same occurrence and their Medico-Legal reports coordinate with the time of occurrence; that these witnesses have no motive to falsely implicate the appellant in this case; that although the empties recovered from the place of occurrence were not sent to the Fire Arm Expert but this negligence on the part of the investigating officer should not be considered as a circumstance in favour of the appellant; that the absconsion of the appellant by itself is indicative of his guilt. 8. We have heard the arguments of learned counsel for the parties and have gone through the record. 9. Originally in this case, six persons were nominated along with three unknown persons. Earlier Nasir Khan, Amjad Khan, Zahoor Khan and Zahid Khan were tried and out of them three were acquitted and Nasir Khan was convicted and sentenced to death. The appellant was arrested subsequently on 6-8-2006 and was tried and sentenced as mentioned above. ' According to the prosecution story, the matter was reported to the police at 2-30 p.m. at the spot. In the F.I.R., it is mentioned that the injured Zahid Khan (P.W.2), Rana Muhammad Asif (P.W.3) and Sajid Khan deceased in injured condition were sent to Civil Hospital, Daska. These three persons were medically examined at 1-30 p.m. in the hospital through Sarfraz Ahmad Constable (P.W.8). Surprisingly, the said Sarfraz Ahmad Constable was also in the company of Investigating Officer when he reached at the spot at 2-00 p.m. as admitted by the I.O. The I.O. also admitted during cross examination that he at the spot prepared the injuries statements of injured P.W. On the other hand, the said Sarfraz Ahmad Constable (P.W.8) was getting the injured P.Ws. medically examined in the hospital at 1-30 p.m. The stance of complainant in the F.I.R. is that he sent the injured to the hospital prior to the arrival of police at the spot whereas according to the I.O. he prepared the injuries statement of injured P.Ws. at the spot after 2-00 p.m. whereas they were medically examined by the doctor at 1-30 p.m. Prosecution remained unable to reconcile with this situation. This fact indicates that actually F.I.R. was chalked out after conducting preliminary investigation. According to the Doctor, the said injured witnesses were brought to him at 1-30 p.m. by the police. The prosecution cannot explain if police met the complainant prior to A 1-30 p.m. why the F.I.R. was not chalked out at that time. It appears that F.I.R. was intentionally delayed and was lodged after
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preliminary inquiry and consultation. The Hon'ble Supreme Court in a case titled Iftikhar Hussain and others v. The State (2004 SCMR 1185) held that:-- "F.I.R. being a corner stone of the prosecution case to establish guilt of the accused involved in the crime, has got a very significant role of play. ... Any doubt in lodging of F.I.R. and commencement of investigation gives rise to a benefit in favour of accused--- F.I.R. lodged after conducting an inquiry loses its evidentiary value." ' According to the prosecution story, the F.I.R. was chalked out at 2-30 p.m. but surprisingly the postmortem was conducted at 11-00 p.m. The Doctor has categorically stated that when he received the police papers he started autopsy of the deceased persons. This fact indicate that earlier to that the police papers were not produced before the medical officer. This fact also confirmed that the F.I.R. was chalked out after consultation and deliberation. 10. In this case, according to the prosecution story the fire-shot attributed to Muhammad Ashraf co-accused hit Sajid Khan deceased on his chest whereas the fire shot-attributed to Muhammad Wasif appellant hit at the abdomen of Sajid Khan deceased. The role attributed to Nasir Khan co- accused was that he fired a burst hitting on the head of deceased Muhammad Akram. According to Dr. Muhammad Azam (P. W.5), there was an exit wound on front of chest of Sajid Khan and there was another exit wound on front of mid part of abdomen of Sajid Khan deceased. So solitary injury attributed to Muhammad Wasif appellant was actually a exit would and its entry wound was on the inner aspect of buttock. Likewise, the injury attributed to Muhammad Ashiaf on the chest was also found by the Doctor as an exit wound. In the F.I.R., it is mentioned that burst of Nasir Khan co- accused hit the deceased Muhammad Akram on his head but the postmortem of Muhammad Akram Khan indicates that there are other injuries on the other part of the body of Akram Khan deceased, which were not attributed to any one. All the three witnesses of ocular account for the first time during the trial changed their version and it was stated by these witnesses that fire shot of Ashraf Khan hit Sajid Khan on his back and fire shot by Muhammad Wasif appellant hit Sajid Khan on his buttock. They also improved their version that the burst of Nasir Khan hit other part of body of Muhammad Akram including the head. These three witnesses were confronted with their previous statements where the role attributed to the appellant and his co-accused during trial is not mentioned. These witnesses of ocular account made improvements and alterations in their statements step by step and there is a strong indication that they are not telling the truth. Their testimony is not above board, as the prosecution would like us to consider. The continuous change or improvement in their statements was made with a view to strengthen the prosecution case and to bring their case in line with the medical evidence as described in the postmortem report. Their conduct in making these improvements made them absolutely unreliable witnesses who have no respect for truth and are capable of telling a lie and changing their statements as and when suited them. It is settled maxim that when a witness improves his version to strengthen the prosecution case, his improved statement made subsequently cannot be relied upon as the witness had improved his statement dishonestly, therefore, his credibility becomes doubtful on the well known principle of criminal jurisprudence that improvements once found deliberate and dishonest cast serious doubt on the veracity of such witnesses. 11. In the F.I.R., it was stated that. the deceased and the injured were inside the car when they received firearm injuries. Even in the site plan, it is specifically mentioned at point "A" that Muhammad Akram was injured inside the Suzuki and then fell out side the same. Likewise at point "B", it is specifically mentioned that Sajid Khan deceased was injured in the Suzuki and then ran and fell at point No, B. The injuries on the persons of Sajid Khan and Muhammad Akram deceased cannot be received while sitting in the car because Sajid Khan received one injury on the back of his chest and also received another injury on the inner side of his buttock. Muhammad Akram deceased received injuries on other part of body other than the head. The witnesses in order to
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meet this situation made improvements that the deceased persons received the fire shots when they were out of the Suzuki car. This improvement was also made by the witnesses for the first time during the trial and the same was contradicted by the F.I.R. and the site plan prepared by the prosecution. So this was also an attempt on the part of the witnesses to bring their case in accordance with the medical evidence. As already discussed, the witnesses of occular account made above mentioned improvements in their statements and continuous change and improvement in their statements was made with a view to bring the same in conformity with the medical evidence and in order to fill the lacunas which were left while lodging the F.I.R. It is observed that evidence of these witnesses is not worth of reliance and the testimony of the witnesses containing material improvement is not believable. It is also noted down that these witnesses made improvements and kept on changing their versions as and when it suited them. 12.It is held in the case of Farman Ahmad v. Muhammad Inayat and others (2007 SCMR 1825) that:-- "It is also a settled maxim when a witness improves his version to strengthen the prosecution case, his improved statement subsequently made cannot be relied upon as the witness had improved his statement dishonestly, therefore, his credibility becomes doubtful on the well known principle of criminal jurisprudence that improvements once found deliberate and dishonest cast serious doubt on the veracity of such witnesses." So, it is the settled principle of law that improvements once found deliberate and dishonest cast serious doubt on the veracity of the witnesses and no reliance can, therefore, be placed upon them. Reliance can be placed on case of Syed Saeed Muhammad Shah and another v. The State (1995 SCMR 550), Amir Zaman v. Mahboob and others (1985 SCMR 685), Sher Dil alias Sher Gul and another v. The State (1973 PCr.LJ 802), Alam Khan v. The State 1987 PCr.LJ 1677 and Shahbaz Khan Jakhrani v. Lai Beg Jakhrani and others (1984 SCMR 42). 13.Admittedly, three co-accused Amjad Khan, Zahoor and Zahid Khan, who were brothers-in-law of the appellant Muhammad Wasif were found innocent during investigation and later on acquitted by the trial court. The complainant party did not file any appeal against their acquittal. This fact indicates that the complainant and the injured witnesses have widened the net to involve exaggerated number of persons especially when two kinds of empties were recovered from the place of occurrence. So keeping in view all the above-mentioned circumstances, we are of the considered view, that while exaggerated number of accused, it is possible that the appellant was falsely involved in this case. In these circumstances, it is difficult to ascertain as who is accused and to what extent he is responsible and whether he is responsible for the commission of this offence or not. It has been held by the Hon'ble Supreme Court in case titled Ilahi Bux v. The State (1982 SCMR 57):-- "that no doubt it is indeed possible and even probable that the real culprit was amongst the assailants named by the eyewitnesses but if the prosecution chooses to put up a false version before the court, and the witnesses too, go out of their way to support it and deliberately make palpably false statements, it would only result in the acquittal of the accused and that when the injured witnesses tried to involve exaggerated number of accused and it is difficult to ascertain as to which of the accused is responsible, then all the accused are entitled to benefit of doubt and clean acquittal." 14.In this case, no motive was given in the F.I.R. Even during trial, the witnesses remained silent regarding the motive of the occurrence. It was defence who during cross examination brought on the file that the appellant side had got registered a F.I.R. against the complainant party alleging that Zahid Khan P.W.2 had put the house of Ashraf Khan father of the accused on fire. The learned counsel for the complainant tried to argue that this could be the reason for the murder. We
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observe that this motive was brought from the defence side to show the reason for their false implication. The same was not put forwarded by the prosecution. The prosecution is unable to explain why they conceal this motive and it is apparent that this was the reason for the false involvement of the appellant. 15.The statement of Rana Muhammad Asif (P.W.3) was recorded by the police after 21 days of the occurrence i.e, on 26-8-2003. There is no plausible reason given by the prosecution regarding his delayed statement before the police. Although it had come on the record that after about three days he was discharged from the hospital. The injury on the person of Rana Muhammad Asif is attributed to the acquitted accused person. Likewise, injuries on the person of Zahid Khan is also attributed to the acquitted accused person. The delayed statement of Rana Muhammad Asif (P.W.3) and delayed medical examination of Zahid Khan (P.W.2) creates doubt regarding the prosecution case. The delay in recording the statement of Rana Muhammad Asif (P.W.3) indicates that prior to that he was not willing to support the prosecution version and after 21 days he was forced to make statement before the police and then before the court. The Suzuki car in which the deceased and the injured persons received the injuries was never produced before the court. It is also shrouded why the Suzuki car was without number and why the same was not produced in the court during the trial. In the F.I.R., it is mentioned that Sajid Khan brought the Suzuki car out of the garage but the site plan indicates that…
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