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Petitioner: MIAN KHAN and 3 others VS Respondent: The STATE and another
Court Name: Lahore High Court Judge(s): Aalia Neelum Title: MIAN KHAN and 3 others vs The STATE and another Case No.: Crl. Appeal No.1405 and Cr1. Revision No.1038 of 2012 Date of Judgment:2017-02-24 Reported As: 2018 MLD 226 Result: Order accordingly
JUDGMENT
JUDGMENT AALIA NEELUM, J.---(1) Mian Khan son of Muhammad Sharif (since dead), (2) Ajmal Mushtaq son of Muhammad Mushtaq, (3) Babar Mushtaq son of Muhammad Mushtaq, all Gujjar by caste and, resident of Nindowal, Tehsil Kharian, District Gujrat as well as (4) Fakhar son of Muhammad Zafar, Caste Gujjar, resident of Ghaghay, Tehsil and District, Gujrat, the appellants: along with their co- accused persons namely Muhammad Riaz (since proclaimed offender), Aftab (since proclaimed offender), Zafar Mehdi (since proclaimed offender), Muhammad Mushtaq (since dead), Muhammad Tariq (since proclaimed offender) and Khan Muhammad (since murdered) were involved in a private complaint dated 19.05.2010, registered under Sections 302, 324, 440, 109, 148, 149, P.P.C., at Police Station, Saddar Lalamusa, District Gujrat as well as in State case FIR No.31-2010 dated 16.02.2010, offence under Sections 302, 324, 427, 109, 148, 149, P.P.C., registered at Police Station, Saddar Lalamusa, District Gujrat and were tried by the learned Additional Sessions Judge, Kharian. The learned trial court seized with the matter in terms of judgment dated 06.09.2012 convicted the appellants under Section 302(b), P.P.C., read with Section 149, P.P.C., and sentenced to Imprisonment for life each with the direction to pay compensation amounting to Rs.50,000/- each to the legal heirs of the deceased and in case of default thereof, each of the appellant would further undergo six months simple imprisonment. The appellants were also convicted under Section 324, P.P.C., read with Section 149, P.P.C., and sentenced to Imprisonment for seven years R.I. each with the direction to pay fine of Rs.30,000/-each and in default thereof, each of the appellant would further undergo simple imprisonment of three months. The appellant were further convicted under Section 148, P.P.C., and sentenced to three years R.I. each. The appellants were also convicted under Section 337-F(i), P.P.C., read with Section 149, P.P.C., and each of them was
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sentenced to undergo six months R.I. on three counts with the direction to pay Rs.20,000/-each as Daman to the each injured. The appellants were further convicted under Section 440, P.P.C., read with Section 149, P.P.C., and each of them was sentenced to undergo two years R.I. with the direction to pay fine of Rs.5000/- each and in case of default thereof, each of them would suffer simple imprisonment of one month. All the sentences shall run concurrently. The benefit of Section 382-B of Cr.P.C. was also extended in favour of the appellants. 2. Being aggrieved by the judgment of the learned trial court, the appellants, Mian Khan, Ajmal Mushtaq, Babar Mushtaq and Fakhar have assailed their conviction and sentence by way of filing instant Criminal Appeal No.1405 of 2012 whereas the complainant-Mudassar Iqbal being dis- satisfied with the judgment dated 06.09.2012, preferred a Criminal Revision No.1038 of 2012 for enhancement of sentence of the appellants. As all the matters are arising out of one and the same judgment, therefore, they are being disposed of through a single judgment. 3. The prosecution story as contained in the private complaint (Ex.PG) filed by Mudassar Iqbal (PW- 4)-the complainant is that on 16.02.2010 at about 3:00 p.m., the complainant (PW-4) along with Muhammad Bashir (since dead), Nazir Ahmad the injured (PW-6), Tariq Mehmood the injured (PW- 5) while riding on two motorcycles were going towards their village after attending court proceedings from Kharian and when the complainant (PW-4) along with Muhammad Bashir (since dead), Nazir Ahmad-the injured (PW-6), Tariq Mehmood-the injured (PW-5) reached near the Dera of Khalid Porr then all of a sudden, the accused-Muhammad Riaz armed with Kalashanikov, the accused-Mian Khan (since dead) armed with a rifle .222-bore, the accused-Mushtaq Ahmad armed with Kalashanikov, the accused-Aftab Riaz armed with Kalashnikov, the accused-Zafar Mehdi armed with a rifle .222-bore, the accused-Ajmal Mushtaq armed with a rifle .222-bore, the accused-Babar Mushtaq armed with a rifle .222-bore and the accused-Fakhar armed with Kalashanikov were already sitting on the right side of the road, who with their common intention, started indiscriminate firing upon the complainant (PW-4) along with Muhammad Bashir (since dead), Nazir Ahmad-the injured (PW-6), Tariq Mehmood-the injured (PW-5) and a result whereof, the complainant (PW-4) received fire shots on the right side of the abdomen, the deceased, Muhammad Bashir received fire shots on right oalf and left knee whereas Nazir Ahmad-the injured (PW-6) received fire arm injuries on right knee and chin while Tariq Mehmood-the injured(PW-5) received injuries on right elbow, right buttock and right leg, upon which, the complainant (PW-4) along with Muhammad Bashir (since dead), Nazir Ahmad-injured (PW-6), Tariq Mehmood-injured (PW-5) fell down whereas the deceased-Muhammad Bashir succumbed to the injuries and the motorcycles of the complainant party were seriously damaged. On hearing the report of firing, Ghulam Farid (PW-7) and Adalat Khan also attracted at the place of occurrence whereas all the accused persons while making firing fled away towards the eastern side. The motive behind the occurrence was that one year prior to the occurrence, the accused-Khan Muhammad (since murdered) had made a murderous assault on the complainant and as a result whereof, the accused-Khan Muhammad (since murdered) was detained in lock-up and the alleged occurrence took place as the complainant refused to effect compromise with them. In addition to the above said accused persons, the accused-Muhammad Tariq was also equipped with a rifle .222-bore and made indiscriminate firing upon the complainant party. 4. On receipt of information, Khalid Hussain, S.I. (CW-6) along with Ibrar Hussain 2387/C, Ali Hassan 3498/C, Farooq Ahmad 2674/C, Kamran Khan 2770/C (CW-3), Mumtaz Ahmad 2957/C, Usman Ghani 2623/C reached at the spot where the complainant-Mudassar Iqbal (PW4) get recorded his (PW-4) statement, which was reduced into writing (Ex.PF) by Khalid Hussain, S.I. ,(CW-6) and the complainant (PW-4) signed the same as a token of its correctness. Thereafter, Khalid Hussain, S.I. (CW-6) sent the complaint (Ex.PF) to the police station through Farooq Ahmad 2674/C for registration of formal FIR.
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5. Earlier on the statement of the complainant (PW-4), the FIR, was chalked out by Muhammad Iqbal, A.S.I., and thereafter investigation was entrusted to Khalid Hussain, Si. (CW-6), who prepared injury statement of the injured-complainant (PW-4) (Ex.PB/2), injury statement of Nazir Ahmad (Ex.PA/2) as well as injury statement of Tariq Mehmood and deputed Ibrar Hussain 2387/C to get medically examined the injured-prosecution witnesses from Rural Health Centre Hospital, Lalamusa. Thereafter, the Investigating Officer (CW-6) inspected the dead body of the deceased, Muhammad Bashir and prepared injury statement (Ex.CW-6/A), inquest report (Ex.CW-6/B), drafted an application (Ex.CW-6/C) for postmortem examination of the deceased, Muhammad Bashir and deputed Mumtaz Hussain 2957/C and Usman Ghani 2623/C to escort the dead body of the deceased, Muhammad Bashir to the mortuary of Tehsil Headquarter Hospital, Kharian. Thereafter, the Investigating Officer (CW-6) secured bloodstained earth from the place of murder of Muhammad Bashir (since dead) vide recovery memo. (Ex.PH) and also secured bloodstained earth from the place of injury of the injured-Mudassar Iqbal and Nazir Ahmad through recovery memo. (Ex.PJ). The Investigating Officer (CW-6) collected 27 crime empties of Kalashnikov, 15 crime empties of .222 bore, one magazine and took the same into possession vide recovery memo. (Ex.PK) and also took into possession a motorcycle Honda-125 black colour as well as motorcycle Yamaha red colour vide recovery memo. (Ex.PL). Thereafter, the Investigating Officer (CW-6) prepared rough site plan of the place of occurrence (Ex.CW-6/D) and recorded the statements of prosecution witnesses under Section 161 of Cr.P.C. Thereafter, the Investigating Officer (CW-6) recorded the supplementary statement of the complainant (PW-4), who nominated the accused- Khan Muhammad (since murdered). The Investigating Officer (CW-6) moved applications (Ex.CW- 6/E and Ex.CW-6/F) before the Medical Officer for recording the statements of injured-prosecution witnesses i.e. Nazir Ahmad (PW-6) and Tariq Mehmood (PW-5). Thereafter, Mumtaz Ahmad 2857/C produced last worn clothes of the deceased i.e. Tehband (P-1), Kurta (P-2) and Vest (P-3) before the Investigating Officer (PW-4), who took the same into possession vide recovery memo. (Ex.PD). On 18.02.2010; Akhtar Napsh, Draftsma n on the direction of the Investigating Officer (CW-6) and on the pointing of prosecution witnesses visited the place of occurrence and prepared scaled site plan (Ex.CW-6/G) and produced the same before the Investigating Officer (CW-6) on 19.02.2010. On 18.03.2010, the Investigating Officer (CW-6) arrested the accused-Mian Khan (since dead), Mushtaq Ahmad, Ajmal Mushtaq and Babar Mushtaq. Therafter, investigation was entrusted to Altaf Hussain, S.I. (CW-7), who arrested the accusedFakhar Iqbal. During interrogation, the accused-Fakhar Iqbal got recovered a kalashnikov (P-4) which was taken into possession by the Investigating Officer (CW-6) vide recovery memo. (Ex.CW-4/A) and prepared rough site plan of place of recovery (Ex.CW-7/A). After investigation, Altaf Hussain, S.I. (CW-7) found all the accused persons innocent except the accused-Fakhar Iqbal and prepared challan while placing the name of the accused-Fakhar Iqbal in column No.III and sent the same to the court of competent jurisdiction through the concerned Station House Officer, whereupon the complainant (PW-4) being dissatisfied with the investigation, filed a private complaint (Ex.PG) against all the accused persons including Muhammad Tariq (since proclaimed offender) and Khan Muhammad (since murdered) during pendency of the State case before the learned Judicial/Maga Magistrate Section 30, Kharian. The learned Illaqa Magistrate Section 30, Kharian sent the same to the worthy Sessions Judge, Gujrat for its entrustment to the court of competent jurisdiction. The learned trial court after hearing preliminary arguments, summoned all the accused persons to face the trial. On 19.10.2011, the learned Additional Sessions Judge, Kharian formally charge sheeted the appellants along with others to which they pleaded not guilty and claimed trial. 6. The prosecution in order to substantiate its case produced as many as seven (07) prosecution witnesses during the course of State case whereas remaining witnesses mentioned in the calendar of witnesses were examined as CW-1 to CW-7 during trial in private complaint. Ocular account in
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this case consists of the statements of Mudassar Iqbal (PW-4), Tariq Mehmood (PW-5), Nazir Ahmad (PW-6) and Ghulam Farid (PW-7). 7. Dr. Naeem Akhter appeared as PW-1 and deposed that on 16.02.2010, he (PW-1) medically examined the body of the injured-Nazir Ahmad and found the following injuries on his person:- Injuries. 1Fire arm inlet wound (1/2) x (1/2) cm x DNP outer side of right knee joint. 2.Fire arm exit wound 1.5 x 1 cm x DNP on medial side of right knee with swellon area X-ray knee joint was advised. 3.Fire arm wound 4.5 x 2.5 cm exposing underneath muscles and bone, bleeding profusely on centre of chin mendible. X-ray mendible advised. 4.Lacerated wound 2.5 x 1.5 cm. tissue deep on right side of tempore prietal region of skull. X-ray skull advised (AP and Lat). After conducting the medical examination, the doctor rendered the following opinion:-- Opinion. "Patient wounds bleeding profusely and going to shock, corresponding holes were present in the clothes. After first aid management, he was referred to ABS hospital, Gujrat. All injuries were kept under observation till expert opinion Surgeon ABS Hospital Gujrat. Injuries Nos. 1, 2 and 3 by fire arm weapon and injury No.4 was caused by blunt weapon. Probable duration of injuries within half an hour. Ex. PA is correct carbon copy of MLR and Ex.PA/1 is diagram of injuries." On the same day, Dr. Naeem Akhter (PW-1) medically examined the body of the injured-Mudassar Iqbal and found the following injuries on his person:-- Injuries. 1.There was firearm inlet wound 1/2 x 1/2 cm x DNP, on right side of abdomen. 2.Firearm exit wound I x 1 cm on left side of abdomen. X-ray abdomen was advised. 3.Firearm inlet wound 3 x 1 cm x DNP on right side of hip faint. X-ray hip joint was advised. 4.Firearm exit wound 2 x 2.5 cm x DNP on anterior lateral side of left thigh in its lower half. 5.Firearm inlet wound 1 x 1/2 cm into DNP on anterior medial side of left thigh in its lower half. 6.Firearm wound 9 x 2.5 cm x DNP on posterior medial side of left thigh in its proximal part. Bleeding profusely. X-ray left thigh was advised. 7. Firearm inlet wound 1 x 1/2 cm x DNP on anterior medial side of upper one third of left thigh. 8. Firearm exit wound 2 x 2.5 cm on anterior lateral side of left thigh in upper 1/3 rd. 9. Firearm inlet wound 1 x 1/2 cm x DNP on posterior side of upper half of left thigh corresponding holes were present on the clothes and clothes were bloodstained as well. After conducting the medical examination, the doctor rendered the following opinion:- Opinion. "Patient was bleeding profusely. His condition was deteriorating and after first aid management, he was immediately referred to A.B.S Hospital, Gujrat for further management and consultation. All injuries were kept' under observation till expert Surgeon opinion. All injuries were caused by firearm weapons. Probable duration of injuries were within about half an hour. There was no probability of fabrication. Ex.PB is correct carbon copy of MLR and Ex.PB/1 is sketch of injuries." On the same day, Dr. Naeem Akhter (PW-1) medically examined the body of the injured-Tariq Mahmood and found following injuries on his person:-- Injuries. 1.Firearm wound 6 x 3 cm x exposing underneath muscles and bones spicules, bleeding profusely on medial side of right elbow and lower 1/3rd of arm junction. 2.Firearm inlet wound 1 x 1/2 x DNP on anterior lateral side of upper part of abdomen. 3.Firearm inlet wound 3 x 2 cm x DNP on outer side of right hip joint. Bleeding profusely. 4.Firearm inlet wound 1.5 cm x 1 cm x DNP on lateral side of middle of right thigh. X-ray thigh
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(right) was advised. 5 Firearm inlet wound 1.5 x 1 cm x DNP on lateral side of lower 1/3rd of right thigh. 6. Firearm exit wound 7 x 3.5 cm x anterior medial side of right thigh lower 1/3rd. Clinically there was fracture underneath in this area and bleeding profusely. After conducting the medical examination the doctor rendered the following opinion:-- Opinion. Patient's condition was deteriorating and after his first aid management, he was referred to A.B.S Hospital, Gujrat for further consultation and management. All the injuries were kept under observation. Probable duration of injuries was half an hour. There was no possibility of fabrication and injuries were caused by the firearm weapons. Ex. PC is correct carbon copy of MLR and Ex. PC/1 is sketch of injuries. Muhammad Hanif, Dispenser Tehsil Headquarter Hospital, Kharian appeared as PW-3, who deposed that Dr. Zia-ul-Haq conducted postmortem examination of the dead body of the deceased-Bashir Ahmad but Dr. Zia-ul-Haq has proceeded to abroad and he (Muhammad Hanif, Dispensor) appeared as secondary evidence being well conversant with the handwriting of Dr. Zia-ul-Haq. Muhammad Hanif, Dispensor (PW-3) produced original register pertaining to postmortem report bearing No.31/10 of the deceased-Bashir Ahmad and also identified postmortem report (Ex.PE) and diagram of injuries (EX.PE/1). 8. On 13.08.2012, the learned Deputy District Public Prosecutor closed the prosecution evidence after tendering the report of Chemical Examiner (Ex.PM), report of Serologist (Ex.PN) as well as report of Forensic Science. Laboratory (Ex.PP). 9. After closure of prosecution evidence, the appellants were examined under Section 342 of Cr.P.C, wherein they opted not to appear as their own witnesses in terms of Section 340(2), Cr.P.C. in disproof of allegations leveled against them in the prosecution evidence and also refused to produce evidence in their defence. While replying to the question that why this case is against them and why PWs deposed against them, the appellants-Mian Khan, Ajmal Mushtaq and Babar Mushtaq made following depositions:-- "The complainant party was already hostile toward us due to the criminal case registered against my co-accused Khan Muhammad (since dead) as mentioned in the motive part of this case. In fact in year 1983 Niaz Ali a co-villager was murdered by Bashir Ahmad deceased, Ghulam Fareed PW and others and the heirs of said Niaz Ali have arranged this occurrence through some hired assassins. And as the actual accused were un-known to the complainant as well as eye witnesses, therefore, while availing the opportunity they had falsely implicated them and their co- accused while making us scape goat. All the PWs are related inter se therefore, they have deposed against them and their co-accused." While replying to the particular question, Fakhar-appellant made following deposition:-- "I am innocent in this case. As a matter of fact one Niaz Ali was murdered by the complainant party and to take the revenge of the above stated murdered the legal heirs of said Niaz Ali deceased had committed the murder of the deceased of this case and committed the occurrence through some hired assassins and I was implicated in this case as scape goat. Motive is not attributed to me; even no previous criminal litigation is pending between me and the complainant party; I am resident of a different village Ghaga, Tehsil and District Gujrat. I am innocent and have been falsely implicated in this case due to ill will on the part of complainant party of this case. All the PWs are inter-see related and due to their inter-se relationship they have falsely deposed against me." 10.Learned trial court after evaluating the evidence available on record found version of the prosecution proved beyond any shadow of reasonable doubt against the appellants, resulting into their conviction in the afore-stated terms.
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11.I have heard the arguments advanced by the learned counsel for the parties and have minutely perused the record available on the file. 12.The entire prosecution case against the appellants-Ajmal Mushtaq, Baber Mushtaq, Mian Khan and Fakhar rests on the oral evidence of injured prosecution witnesses, Mudassar Iqbal (PW-4)-the complainant, Tariq Mehmood (PW-5) and Nazir Ahmad (PW-6), whereas Ghulam Farid (PW-7) and Adalat Khan (given up PW) claimed to be eye-witnesses of the incident. As per prosecution case, the incident had taken place at 3.00 p.m. on 16-02-2010 near the "Dera of Khalid Pour" in the area of village Nindowal, situated within the jurisdiction of Police Station Sadar, District Lalamusa which is at a distance of 4 miles only from the place of occurrence and it is connected by metalled road, where the deceased-Bashir Ahmad succumbed to the fire arm injuries at the spot whereas, Tariq Mehmood (PW-5) and Nazir Ahmad (PW-6) had also received serious injuries in the said incident. The complainantMudassar Iqbal (PW-4) deposed during examination-in-chief that, "Police reached at the place of occurrence and I got recorded my statement Ex. PF which was read over to me and I signed it in token of its correctness. Afterwards we were shifted to RHC, Lalamusa for medical treatment. From there we were referred to DHQ Hospital, Gujrat and Tariq PW was onward referred to Meo Hospital, Lahore." Khalid Hussain, S.I (CW-6)-the Investigating Officer, deposed during examination-in-chief that, "On 16.02.2010 I was posted in P.S Sadar Lalamusa. On the same day after receipt of information of the occurrence I along with other police officials reached at the place of occurrence i.e. matlled road leading toward Nindowal near the Dera of Khalid Pour. Mudassar Iqbal complainant appeared before me in injured condition and got recorded his statement under section 154, Cr.P.C. which was reduced into writing and read over to him, who signed Ex. PF in token of its correctness. After endorsing my proceedings on Ex.PF I dispatched the same to P.S. for formal registration of FIR through Farooq Ahmad 2674/C. Afterward I prepared injury statement of Mudassar Iqbal, Ex.PB/2, injury statement of Nazir Ahmad Ex.PA/2 and of Tariq Mehmood and deputed Ibrar Hussain 2387/C to get medically examined the said PWs from RHC Hospital Lalamusa." (underlined for emphasis). According to the prosecution, the incident took place at 3:00 p.m. on 16.02.2010 and the injured namely Mudassar Iqbal (PW-4)-the complainant, Tariq Mehmood (PW-5) and Nazir Ahmad (PW-6) were shifted to the hospital by the police after recording statements of Mudassar Iqbal (PW-4)-the complainant and other injured (PW-5 and PW-6) at the spot. Whereas, Dr. Naeem Akhter (PW-1), who conducted medical examination of the injured i.e. Mudassar Iqbal (PW-4)-the complainant, Tariq Mehmood (PW-5) and Nazir Ahmad (PW-6) deposed that on 16-02-2010 he (PW-1) conducted medical examination of Nazir Ahmad (PW-6), Mudassar Iqbal (PW-4) and Tariq Mehmood (PW-5), who were brought to the hospital by police for medical treatment. Dr. Naeem Akhter (PW-1) deposed during cross-examination that, "All the three injured were produced before me at 3:30 p.m.---The injury statements of all the three injured were produced before me at the time of their M.L examination." (underlined for emphasis). Fact, however, remains that the injured prosecution witnesses were medically examined by Dr. Naeem Akhter (PW-1) between 3:35 p.m. to 4:00 p.m. On perusal of Medico Legal Certificate (Ex.PB) of the complainant, Mudassar Iqbal (PW-4), it reveals that he (PW-4) was medically examined at 4:00 p.m. Likewise Tariq Mehmood (PW-5) deposed during cross-examination that, "1 remained in senses after receipt of fire arm injuries. I cannot tell that after how much time of the occurrence police arrived there. After arrival of police were dispatched to hospital. My statement was recorded by the 1.O after about 8 days of the occurrence but I cannot tell the exact date. 1 only know that police after arrival send us to hospital and I do not know the other proceedings conducted by the police at the spot." As per Medico Legal Certificate (Ex.PC), it reveals that he (PW-5) was medically examined at 3:55 p.m., whereas Nazir Ahmad (PW-6) deposed during cross- examination that, "After the occurrence we were shifted to RHC, Lalamusa from there we were referred to DHQ Hospital, Gujrat and Tariq was further referred to Meo Hospital, Lahore." On perusal
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of Medico Legal Certificate (Ex.PA), it reveals that Nazir Ahmad (PW-6) was medically examined at 3:35 p.m. All the injured were brought to the hospital for medical treatment by police. It was specifically mentioned in the Medico Legal Certificates (Ex.PA, Ex.PB and Ex.PC) that "patient is not fit for statement." Dr. Naeem Akhter (PW-1) also deposed regarding health condition of all the injured, who were medically examined by him (PW-1), about complainant-Mudassar Iqbal (PW-4) he (PW- 1) deposed during examination-in-chief that, "He was not able or fit for statement, so statement of brief history was not recorded." He (PW-1) further deposed regarding the complainant-Mudassar Iqbal (PW-4) during examinationin-chief that, "His condition was deteriorating and after first aid management, he was immediately referred to A.B.S. Hospital, Gujrat for further management and consultation." (underlined for emphasis). Whereas contrary to the deposition of the injured prosecution witnesses, (PW-4, PW-5 and PW-6), on perusal of "Fard Bayyan Ex.PF" it reveals that Khalid Hussain, S.I. (CW-6)-the Investigating Officer after police karwai written at the bottom of the verbal statement of the complainantMudassar Iqbal (PW-4) specifically mentioned at 4:00 p.m. The police karwai reads as under:-- {{URDU TEXT}} The fact remains that neither the complainant-Mudassar Iqbal (PW-4) along with other injured prosecution witnesses were present at the place of occurrence at 04:00 p.m., nor they were referred by Khalid Mehmood, S.I. (CW-6) for medical treatment as well as injury statements were prepared at the time of recording of Fard Bayyan. The testimony of Dr. Naeem Akhter (PW-1) suggests that the complainantMudassar Iqbal (PW-4) was not in…
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