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Petitioner: Muhammad Hassan alias Aamir VS Respondent: The State and others
Court Name: Lahore High Court Judge(s): Muhammad Amjad Rafiq Title: Muhammad Hassan alias Aamir vs The State and others Case No.:Criminal Appeal No. 383-J, Criminal Revision No. 630 and Criminal P.S.L.A.
JUDGMENT
Reported As: 2022 YLR 805 Result: Order accordingly Judgment JUDGMENT MUHAMMAD AMJAD RAFIQ, J.--Muhammad Hassan alias Aamir was tried along with co-accused Ghulam Hussain, Jafar , Aslam, Parveen Kausar , Aamir Shehzad, Mohabat, Ameer , Zakar and Ali Bahadur by the learned Additional Sessions Judge, Faisalabad in a private complaint under sections 302/324/109/148/ 149, P.P.C. (emanating from Case FIR No. 465/201 1 under sections 302/324/ 148/149/109, P.P.C. registered at Police Station Saddar , District Faisalabad). On conclusion of trial, above named nine co-acc used were acquitted, whereas, appellant was convicted and sentenced as under: Imprisonment for life under section 302(b ), P.P.C. for committing Qatl-i-amd of Muhammad Shareef, with payment of compensation of Rs. I ,00,000/- to the legal heirs of the deceased under section 544-A, Cr.P.C. and in default thereof to undergo simple imprisonment for a further period of six months; the benefit of section 382-B, P.P.C. was also extended to him. 2. Above conviction and sentence has been assailed by Muhammad Hassan alias Aamir (hereinafter referred to as the appellant), through Crl. Appeal No. 383-J of 2016. Complainant Muhammad Imran Farooq has filed Criminal Revision for enhancement of sentence of the appellant as well as increase in the compensation amount and Crl. PSLA has been filed challenging the acquittal of respondents Ghulam Hussain, Jafar , Aslam, Parveen Kausar , Aamir Shehzad, Mohabat, Ameer , Zakar and Ali Bahadur . All these matters are being decided through this single judgment. 3. Murder of three persons took the prosecution on heel to chase and fix the criminal liability of actual perpetrator in order to single out from a fully loaded complaint against ten accused, more or less with a role assigned to show their active participation. In order to dig out truth, it is necessary to see what necessitated the complainant to take the charge of case through private prosecution. Investigating agency in FIR case concluded that there is deficient
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evidence against all the accused except. Hassan alias Aamir son of Ahmad Yar, yet complainant Muhammad Imran Farooq (PW-01)/ carried his stance directly to the court with similar aspirations while stating in the Complaint (Exh. PA) that it was evening of 5th May, 2011 when at 6:00 p.m. he along with Muhammad Sharif (father-in-law), Mst. Zainab Bibi (mother-in-law) and Shazia Muqaddas (wife) was present near his house whereas Zafar Iqbal and Haji Khan were also present nearby . In the meantime, Aamir , Ghulam Hussain, Jafar , Aslam, Parveen Kausar and Aamir Shehzad along with two unknown persons armed with pistol 9 mm while riding on three motorcycles came from Gulshan Raheem Colony and shoute d not to spare them. Consequently , all the accused started indiscriminate firing. Fires of Aamir hit Muhammad Sharif on front of his chest, whereas fires of Ghulam Hussain hit Muhammad Sharif on right side of neck, back of right shoulder and left arm. Jafar and Aslam made fires which hit Zainab Bibi on her chest and the fire of Parveen Kausar hit Shazia Muqaddas on the back of her head. Aamir Shahzad was attributed aerial firing and lalkara. One Riffat Bibi passerby also sustained firearm injury on her left foot. Muhammad Sharif and Zainab Bibi succumbed at the spot, whereas Shazia Muqaddas kicked the bucket at Civil Hospital, Faisalabad. The motive behind the occurrence was previous bloodshed. According to complaint on 05.05.201 1 at 05:00 p.m. all the accused hatched the conspiracy outside the house of Aamir Shahzad which was heard by Nazar Hussain and Muhammad Ashraf. The offence was committed by the accused on the instigation and abetment of Mohabat, Ameer , Zakir and Ali Bahadur . 4. The matter was reported to the police on 05.05.201 1 at 07:00 p.m. after an hour of the occurrence, whereas FIR was registered on the same day at 07:20 p.m.; on 06.05.201 1 Lady Doctor Kishwar Naheed (PW-04) conducted postmortem on the dead body of Shazia Muqadas, Dr. Muhammad Naeem (PW-06) conducted autopsy on the dead body of Muhammad Sharif and Lady Doctor Tanveer Zafar (PW-07) conducted postmortem on the dead body of Zainab Bibi. Accused were investigated and police found Ghulam Hussain, Jafar , Aslam, Parveen Kausar , Aamir Shahzad, Mohabat, Ameer , Zakir , and Ali Bahadur as innocent while the appellant was found involved in this case; feeling aggrieved, complainant initiated private prosecution through filing a private complaint against ten nominated accused. 5. After recording cursory statements, trial court summoned all the accused; they were indicted, to which they pleaded non-culpabilis and claimed trial. The prosecution produced 08 PWs and court examined 05 witnesses as CWs. Learned DDPP gave up Haji Khan, Muhammad Ashraf, Umar Draz and Naeem Iqbal, being unnecessary and by tendering in documentary evidence reports of Chemical Examiner (Exh. PQ), of Serologist (Exh. PR) and Report of PFSA (Exh. PS) closed the prosecution evidence. The appellant in his statement recorded under section 342, Cr.P.C. while answering to a question "as to why this case against you and why the PWs deposed against you" deposed that the complainant party deliberately nominated him in this case to put pressure on his co-accused Parveen Kausar to effect compromise in the murder case of Zafar Iqbal husband of Parveen Kausar . On conclusion of the trial, the learned trial court acquitted all the accused except the appella nt vide impugned judgment as mentioned above. Hence, this appeal, revision petition and Crl. P .S.L.A. 6. Learned Counsel for the appellant contends that occurrence took place on 5.5.201 1 at 6.00 p.m. in Chak No. 215 RB, Faisalabad and the matter was reported to the police at 7:20 p.m. with a delay of more than one hour; complainant Imran Farooq has reported the alleged murder of three deceased persons Muhammad Sharif, Zainab Bibi and Shazia Muqaddas and one Riffat also sustained injury during the occurrence but she was not produced by the prosecution. Learned counsel for appellant states that non-production of such injured witness amounts to withholding the evidence; therefore, inference can be drawn against the prosecution as per Article 129(g) of the Qanun-e-Shahadat Order , 1984. Postmo rtem in this case was conducted on the next day at 10.30 am with the delay of more than 16 hours and Dr. Muhammad Naeem (PW-6) observed that duration between death and postmortem is 12 to 25 hours which contradicts the prosecution story . Reliance was placed on "Khalid Mehmood and another v. The State and others" (2021 SCMR 810). Added that empties recovered from the place of occurrence were sent to Punjab Forensic Science Agency before the arrest of the appellant in order to examine the weightage of said pistol recovered from the appellant but the report of Punjab Forensic Science Agency shows non-matching of the crime empties, as such, recovery in this case is inconsequential rather is adverse to the prosecution case. Contends that ten accused were nominated in the FIR, nine out of them were declared innocent
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by the police and later complainant filed a complaint after seven months of the occurrence. The delay in filing private complaint runs counter to the stance of prosecution as taken in the FIR, which amounts to concoction and fabrication. While touching the medical evidence, the learned counsel for appellant states that the role ascribed to the appellant is of making fire shots which hit Muhammad Sharif on his chest, it could be related with injury No. 2-A which is not the cause of death, as according to Dr. Muhammad Naeem (PW-6) who conducted autopsy on the dead body of Muhammad Sharif opined that injuries Nos. 3 and 5 were the cause of death. Similar role of causing fire arm injuries was attributed to Ghulam Hussain, co-accused on the person of Muhammad Sharif deceased, who has been acquitted by the learned trial court. During the spot inspection, blood imbrued earth and 35 bullets were secured. However , no blood-stained earth from the place of injury of Riffat Bibi was collected from the spot nor she was put to medical examination. Learned counsel for the appellant at the end contends that there must not be so many doubts in prosecution case to extend benefit to an accused, rather a single dent is sufficient to destroy and dismantle the prosecution structure and favour must be extended to the appellant . The learned trial court has not followed the principles laid down by the Hon'ble Supreme Court with respect to appreciation of evidence and the learned trial court has adopted pick and choose method without any substantive observation. 7. On the other hand, learned Deputy Prosecutor General assisted by Counsel for the complainant submits that right from the very beginning, all the fingers were pointed out more strongly against Hassan alias Aamir son of Ahmad Yar; though other accused someh ow managed their innocence during investigation and trial court has also extended them favour , yet present appellant remained in grey areas throughout the process until the conclusion of trial. Learned counsel for the complainant states that he has also filed appeal against acquittal of co-accused which is pending in this court. He further alleged that non-appearance of Rifat Bibi is not fatal to the prosecution because she being passerby was not in the contr ol of prosecution; even trial court has not summoned such witness nor defence urged to produce her, which circumstance can also be read against the accused party . Further contends that delay in Post Mortem is not on the part of prosecution because CW-2 Tariq 3339/ HC categorically stated that he received the dead bodies at 7:15 p.m. on 05.05.201 1 and reached Allied Hospi tal at 8:00 p.m. Non-matching of empties with pistol is not of much impo rtance when the shrewdness of the appellant is clear being subject of number of cases registered against each other , knew the tactics, has managed the PFSA report. Even otherwise, recovery has only corroborative value. While referring to the role of appellant, learned counsel contended Injury Nos. 3 and 5 were attributed to the appellant which are the cause of death, wherea s fires of other co-accused is on the neck and not on the chest. Though other accused were declared innocent, yet complainant has not changed his stance in private complaint being dissatisfied with police investigation. 8. Contentions of proponents were heard; record perused. 9. Prosecution chose Muhammad Imran Farooq Complainant PW-1 and Zafar Iqbal PW-2 to lead the ocular account in this case; admittedly it was day light occurrence; identity of accused was not the issue, being tied in a bond of diehard enmity for each other; ten accused split in to three sets who also had enmity inter se, yet engaged in an unnatural bond to eliminate the complainant party; they all were responsible, or the complainant while hitting two birds in one stroke booked them together to ventilate his grievances against all, is the moot point in this case. Out of three dead persons, Muhammad Sharif (deceased) fell in prey of firing by two accused, namely Ghulam Hussain (since acquitted) and Muhammad Hassan alias Aamir , the present appellant. Pistol fires of present appellant hit on the chest of Muhammad Sharif (deceased) while that of Ghulam Hussain en right side of his neck, on the back of right and on the left arm and buttock. Zainab, one of the deceased was targeted by Jaffar and Muhammad Aslam, whereas Shazia Muqadas (deceased) was fired upon by Parveen Kausar accused. Aamir Shahzad resorted to aerial firing. A lay man description of injuries is reflected from Post Mortem report of deceased Muhammad Sharif, brought on record through the statement of PW-6 Dr. Muhammad Naeem; short description is as under; Injury No. 1-A entering 17 cm above right nipple making its exit through injury No. 1-B on the lateral side of neck 8 cm below right ear . Injury No. 2-A entering 8 cm right axilla and 9 cm from right shoulder top exited through injury No. 2-B on the back of right chest 8 cm from right shoulder , fracturing right humorous.
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Injury Nos. 7 A and B lateral side of left upper side I cm below waist line exited by making a hole on left buttock. Above three injuries were attributed to Ghulam Hussain accused, whereas the following three injuries were attributed to Muhammad Hassan alias Aamir (appellant). Injury No. 3 entry on front of lateral side of left chest; one metallic projectile was recovered from the soft tissue of right chest. Injury 4 A and B are also on the front chest and lateral side of left chest respectively . Injury No.5 is on lateral side of left abdomen (wound of entry) one metallic projectile was recovered from the soft tissue of right side of abdomen near liver . Doctor declared Injury Nos. 3 and 5 as cause of death which were attributed to Hassan alias Aamir , the appellant. Doctor has not been cross-examined on any part of his statement which went unchallenged. In the circumstance, at least to the extent of role assigned to the appellant, there is no conflict in ocular and medical evidence which is in line and fully implicates the appellant with this graver charge; particularly , when plea of alibi of co-accused Ghulam Hussain was accepted by investigating of ficer and benefit of doubt was extended by the trial court. 10. Before discussing the evidence of eye-witnesses, it is important to see the presence of Riffat Bibi, a passerby who was also injured but could not appear as witness and defence has seriously objected about her non- appearance so as to push the court to draw an adverse inference. PW-1 states during cross-examination that Zafar PW-2 is son of Zulfiqar; said Zulfiqar and father of Riffat were step brothers whereas father of Riffat and father of complainant are first paternal cousins. He denied the suggestion that Riffat was withheld by the prosecution; however , volunteered that Rif fat had avoided to become party in our enmity . PW-2 Zafar during cross-examination stated that during the whole period of investigation, Riffat Bibi never associated in the investigation nor her statement was recorded. He admitted it as correct that Riffat was present at the spot and had actual knowledge about the occurrence. He volunteered that Riffat Bibi is close relative of both the parties; therefore, she did not opt to join the investigation. CW-1 Muhammad Afzal SI stated during cross- examination that he never tried to join into investigation said Riffat injured. It is clear that Riffat bibi being relative of both the parties did not appear as witnes s; defence was at liberty to call for such witness as DW or CW to shatter the prosecution case. Prosecution was not obliged to put her in the dock because it is quality not the quantity that matters. Honourable Supreme in case reported as 2010 SCMR 949 (Nadeem alias Nanha alias Billa Sher v. State) "Both the eye-witnesses of occurrence were natural witnesses as one of them was independent while the other though not independent, being son of deceased but was eyewitness of occurrence, therefore, their evidence could not be rejected for any fanciful reason as being chance witnesses. Non-examination of third prosecution witness ; Mere non-appearance of any eye-witne ss would not justify adverse inference to the case of prosecution on such account". Even otherwise in criminal trial, court should not rely merely on presumption for non-appearance of witness rather should call him as CW to obtain the direct testimony; Article 129 (g) of Qanun-e-Sh ahadat Order , 1984 is more akin to civil proceedings than to criminal; similar observation has been made in case law reported as under; Allahabad High Court Ram Jeet and others v. The State on 12 December , 1957 Equivalent citations: AIR 1958 All 439, 1958 Cri L.J 716 "No doubt, illustration (g) to Section 114 of the, Evidence Act entitles the Court to presume that evidence which could be and is not produced would, if produced, be unfavourable to the person withholding it. Nevertheless, section 114 notwithstanding for the benefit of subordinate Courts, I should like to stress that in the trial of criminal cases it should not be necessary for them to rely on mere presumptions when the second part of section 540 of the Code obliges them to summon the witness in question, and at least criminal Courts (unlike civil Courts, for the analogous provision of Order XVI, Rule 14 of the Code of Civil Procedure gives the civil Court merely discretionary authority) are not entitled to level the type of criticism just referred to". As observed above, no adverse inference could be drawn due to non-appearance of Rif fat Bibi. 11. One set comprises of three accused persons namely Ghulam Hussain and Ali Bahadar as brothers inter se and Hassan alias Aamir , the appellant as Bhateja (Nephew). PW-1 admitted during cross-examination that rest of the
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accused had no relation with these three accused. He further admitted that in the year 2001, his sister Asia was murdered; Ali Bahadar and Ghulam Huss ain were the accused. In that case Ghulam Hussain was acquitted by the learned trial Court whereas Ali Bahadar was acquitted from this Court. Other two sets, Zakir and Jaffar are real brothers and Mohabat is the father of Kausar accused, Aslam, Ameer and Aamir Shahzad, all are either the witnesses or the accused in cases registered against each other; thus more or less vulnerable to false implication. Defence also tried to detach Hassan alias Aamir (appellant) from his relationship with Ghulam Hussain and Ali Bahadar by putting a suggestion that Ali Bahadar had contracted marriage with mother of the appellant after murder of his father Ahmad yar. Due to which, relations between appellant and Ali Bahadur etc. were strained and appellant was brought up by maternal relations. Ghulam Hussain accused was a police official who successfully managed his plea of alibi which was accepted during investigation and he also earned benefit of doubt during trial. Ali Bahadur being brother of Ghulam Hussain accused is also sailing in the same boat. Apparently these two accused could not join hands with Hassan alias Aamir , the appellant who has also stated in his statement recorded under section 342, Cr .P.C. to the ef fect as under; I had strained relation with my co accused Ghulam Hussain and Ali Bahadar . Ali Bahadar contracted second marriage with my mother Kaneez bibi who was divorced by Ali Bahadar and a case FIR No. 522/ 2002 under sections 10/16 Hadood Zina Ordinance under sections 420/ 468/471, P.P.C., P.S. Sadqare registered against Bandar All etc. (brother of Haji Khan PW of present case) alleging therein that my mother Mst. Kaneez Bibi had developed illicit relations with Bahadar Ali son of Akbar (brother of Haji Khan PW of present case). After that my mother Kaneez Bibi along with me left the village and started to reside at Chiniot and I have no visiting as well as speaking terms with my co-accu sed Ghulam Hussain and Ali Bahadar . Such statement of accused carries weight in the light of judgment reported as 2015 SCMR 423 (Nasir Mehmood v. State) in which it was held as under; "Statement of an accused recorded unde r section 342, Cr. P. C. was more reliable, compared to the statement recorded under ' section 164, Cr . P. C". 12. Motive in the correct sense, is the emotion supposed to have led to the act. The external fact which is sometimes styled the motive, is merely the possible exciting cause of this 'motive' and not identical with the motive itself. Appellant has stated in his statement under section 342, Cr.P.0 that his father was murdered and he had enmity with the complainant party; such statement on his part is indicative of his intention and action for committing murder of Muhammad Sharif deceased on this score. Such statement of accused carries weight in the light of judgment cited supra. Honourable Supreme Court in case reported as 2015 SCMR 258 (Muhammad Arshad v. The State) has held as under; "A motive for the commission of an offence is always considered to be double edged weapon which can cut both the sides. The circumstances which can instigate a person to commit an offence can also be used against him for his false involvement; thus, assessment is to be made from the circumstances of each case to determine as to which side is being cut by the said double edged weapon". Father of appellant was murdered in year 1996 and an FIR 661/96 (Exh. DN) under sections 302/34/109, P.P.C. Police Station Saddar Faisalabad was lodged against Muhammad Sharif (Present deceased) but said Sharif stood acquitted from the trial court. The year when father of the appellant was murdered, he was about 6 years of age; as per evidence, he was brought up by his maternal relations; therefore, it was natural consequence that when he grew up, such loss and deprivation ignited him for retaliation to take revenge of murder of his father . He was in the 21 years of age when he committed this murder as reflected from Birth certificate Ex. DN; Hence, motive against the present appellant is proved in this case. 13. Group of witnesses led by Prosecution for adducing ocular account comprises of PW-1 and PW-2; they reasonably explained their presence at the spot; occurrence took place near the house of complainant; they were residents of nearby vicinity; while replying to a question during cross-examination P.W-2 stated that his residence is at a distance of one acre from the place of occurrence. Defence while putting question to these witnesses ensured his presence at the spot particularly when PW-2 admitted as correct that Riffat bibi who was actual injured person
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was present at the place of occurrence. These two witnesses have no direct enmit y with the appellant, though with other accused somehow or the other a smell of enmity prevails. Prosecution has successfully proved the presence of such witnesses at the spot. Their testim ony was consistent and coherent and they have no axe to grind against the accused'. Matter was promptly reported to the police which ruled out consultation and deliberation. Spontaneity of events were perfectly explained through ocular account with respect to nomination, role, weapons of offence and locale of injuries to three deceased persons. Stance of such witnesses remained intact throughout the process and there were no dishonest improvements in their court statements. Even dead bodies were dispatched to mortuary within an hour of reporting the matter to police. There was no question of mistaken identity as the parties know each other and it was day light occurrence. Defence has not controverted the place of occurrence which was committed in front of complainant's house. 14. Defence tried to dispute the name of accused as Aamir; Suggestions were put to PW-1 that he had not nominated Hassan as accused rather nominated one Aamir and there is no person with the name of Aamir son of Ahmad Yar in the village. This witness replied that nick name of Hassan is Aamir . Even otherwise in the complaint Exh. PB, the name of accused in the caption is written as Muhammad Hassan alias Aamir son of Ahmad Yar. This fact was also confirmed by Muhammad Afzal SI/Investigating Officer (CW-1), who during cross-examination stated that original name of the appellant is Hassan alias Aamir son of Ahmad Yar. Even defence has brought on record birth certificate of appellant showing his father's name as Ahmad Yar. Defence has not challenged his name throughout the process before any forum nor brought any other person with the name of Aamir son of Ahmad Yar or Hassan son of Ahmad Yar alleging that he was not the person who participated in the crime. He also had not advanced any plea of alibi nor appeared in his defence as his own witness nor produced any defence witness. This objection is nothing but a failed attempt to avert the criminal liability . Prosecution on the other hand has successfully established the fact that it was Hassan alias Aamir son of Ahmad Yar, who had committed the crime. 15. Postmortem on dead bodies were though conducted after about 12 hours yet doctor has correctly observed probable time between death and postmortem as of 12-24 hours which is in line with the prosecution story . The Honourable Supreme Court in case law reported as 2020 SCMR 837 (Muhammad Asif v. Mehboob Alam) as under; Another aspect of the case that the postm ortem in this case was delayed by twelve to twenty-four hours was taken into consideration by us in the instant case, one person has lost life, while there are two injured persons, those were evacuated to Mayo Hospital…
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