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Petitioner: The State and Sabir VS Respondent: Sabir and The State etc
Court Name: Lahore High Court Judge(s): Sardar Muhammad Sarfraz Dogar Title: The State and Sabir vs Sabir and The State etc Case No.: Murder Reference No. 15 of 2012/BWP Criminal Appeal No. 56 of 2012/BWP Date of Judgment:2016-05-30 Reported As: 2016 LHC 1705 Result: N/A
Judgment Sardar Muhammad Sarfraz Dogar, J:-Sabir son of Faza appellant was convicted for an offence under section 302 (b), PPC as Taz'ir, vide judgment dated 31.01.2012 rendered by the learned Additional Sessions Judge, Rahim Yar Khan and was sentenced to death for committing 'qatl-i- amd' of Ashiq Hussain deceased with direction to pay a sum of Rs. 2,00,000/- to the heirs of the above-said deceased by way of compensation under section 544-A, Cr.P.C. and in default of payment thereof to further undergo six months. He was also convicted under section 148 PPC and sentenced to undergo two years R.I. and benefit of section 382-B, Cr.P.C. was also extended to him. Sabir appellant has challenged his conviction and sentence before this Court through the instant Criminal Appeal No. 56 of 2012 which has been heard by us alongwith Murder Reference No. 15 of 2012 sent by the learned trial court under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death passed by the learned trial court against Sabir appellant. We propose to decide both these matters together through the present consolidated judgment. 2. Concisely the facts of the prosecution case setup in the F.I.R (Ex. PA) got lodged by Waheed Murad complainant (PW-1) are that he was resident of Mouza Puran and was working in a showroom with the name of "Nawaz Motors" at Khan Pur Road, Rahim Yar Khan. He was residing temporarily at Gulshan-e-Iqbal, Rahim Yar Khan. On every Friday being holiday, he used to go to Mauza Puran to see his parents. On the day of occurrence, he (complainant) alongwith Liaqat Ali, Shakir (P.W-10) and Jamil came to Mauza Puran to see his parents, where Ashiq Hussain (deceased) alongwith his wife Mst. Gul Naz, who were living at Karachi having close relationship with the parents of the complainant had also come to see them. As soon as they intended to leave for Rahim Yar Khan, Ashiq Hussain (deceased) and his wife also became ready to go with them. The complainant, Liaqat Ali and Shakir (PW-10) maternal nephew of the complainant boarded on a
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Daala bearing Registration No. DR/6080, which was being driven by the complainant, whereas, Ashiq Hussain (deceased), Mst. Gul Naz and Jamil Ahmad (PW-9) boarded on a car bearing Registration No. PG/9071 and the said car was being driven by Jamil Ahmad (PW-9) paternal cousin of the complainant. At about 8.00 p.m. when they boarded on the above-said vehicles reached near the dera of Zahid Khan within the limits of Chak No. NP/63, suddenly, from the road side, Muhammad Nawaz (since P.O), Sabir (appellant) and Fayyaz Ahmad (since P.O) all armed with rifles, Haq Nawaz armed with pistol, Nazir Ahmad armed with soti, Fida Hussain armed with pistol, Shakoor and Irshad armed with hatchets emerged alongwith the road side and got them alighted from the vehicles at gun point. Muhammad Nawaz (since P.O) raised a lalkara to teach them a lesson for sending Mst. Safia Bibi his wife to Darul Aman and all of them should not be left alive. Within their views, Muhammad Nawaz (since P.O) Sabir (appellant) and Fayyaz Ahmad (since P.O) made straight firing with their respective rifles at Ashiq Hussain (deceased) and all the three fires landed under the armpit of Ashiq Hussain (deceased), who fell down. Haq Nawaz made pistol fire which hit Jamil paternal cousin of the complainant on the shin of his right leg. Fida Hussain also fired with pistol hitting Shakir paternal nephew of the complainant on his left shin. When they tried to apprehend the accused, they pointed firearm weapons and said that if anybody would come near to them, he would not let him alive. On hearing the sound of firing as well as the hue and cries, the people from the locality attracted to the spot, whereas, the accused persons on seeing them coming fled away while making aerial firing. They attended the injured, but Ashiq Hussain succumbed to the injuries at the spot. The motive behind the occurrence was alleged to be that Mst. Safia Bibi wife of Nawaz accused (since P.O) being angry with her husband after filing a suit for dissolution of marriage at Bahawalpur had gone to Darul Aman and the accused had suspicion that they (complainant party) had sent her to Darul Aman after filing suit for dissolution of marriage. Due to this grudge, the accused Muhammad Nawaz, Sabir, Fayyaz Ahmad, Haq Nawaz, Nazir Ahmad, Fida Hussain Shakoor and Irshad in consultation with each other and on the instigation and abetment of Bashir Ahmad and Murad Mai had committed murder of Ashiq Hussain (deceased) while firing, whereas, Jamil Ahmad and Shakir injured were taken to Hospital on Daala (Toyota Hilux) at Mianwali Qureshia. 3. Initially the investigation of this case was conducted by Feroz Ahmad, Inspector/SHO (PW- 11) and during the investigation, the dead body of the deceased was inspected, injury statement and inquest report were prepared, statements of the witnesses under sections 161 Cr.P.C. were recorded, the place of occurrence was inspected, blood-stained earth was secured, rough site- plan of the place of occurrence was prepared, the dead body of the deceased was sent to the mortuary for autopsy, the last-worn clothes of the deceased were received, formal site-plan of the place of occurrence was got prepared, injuries statements of Shakir Sultan PW and Muhammad Jameel were prepared, car and Dala were taken into custody vide recovery memos Ex. PD and Ex. PC, statements of the recovery witnesses were recorded, pieces of bangles from the place of occurrence were also taken into possession vide recovery memo Ex. PH, proclamations under section 87, Cr.P.C. against the absconding accused were got published. On 17.3.2008, investigation was entrusted to Jam Muhammad Jameel, S.I. (PW-12), who on 27.3.2008 formally arrested the appellant and on 28.3.2008, on the disclosure of the appellant rifle (P.11) was taken into possession alongwith three live cartridges (P.12/1-3) vide recovery memo Ex. PI and after completion of the investigation a challan was submitted in the Court. 4. At the commencement of the trial the learned trial court after supplying copies of the documents required under section 265-C, Cr.P.C. to the appellant framed the charge against him on 10.3.2011 to which he pleaded not guilty and claimed a trial.
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5. During the trial the prosecution produced as many as thirteen witnesses in support of its case. The ocular account of the incident in question was furnished by Waheed Murad complainant (PW-1), Muhammad Jameel (PW-9) and Shakir (PW-10), who also deposed about the motive while PW-2 Munir Hussain, identified the dead body of the deceased before the police as well as before the doctor prior to autopsy. The medical evidence was provided by Dr. Muhammad Azam, (PW-6), who on 08.06.2002 at 9.00 a.m. had conducted postmortem examination on the dead body of Ashiq Hussain deceased while Rasheed Ahmad, Patwari (PW-7) on the pointing out of the witnesses and on the instructions of the police prepared scale site plan. PW-11 Feroz Ahmad, Inspector/SHO and Jam Muhammad, S.I. (PW-12) deposed about the various steps taken by them during the course of investigation of this case while PW-13 Muhammad Khalid, 301/C, escorted the dead body of the deceased to mortuary for autopsy. The remaining evidence produced by the prosecution was almost formal in nature. 6. In his statement recorded under section 342, Cr.P.C., the appellant had denied and controverted all the allegations of fact levelled against him by the prosecution and he also professed his innocence. However, to a question that "Why this case is registered against you and why the PWs have deposed against you?" Sabir appellant replied as under:- "I have been falsely involved in this case. I was not present at the place of occurrence. Complainant and PWs involved me in this case just out of suspicion. Deceased has been murdered as result of fight and dispute between Mastoi and Drug Mafiya with deceased and etc. Deceased and complainant party involved in Narcotics business and some dispute arose between the complainant party and drug Mafiya. Mastoie tribe and Drug Mafiya supported each other. Deceased had dispute with Mastoie brothery and there took a fight between deceased and Mastoie brothery in which Qasim, Sultan etc. were injured and Bagh Ali father of the complainant was involved in murder case of Mastoie and challaned in the said murder case. The best evidence has been given up for best known reason to the prosecution. The impression would be that they were given up as they were not supporting the prosecution story. Occurrence took place in dark night. Identification of the culprits is not possible. Alleged private PWs are close relatives of the deceased and complainant and residents of far away places. Their presence at the place of occurrence are quite un-natural. PWs dishonestly improved their statements before the Court. I am innocent." However, neither he had opted to make statement on oath under section 340 (2), Cr.P.C. nor he produced any evidence in his defence. 7. Upon conclusion of the trial, the learned trial court after finding the prosecution's case against the appellant to have been proved beyond reasonable doubt convicted and sentenced him as mentioned and detailed above. Hence, the present appeal and the connected Murder Reference before this Court. 8. The learned counsel for the appellant contended that the prosecution had miserably failed to prove its case against the appellant beyond any shadow of doubt; that the incident was alleged to have taken place at 8.00 p.m. on 7.6.2002 while FIR was shown to be recorded on the same night at 9.30 p.m. at Police Station Rukkanpur District Rahim Yar Khan, but the postmortem had been conducted with the delay of about 14 hours without any justification or explanation as to why the postmortem examination on the dead body of the deceased was not conducted on the same night, i.e. 7.6.2002 at 10.00 p.m. when the other two injured namely Shakir Sultan and Muhammad Jameel were medically examined by the doctor at Mianwali Qureshian; delay in conducting the postmortem examination being unreasonable coupled with other facts suggests that the FIR was not recorded with such promptitude as claimed by the prosecution; that the recovery of rifle (P.11) alongwith three live cartridges from the possession of the appellant was legally inconsequential as no empty was taken into possession and there is no report of the Punjab Forensic Science Agency
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to corroborate the said recovery; that during trial the eyewitnesses failed to prove the motive setup in the FIR; that once the motive was set up by the prosecution, but failed to prove the same, then prosecution must suffer the consequences and not the defence. Relies upon "Noon Muhammad vs. State" (2010 SCM R 97). It is also contended that mere absconsion of the appellant is not sufficient to maintain conviction of the appellant as this alone is not conclusive proof of guilt of accused person, it is only a suspicious circumstance against an accused that he was found guilty of the offence. However, suspicions cannot take the place of proof; that in such circumstances the prosecution has not been able to prove its case against the appellant beyond any shadow of doubt who may be acquitted of the charge. 9. On the contrary, the learned counsel for the complainant and the learned Deputy Prosecutor General have opposed this appeal and maintained in unison that FIR was got registered with promptitude and names of the eyewitnesses and those of the accused along with the manner in which the occurrence had taken place were duly mentioned therein which provided corroboration to the ocular account; that no mala fide in conducting the postmortem examination with delay has been pointed out, but the postmortem examination was conducted on the next day in routine; that Shakir Sultan and Muhammad Jameel injured eyewitnesses had no motive to falsely implicate the appellant, whose presence at the spot stood established and they had also admitted their presence at the spot; that motive part has also been admitted by putting suggestions to these PWs; that the three eyewitnesses remained consistent on material points regarding the time, place and the manner in which the occurrence had taken place and they also fully established their presence at the spot beyond any shadow of doubt, whose statements have been rightly relied upon for recording convictions and sentences against the appellant by the learned trial court; that the awful occurrence in the instant case took place on 7.6.2002, whereas, Sabir appellant was arrested in this case on 27.3.2008, as such he remained fugitive from justice for about more than 6 years and abscondence of the appellant gave sufficient corroboration to the ocular account regarding his involvement in the present occurrence; that recovery of rifle was also effected from the appellant which provides corroboration to the ocular account; that there was no reason to falsely implicate the appellant in the present case by letting off the real culprits if he had not fired at the deceased; that the prosecution had succeeded in proving the case against the appellant beyond any shadow of doubt and the appeal filed by the appellant may be dismissed. 10. We have heard the learned counsel for the parties at length and also gone through the record of this case with due care and caution. 11. The unfortunate incident in the present case according to the prosecution was alleged to have taken place at 8.00 p.m. on 07.06.2002 in the area of Chak No. 63/NP, 3 k.m. away towards South, from Police Station Rukkanpur District Rahim Yar Khan, which was then reported by Waheed Murad (PW-1), the paternal nephew of Ashiq Hussain deceased through complaint (Ex:P-A) recorded at RHC Mianwali Qureshian by Feroz Ahmad, Inspector/SHO (PW-11) on the basis of which formal FIR (Ex. PA) was drafted on the same night at 9.30 p.m. According to the statement of Feroz Ahmad, Inspector/SHO (PW-11), after having information about the occurrence, he reached at RHC Mianwali Qureshian, where Waheed Murad (PW-1) appeared before him and got recorded complaint (Ex. PA), then he inspected the dead body of Ashiq Hussain deceased and prepared injury statement (Ex. PJ/3) and inquest report (Ex. PJ/2) and sent the dead body of the deceased to mortuary for postmortem examination through Muhammad Khalid 301/C (PW-13). He also prepared injuries statements of Shakir Sultan PW, Muhammad Jameel PW, Ex. PK/1 and Ex. PL/1, respectively and handed over the same to Medical Officer for medico legal examination. However, it is strange that according to PW-6 Dr. Malik Muhammad Azam, he on 7.6.2002 at 10.00 p.m. medically examined Shakir Sultan and Muhammad Jameel injured PWs, but postmortem examination on the dead body of Ashiq Hussain deceased was conducted at 9.00 a.m. on 8.6.2002,
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and as per his opinion the time between the death and postmortem examination was 14 hours. So it was a case of delayed postmortem, which casts serious doubt that the FIR was got recorded with promptitude, but the inference can be drawn that the intervening period was consumed in fabricating the prosecution story after the preliminary investigation, otherwise there was no justification for conducting the postmortem examination on the next day at 9.00 a.m. instead of conducting the postmortem examination on the same night i.e. 7.6.2002 at 10.00 p.m. when the other two injured persons namely Shakir Sultan and Muhammad Jameel were medically examined by the same doctor. We may refer here the case of "Irshad Ahmed v. The State" (2011 SCM R 1190), wherein the Hon'ble Supreme Court of Pakistan has observed as under:- "We have further observed that the post-mortem examination of the deadbody of Shehzad Ahmed deceased had been conducted with a noticeable delay and such delay is generally suggestive of a real possibility that time had been consumed by the police in procuring and planting eye- witnesses and in cooking up a story for the prosecution before preparing police papers necessary for getting a post-mortem examination of the deadbody conducted. Similarly, the Hon'ble Supreme Court of Pakistan in a case reported as Ata Muhammad and another vs. The State (1995 SCM R 599) has visualized the tendency on the part of the police in showing that the FIR was got recorded with promptitude, but the courts are bound to see it with distinct source. The relevant portion is reproduced as under:- "We know by our experience that time of recording of F.I.R. is not always genuine. The police, after learning about the commission of the crime keeps the space in the daily diary (Roznamcha) and a page in the F.I.R. Register blank for incorporating therein the gist of the information, the factum of registration of the case and the detailed report subsequently, in the light of preliminary investigation made by it. Furthermore, in this case the F.I.R. was lodged by the eye-witnesses himself. So, his previous statement recorded in the F.I.R. does not come from any distinct source. It is well settled that a witness cannot corroborate himself by repeating the version before different persons on different occasions. The evidence at the trial cannot be corroborated or reinforced by proving that the witness had made a similar statement to a third party on a previous occasion. Mere repetition of a story will not give it any force or prove its truth." In the present case, keeping in view the factum that the postmortem was conducted with the delay of about 14 hours without any justification or explanation coupled with the fact that the PWs made dishonest improvements during the trial to show their presence at the spot, which will be discussed herein below, we are satisfied that the FIR was got recorded after the preliminary investigation and it cannot be used as a corroborative piece of evidence. As such the prosecution story has to be seen with great care and caution. 12. The ocular account of the incident in issue had been provided before the learned trial Court by Waheed Murad complainant (PW-1), Muhammad Jamil (PW-9) and Shakir (PW-10) and we have found that all the said witnesses were not only closely related to Ashiq Hussain deceased but they were also chance witnesses. Ashiq Hussain deceased was paternal uncle of Waheed Murad complainant (PW-1), while Shakir (PW-10) was paternal nephew of Waheed Murad complainant (PW-1) and Muhammad Jamil (PW-9) was his cousin. No doubt mere relationship alone is not sufficient to term them as interested witnesses, but the PWs are bound to explain their presence at the spot with sufficient reasons. We are fortified by the judgment of Hon'ble Supreme Court of Pakistan reported as "Ijaz Ahmad Ys. The State" (2009 SCM R 99), wherein the august Supreme Court in para No. 9 has been pleased to observe as under:- "xxx Mere relationship of a witness with any of the parties would not dub him as an interested witness because interested witness is one who has, of his own, a partisan, or inimical towards the accused, hence any witness who has deposed against the accused on account of the occurrence, by no stretch of imagination can be regarded as an "interested witness".
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13. Presence of the eyewitnesses at the spot was found doubtful as it is evident from the perusal of record that occurrence took place within the limits of Chak No. 63/NP near the dera of Zahid Khan and the eyewitnesses namely, Waheed Murad complainant (PW-1), Muhammad Jamil (PW-9) and Shakir (PW-10) are not residents of the locality where this occurrence took place. As per statements of the eyewitnesses, Basti Puran is at a distance of 50 k.m. from Rahim Yar Khan and the eyewitnesses have not given any plausible reason for going to Rahim Yar Khan from their house at Basti Puran during the night time instead of travelling early in the morning on the next day. Even otherwise, as per statement of the complainant Waheed Murad (PW-1) he and his brother had their own cars and they could have reached Rahim Yar Khan after one an hour. The presence of abovementioned eyewitnesses at a far off place from their residence during night time is highly improbable. The reason given by the complainant for presence of the abovementioned eyewitnesses at the spot at the relevant time does not appeal to common sense. The prosecution case as set forth in the FIR, as well as, in the statement of Waheed Murad complainant (PW-1) was that they had started from Rahim Yar Khan at about 9.00 a.m. on the day of occurrence in the company of Shakir, Jameel and Liaqat PWs on a car while the occurrence took place at 8.00 p.m. It does not appeal to a prudent mind that the accused persons kept on waiting for almost 11 hours for commission of the offence while standing in the janter crop duly armed with firearm weapons. Admittedly, the occurrence took place at 8.00 p.m. (night time) and the place of occurrence was found to be surrounded by crops but no source of light at the place of occurrence has been shown and it was not case of the prosecution that lights of the vehicles were on, therefore, identification of the assailants in the dark hours of the night was not possible. Even otherwise, the eyewitnesses have failed to disclose that why Ashiq Hussain deceased alongwith his wife had shown his sudden intention to go with them at Rahim Yar Khan which was at a distance of 50 k.m. from Basti Puran in spite of the fact that he had no residential house at Rahim Yar Khan. Even otherwise, statements of PW-1 Waheed Murad and PW-9 Muhammad Jameel are found in contradiction with each other, as PW-1 stated that Mst. Gulnaz Bibi wife of Ashiq Hussain deceased was not injured during the occurrence, whereas, PW-9 Muhammad Jameel stated that she was injured. 14. According to the FIR, Muhammad Nawaz, Fayyaz Ahmad (since POs) and Sabir appellant made straight fire shots with their respective rifles simultaneously hitting Ashiq Hussain deceased under his left armpit. On the other hand, PW1 Waheed Murad complainant while appearing in the Court improved his statement and stated that Sabir appellant made fire on Ashiq Hussain deceased which hit near the left armpit. Likewise, PW-9 Muhammad Jameel while ascribing the role of Sabir appellant in his examination-in-chief deposed that Sabir made a rifle fire which hit under the left Axilla of Ashiq deceased, but this witness did not state anything about the injury attributed to Nawaz and Fayyaz and simply stated that Nawaz and Fayyaz also made rifle fire at Ashiq Hussain deceased. Similar position is Shakir who while appearing in the witness box as (PW-10) simply stated that Sabir appellant fired shot at Ashiq Hussain deceased without giving the seat of the injury. As per record, three eyewitnesses, Liaqat Ali and Mst. Gulnaz wife of Ashiq Hussain were present alongwith him but none of them had approached the Police for registration of the case and no reasonable explanation has been tendered by them for not approaching the police for getting registered the case with promptitude. In such circumstances, whether the witnesses were present at the spot and had seen the incident is the question which has not been sufficiently answered by the eyewitnesses. 15. Mst. Gulnaz Bibi wife of Ashiq Hussain deceased who had come from Karachi alongwith the deceased and who was also accompanying the deceased at the time of occurrence was not produced by the prosecution in support of its case. Although the prosecution is not required to produce a number of witnesses as the quality and not the quantity of the evidence is the rule but non-production of most natural and material witness of occurrence, would strongly lead to an
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inference of prosecutorial misconduct which would not only be considered a source of undue advantage for possession but also an act of suppression of material facts causing prejudice to the accused. Despite the presence of Mst. Gulnaz Bibi wife of Ashiq Hussain deceased who was natural witnesses on the spot, she was not produced in support of the occurrence and an adverse inference under illustration (g) to Article 129 of the Qanun-e-Shahadat Order, 1984 could easily be drawn that in case she was produced she would not have supported the prosecution version. We may refer here the case of "Muhammad Rafique and others Vs. The State and others" (2010 SCM R 385), wherein the Hon'ble Supreme Court of Pakistan has observed as under:- "It is well-settled that if any party withholds the best piece of evidence then it can fairly be presumed that the party had some sinister motive behind it. The…
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