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Petitioner: MUHAMMAD ASHRAF and others VS Respondent: THE STATE and others
Court Name: Lahore High Court Judge(s): Malik Shahzad Ahmad Khan, Manzoor Ahmad Malik Title: MUHAMMAD ASHRAF and others vs THE STATE and others Case No.:Criminal Appeal No. 290, Criminal Revision No 173 of 2008; PSLA No.17 of
JUDGMENT
Reported As: PLD 2015 Lahore 1 Result: Appeal accepted Judgment JUDGMENT ' MALIK SHAHZAD AHMAD KHAN, J.---This judgment shall dispose of Criminal Appeal No.290 of 2008 filed by Muhammad Ashraf and Muhammad Shafqat (appellants) against their convictions and sentences, Petition for Special Leave to Appeal No.17 of 2008 preferred by Ghulam Sarwar complainant against the acquittal of Saif Ullah and Muhammad Zaman, Criminal Revision No. 173 of 2008 submitted by the complainant Ghulam Sarwar for enhancement of sentence of imprisonment for life to death of Muhammad Shafqat convict and Murder Reference No.34 of 2008, sent by the learned trial Court, for confirmation or otherwise, of the sentence of death awarded to Muhammad Ashraf appellant, as all these matters have arisen out of the same judgment dated 10-3-2008, passed by the learned Additional Sessions Judge, Mandi Bahauddin. 2. Muhammad Ashraf and Muhammad Shafqat appellants were tried in private complaint under sections 302/148/149 of P.P.C. After conclusion of the trial, vide its judgment dated 10-3-2008, the learned trial court acquitted Saif Ullah and Muhammad Zaman co-accused of the appellants, whereas, has convicted and sentenced the appellants as under:-- ' Muhammad Ashraf ' Under section 302(b)/34 of P. P.C. To death for committing Qatli-Amd of Ahmad Khan deceased. He was also ordered to pay Rs.1,00,000 (Rupees one hundred thousand only) as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. Or in default to suffer simple imprisonment for six months. ' Muhammad Shafqat
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' Under section 302/34 of P. P. C. To imprisonment for life as Ta'zir for committing Qatl-i-Amd of Ahmad Khan deceased. He was also ordered to pay Rs. 1,00,000 (Rupees One Hundred Thousand only) as compensation to the legal heirs of the deceased under section 544-A Cr. P. C. Or in default to suffer simple imprisonment for six months. ' The benefit of section 382-B, Cr. P. C. Was also extended to the appellant. 3. Brief facts of the case as given by the complainant, namely, Ghulam Sarwar (P.W.3) in his private complaint Exh. PA are the same which were given by him in the F.I.R. Lodged by him. According to the facts as given in the complaint Exh. PA, on 4-2-2006, he (complainant) along with Nisar Ahmad "behnoi" (given up P.W.), Haji Muhammad Asghar (P.W.4) "phophizad" and his father Ahmad Khan (deceased) was coming back from village Charanwala to their own village after inquiring the health of one Chaudhry Nawaz and at about 3-00 p.m., when they reached at the katcha path at a distance of two acres away from the Dera of Mehdi Khan, the complainant Ghulam Sarwar (P.W.3), Nisar Ahmad (given up P.W.) and Haji Muhammad Asghar (P.W.4) stopped at the cattle-shed of above said Mehdi Khan in order to see his cow, whereas, Ahmad Khan (deceased) '(father of the complainant) went ahead at some paces. In the meanwhile, Muhammad Ashraf and Muhammad Shafqat appellants, Abdul Sattar accused (since P.O.), Saif and Muhammad Zaman accused (both since acquitted) armed with Kalashnikoves, came out from the cluster of trees from the western side of katcha path and encircled Ahmad Khan (deceased). Muhammad Ashraf appellant raised lalkara that Ahmad Khan (deceased) be taught a lesson for fracturing his legs and he be not let alive and, thereafter, Muhammad Ashraf appellant made a burst of fires with his Kalashnikov which hit on the chest, belly and lower side of abdomen of Ahmad Khan (deceased), who fell down, facing downwards. Muhammad Shafqat appellant, Abdul Sattar accused (since PO), Saif Ullah and Muhammad Zaman accused (both since acquitted) then made a burst of fires with their respective weapons on the person of Ahmad Khan (deceased) which hit on his waist, left buttock, left flank, left shoulder and on his back. The complainant along with Nisar Ahmad (given up P.W.) and Haji Muhammad Asghar (P.W.4) witnessed the occurrence but due to fear did not go near them. The appellants along with their co-accused after being satisfied that Ahmad Khan had died, decamped from the place of occurrence. After their departure, the complainant along with P.Ws. Attended to Ahmad Khan (deceased) who succumbed to the injuries at the spot. ' The motive behind the occurrence as set forth in the F.I.R., as well as, in the private complaint was, the previous litigation between the deceased and the accused persons. 4. The matter was reported to the police by the complainant Ghulam Sarwar (P.W.3) through his Fard Bayan Exh. PC, whereupon, the formal F.I.R. Was chalked out. 5. The appellants Muhammad Ashraf and Muhammad Shafqat were, arrested on 24-4-2006 by Bahu Khan, SI (CW-1). After completion of investigation, the challan was prepared and submitted before the learned trial court. The appellants and their aforementioned co-accused were declared innocent by the police during investigation. The complainant Ghulam Sarwar (P.W.3) being dissatisfied with the police investigation filed a private complaint in the concerned court in which he alleged that the local police being in league with the above mentioned culprits had illegally declared them innocent. ' The learned trial court, after recording preliminary evidence summoned Muhammad Ashraf, Muhammad Shafqat (appellants), Saif Ullah and Muhammad Zaman co-accused (since acquitted). The learned trial court, after observing legal formalities, as provided under the Code of Criminal Procedure, 1898 framed charge against the appellants and their co-accused on 29-11- 2006, to which they pleaded not guilty and claimed trial. 6. In order to prove its case, the prosecution produced seven witnesses while two witnesses namely Bahu Khan, S.I. And Munawar Hussain, S.I. Were recorded as Court Witnesses, during the trial.
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Ghulam Sarwar complainant (P.W.3) and Muhammad Asghar (P.W.4) are the witnesses of ocular account of the occurrence. ' The medical evidence was furnished by Dr. Ghulam Abbas Nasir (P.W.1). ' Bahu Khan, S.I. (CW-1) and Munawar Hussain (CW-2) were the Investigating Officers of this case. ' Imtiaz Ahmad Patwari (P.W.2), Ghulam Fareed (P.W.5), Zaghum Abbas No. 448/MHC (P.W.6) and Muhammad Mansha No.580/C (P.W.7) are the formal witnesses. ' The prosecution produced documentary evidence in the shape of copy of private complaint and post mortem report of the deceased, both exhibited as Exh.PA, pictorial diagram Exh. PA/1, scaled site plan of the place of occurrence in triplicate Exh.PB, Exh. PB/1 and Exh. PB/2, copy of complaint Exh. PC, memo of possession of blood stained earth Exh.PE, memo of possession of last worn clothes of the deceased Exh.PF, rough site plan of the place of occurrence Exh.CW/2 and closed its evidence. 7. The statements of the appellants and their co-accused under section 342, Cr.P.C. Were recorded. They refuted the allegations levelled against them and professed their innocence. While answering to a question that "Why this case against you and why the P.Ws. Have deposed against you" the appellants replied as under:- ' Muhammad Ashraf "I am innocent. I have been falsely involved in this case due to previous enmity and on the basis of suspicion. The P. Ws. Are inimical towards me and have deposed against me falsely. ' The appellant Muhammad Shafqat while answering to the above-mentioned question gave the same answer as given by Muhammad Ashraf appellant. Neither the appellants opted to make statements under section 340(2), Cr.P.C. Nor they produced any evidence in their defence. ' The learned trial Court vide its judgment dated 10-3-2008, while acquitting co-accused Saif Ullah and Muhammad Zaman, found Muhammad Ashraf and Muhammad Shafqat appellants guilty and convicted and sentenced them as mentioned and detailed above. 8. Learned counsel for Muhammad Ashraf appellant, in support of this appeal, contends that the appellant has falsely been implicated in this case; that both the eye-witnesses of ocular account are chance witnesses and they have not been able to give any valid reason for their presence at the spot and moreover the matter was not reported to the police at the time mentioned in the F.I.R., which is clear from the fact that the doctor (P.W.1) who conducted the post-mortem examination on the dead body of the deceased had admitted in his cross-examination that the dead body was brought in the mortuary at 11-00 p.m. Which clearly negates the evidence of the witnesses of ocular account because had they been present at the spot, the dead body would have reached to the hospital much earlier than the time mentioned above; that in the F.I.R. And private complaint it was the case of the complainant that firstly fire shots were made by Muhammad Ashraf appellant which hit the deceased at his chest, abdomen and different parts of his body and thereafter Saif and Abdul Sattar accused along with two unknown persons also fired at the deceased which hit him on his back, left flank, left shoulder and back and the same stance was taken in the private complaint which was instituted on 28-7-2006 but while appearing before the court, the complainant changed his version qua the injury caused by the co-accused of the appellant and stated that Muhammad Shafqat appellant fired with his respective weapon which hit Ahmad Khan deceased on his belly, then Sattar accused fired with Kalashnikov which hit on his chest; then Saif accused fired with his respective weapon which hit Ahmad Khan on his chest and then Zaman accused fired with his weapon which hit on the belly of Ahmad Khan deceased and thus, the version was changed/improved by the complainant in order to bring his evidence in line with the medical evidence; that the complainant was duly confronted with his previous statements, i.e. Contents of the F.I.R. And his cursory statement recorded after filing of the private complaint and dishonest improvements in his statement were brought on the record; that in the F.I.R. Only three
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accused persons were mentioned by name, i.e. Muhammad Ashraf, Muhammad Shafqat (appellants) and Abdul Sattar (since PO) but the private complaint was filed against five persons namely Muhammad Ashraf, Muhammad Shafqat (appellants), Saif Ullah, Muhammad Zaman accused (since acquitted) and Abdul Sattar (since PO) and in his cross-examination, the complainant has stated that in his Fard Bayan Exh. DA he mentioned the name of Saif Ullah and Muhammad Zaman, he was confronted with his Fard Bayan where it was not so recorded. He further admitted that the above mentioned accused persons are residents of his village and known to him (complainant) but even then they were not named by him in the F.I.R. Which clearly established mala fide of the complainant; that the motive alleged in the, F.I.R. And in the private complaint was previous litigation between the appellant and the deceased, however, while appearing before the learned trial court the complainant alleged the motive to the effect that the deceased divorced the sister of Muhammad Ashraf appellant and that Muhammad Ashraf appellant was earlier injured by them but in cross-examination he admitted that sister of Muhammad Ashraf appellant was divorced 20 years back and thereafter the deceased contracted another marriage with Mst. Riaz Bibi who too was dead and in this situation the motive appears to be highly improbable; that the complainant has admitted that his father was not the accused in the earlier hurt case, therefore, there was no reason or occasion for Muhammad Ashraf appellant to kill the deceased; that even otherwise the question regarding the marriage of the sister of the appellant and her divorce by the deceased was not put to the appellant while recording his statement under section 342, Cr.P.C. And as such the evidence which has not been put to the appellant cannot be used against him; that admittedly the complainant and Muhammad Asghar (P.W.4) are interested and inimical witnesses because the complainant has admitted that Muhammad Ashraf appellant filed an application against them because they filled the pond of village and took its possession and the Revenue Authorities declared them as illegal occupants and passed an order of their eviction; that during the course of investigation the appellant was found innocent and nothing was recovered from his possession or at his instance and as such the ocular account furnished by Ghulam Sarwar complainant (P.W.3) and Muhammad Asghar (P.W.4) is doubtful, as they are chance, interested and inimical witnesses, therefore, corroboration of such witnesses is sine qua non which is very much lacking in this case; that this appeal may be accepted and the appellant may be acquitted from the charge. ' Insofar as Muhammad Shafqat appellant is concerned, learned counsel contends that he was convicted by the learned trial court, his sentence was suspended by this Court vide order dated 31- 3-2009 and he was ordered to be released on bail and thereafter he did not appear despite issuance, of notice and warrants. Notices to the sureties were also issued and ultimately they deposited the amount of sureties. It is further submitted that since the appellant has filed his appeal and thereafter he became absent, therefore, this appeal may be decided on merits. Placed reliance on the case reported as Mushtaq and 3 others v. The State (1989 PCr.LJ 2336). While adopting the arguments of learned counsel for Muhammad Ashraf appellant, learned counsel adds that Muhammad Shafqat appellant has falsely been implicated in this case being real son of Muhammad Ashraf appellant; that nothing was recovered from his possession during the course of investigation and he was declared innocent by the police; that the complainant has changed his version qua the role of this appellant during the occurrence; that the prosecution miserably failed to prove its case against the appellants beyond the shadow of doubt, thus, this appeal be accepted and the appellant may be acquitted from the charges. 9. Conversely, learned Deputy Prosecutor-General, for the State, assisted by learned counsel for the complainant opposes this appeal on the grounds that the F.I.R. Was promptly lodged, as occurrence in this case took place on 4-2-2006 at 3-00 p.m. And the matter was reported to the police at 4-30 p.m., whereas, the distance between the place of occurrence and the police station
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is seven and a half miles; that the F.I.R. Was also promptly lodged on the same day at 5-20 p.m. Which rules out the possibilities of deliberation, consultation and also established the presence of the complainant and other eye-witnesses at the spot; that the delay in conducting the post- mortem examination was not on the part of the complainant as the occurrence took place in a village and sufficient time was required to transport the dead body from the place of occurrence to the mortuary; that both the eye-witnesses are though related to the deceased, but they are residents of the same village where this occurrence took place, therefore, their presence at the spot cannot be considered as unnatural or improbable and they have sufficiently explained their presence at the spot by stating that they accompanied their father in order to see one Ch. Nawaz who was sick and when they were coming back to their village and reached at the spot, the appellants and their co-accused came out from the trees from the western side and all the accused persons encircled Ahmad Khan and committed the occurrence; that opinion of the police is inadmissible in evidence; that the prosecution evidence remained consistent despite lengthy cross-examination; that the ocular account gets full support from the medical evidence and the complainant did not change his version rather clarified the same; that the motive as alleged by the prosecution has been proved in this case; that non-recovery of weapon of offence is not material as the police in connivance with appellants declared them innocent that the sentence of death was rightly awarded to Muhammad Ashraf appellant and the same may be maintained, appeal of the appellant may be dismissed and Murder Reference be answered in the affirmative. So far as PSLA No. 17 of 2008 is concerned it has been argued by learned counsel for the complainant that Saif Ullah and Muhammad Zaman accused actively participated in the occurrence, specific injuries were attributed to them and as Mich they have wrongly been acquitted by the learned trial court, therefore, they be punished in accordance with law. Insofar as Criminal Revision No. 173 of 2008 is concerned, it is argued on behalf of the complainant that Muhammad Shafqat appellant also caused injuries to the deceased and the role assigned to him has been proved through oral, as well as, medical evidence, therefore, the appellant Muhammad Shafqat also deserves normal penalty of death; that the reasons assigned by the learned trial court while awarding sentence of life imprisonment against the said appellant are against the record, therefore, Muhammad Shafqat appellant be also awarded the sentence of death. 10. We have heard the arguments of learned counsel for the parties and have also gone through the evidence available on the record with their able assistance. 11. The first and foremost question for determination before this Court is that whether the appeal filed by Muhammad Shafqat appellant can be decided by this Court in his absence because the said appellant after suspension of his sentence and release on bail by this Court 'vide order dated 31-3-2009 passed in Criminal Miscellaneous No.1 of 2008 has absented himself from this Court. The notices to his sureties were issued and his bail bonds were forfeited. Both of his sureties have deposited the amount of bail bonds to the tune of Rs.2,00,000 each. In the present case an appeal was filed by Muhammad Shafqat appellant against his conviction and sentence of imprisonment for life, through his counsel. A notice was issued to Muhammad Shafqat appellant and in response to said notice Mr. Shahzad Saleem Warraich, Advocate has entered appearance before this Court. We have inquired from the said learned counsel as to whether the authority given by Muhammad Shafqat appellant to him still subsists or the same has been revoked by the appellant. Mr. Shahzad Saleem Warraich, Advocate submits that his association with the case of Muhammad Shafqat appellant as his duly appointed counsel has not been repudiated by the appellant. We have gone through the provisions of sections 422 and 423, Cr.P.C. And have come to this conclusion that a notice of hearing of appeal has to be given to the appellant or his counsel and where the records have been sent for, after hearing the appellant or his learned counsel if he appears, the court may dismiss the appeal or accept it or pass such other order as may be necessary. The only legal
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obligation is to give a notice of hearing to the appellant or his learned counsel and to give him an opportunity of being heard. However, if the appellant or learned counsel for the appellant does not appear before the appellate court even then the appeal can competently be decided after service of notice for hearing to the appellant or his learned counsel, though the appellate court would have been regretfully deprived of the assistance of the appellant or his learned counsel. A reference to section 366(2), Cr.P.C. Will show that the personal attendance of the accused is necessary for the pronouncement of the judgment in criminal trials except where his personal attendance during the trial has been dispensed with or when the judgment is of acquittal or is of fine only but under subsection (3) of the same section a judgment delivered by a court is not to be deemed invalid merely because of the reason that any party or his pleader was absent on the date of pronouncement of the judgment or for any defect in the service of notice on the parties regarding the date and place of pronouncement of the judgment. In subsection (4) of this section the application of provisions under section 537, Cr.P.C. Have been reaffirmed with the result that the pronouncement of the judgment in a criminal trial in the absence of any party is not at all an illegality nor the same will render any such judgment as invalid. We have also noted that there is no such provision in the Code of Criminal Procedure such as that contained in section 366, Cr.P.C. For the announcement of judgment in criminal appeal meaning thereby, that the intention of the legislature was that the judgment in appeal can be pronounced in the absence of the appellant. Similarly there is no legal requirement at all that a party is to be present or is available or is within the reach of the court at the time of decision of his appeal. We are of the considered view that it is duty of the court to do justice after appraisal of evidence and appellant cannot be punished simply for the reason that he had absconded after filing his appeal before the appellate court. A similar proposition came under discussion before the Hon'ble Supreme Court of Pakistan in the case of Haq Nawaz and others v. The State and others (2000 SCM R 785) wherein at page No.811 it was observed as under:- "We now take up Criminal Appeal No. 176 of 1999 filed by the State challenging the acquittal of the respondents. The learned State Counsel very vehemently contended that the acquittal of the respondents in the above case was on wrong premises as sufficient evidence was led by the prosecution to sustain their conviction. The learned State Counsel also very vehemently contended that in so far respondent Zakiullah is concerned, he was fugitive from law and therefore, his appeal should have been dismissed by the High Court at the hearing. Before considering the contention of the learned State Counsel on merits, we would like to dispose of the contention that the case of the appellant Zakiullah could not be decided by the High Court as he was fugitive from law. This argument was fully considered by the learned Judges of the High Court but repelled. The learned State Counsel does not dispute that the time the appeal was filed before the High Court, he was in prison. It is subsequent to the filing of the appeal that he was stated to have absconded from the jail custody. In our view, in such a circumstance, it was discretionary with the High Court either to defer consideration of the appeal of Zakiullah or to hear the same and decide on merits. Since Zakiullah was not absconder and fugitive from law at the time he lodged his appeal and his subsequent act of absconding from jail was an independent act punishable under the law separately, no exception could be taken if the High Court, in such circumstances, decided to deal with his case on merits. We, therefore, find no substance in the contention of the learned State Counsel that the case of appellant Zakiullah could not be heard on merits." ' In another case titled as Muhammad Aslam and 5 others v. The State (1972 SCM R 194) the Hon'ble Supreme Court of Pakistan while giving the benefit of doubt to the appellants of said case also acquitted the absconding appellant who after filing his appeal became an absconder and remained fugitive from law till the decision of his appeal. The concluding Paragraph of the said judgment at page No. 201 reads as under:--
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"Having regard to these broad features of the case the appellants were entitled to the benefit of doubt which should have been given to them. We accordingly allow the appeal, set aside the conviction and sentences of all the appellants including the absconding appellant Muhammad Aslam, and acquit them of all the charges, and direct that they shall be set at liberty forthwith if not wanted in connection with any other matter. ' We may observe here that although the appellant Muhammad Aslam has absconded during the pendency of the present appeal and has remained absconding up till now, the benefit of our judgment should be given to him also in order to do complete justice in the case. We, therefore, do not find it necessary to postpone the hearing of the case of Muhammad Aslam until his presence before the Court." ' We may also refer here the case of Mushtaq and 3 others v. The State (1989 PCr.LJ 2336) wherein at page No. 2341 this Court has observed as under:- '.............................. He frankly conceded that Noor Hassan had absconded after the close of the trial, but before the announcement of the judgment and so he had no right of hearing. But in any case, as per Hayat Bakhsh's case 1981 SCM R 1 it was the duty of the Court to sift the evidence and to do justice in his case as well, if after perusal and…
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