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Petitioner: MUHAMMAD KHAN VS Respondent: STATE
Court Name: Lahore High Court Judge(s): Manzoor Ahmad Malik, Muhammad Anwar Bhaur Title: MUHAMMAD KHAN vs STATE Case No.: Crl. A. No, 2105 of 2005 & M.R.No, 8 of 2006 Date of Judgment:2010-05-18 Reported As: PLJ 2011 Cr.C. (Lahore) 363 Result: Appeal dismissed
JUDGMENT
JUDGMENT Muhammad Anwar Bhaur, J.--Muhammad Khan son of Ahmad Khan, Muhammad Khalid son of Muhammad-Nawaz, Muhammad Akram son of Sher Muhammad, Ahmad Khan, Muhammad Nawaz, Muhammad Riaz sons of Ahmad. Yar and Aamir Sohail alias Smail son of Nazar Muhammad were tried by the learned Additional Sessions, Judge, Sargodha for committing murder of Muhammad Iqbal deceased brother of Nazar Muhammad complainant, in case F.I.R. No, 514, dated 21.12.2004, registered with Police Station Jhal Chakkian, District Sargodha for an offence under Section 302/34 read with Section 109, P.P.C. The learned trial Judge by virtue of his judgment dated 22.12.2005 found Muhammad Khan and Aamir Sohail alias Small guilty of the said charge, convicted them under Section 302(b)/34 P.P.C. and sentenced them to death and imprisonment for life, respectively, with further direction to; pay a sum of Rs, 1,00,000/- each to legal heirs of the deceased as compensation under Section 544-A Cr.P.C. or in default thereof to undergo simple imprisonment for six months each. Benefit of Section 382-B Cr.P.C. was, however, extended to Aamir Sohail alias Smail. The learned trial Judge by giving benefit of doubt to Muhammad Khalid, Xuhammad Akram, Ahmad Khan, Muhammad Nawaz, and Muhammad Riaz acquitted them of the charge. 2. The convicts, namely, Muhammad Khan and Aamir Sohail alias Smail (hereinafter to be called as the appellants) by filing separate appeals bearing; Criminal Appeal No, 2105 of 2005 (Muhammad Khan v. The State) and Criminal Appeal No, 170 of 2006 (Aamir Sohail alias Smail u. The State) have called in question the conviction and sentence awarded to them through the impugned judgment, whereas the learned Additional 'Sessions Judge has sent Murder Reference No, 8 of 2006 seeking confirmation or otherwise of the death sentence awarded to Muhammad Khan-appellant. Nazar
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Muhammad-complainant by filing Criminal Revision No, 210 of 2006 has sought enhancement in the compensation qua Muhammad Khan and sentence of Aamir Sohail alias Smail to the maximum, wherein notice was issued to the convicts. We propose to dispose of all these matters together through this single judgment. 3. Occurrence in the instant case took place on 21.12.2004 at 3.00 p.m., within the revenue estate of Chak No 59/NB, situate at a distance of four kilometres from police station Jhal Chakkian, District Sargodha. Nazar Muhammad-complainant (P.W.7) reported the matter to Khuda Yar, SI (P.W.9), at Civil Hospital Sargodha on the same day at 4.30. p.m., who as per his dictation reduced into writing complaint (Exh.PH) and despatched it to the police station for formal registration of the F.I.R. On receipt thereof, Muhammad Riaz Khan, SI (P.W.11) drew up F.I.R. (Exh.PN) on the same day at 5.00 p.m. without any addition or alteration on his part. 4. The prosecution story, as unfurled in the complaint (Exh.PH), on the basis whereof F.I.R. (Exh.PN) was registered, is that Nazar Muhammad-complainant (P.W.7) is resident of Chak No, 59/NB and is residing with his parents and brother, namely, Muhammad Iqbal at the Dera; on the fateful day, at about 3.00 p.m., he along with his brother Muhammad Iqbal, Abdul Rahman son of Saleh Muhammad and Muhammad Ehsan son of Sher Muhammad, residents of the same Chak, was sitting near the Dera of Muhammad Sher at Link Road, Pull of Pakka .Khal with a view to have a conversation with regard to sale of garden; after a short while, Muhammad Iqbal was to leave for his Dera on motorcycle bearing Registration No, 3259/SGL, all of a sudden, a white coloured car 2-D without number, which was driven by Aamir Sohail alias Smail-appellant, approached them and stopped, nearby; Muhammad Khan appellant, Aamir Sohail alias Smail, armed with .12-bore pump action guns, Muhammad Khalid alias Abdul Khaliq and an unknown person, who can be identified when appeared, armed with rifles alighted from the said car; Aamir Sohail pushed motorcycle of Muhammad Iqbal deceased and also inflicted him a butt blow of his gun, who fell down when Muhammad Iqbal was about to get up, Muhammad Khan-appellant fired a gun shot at him, which hit him on his chest; thereafter Aamir Sohail alias Smail-appellant made a fire through; his gun, which also struck on the chest of Muhammad Iqbal, who staggered and fell down in the nearby wheat crop; Muhammad Khalid alias Abdul Khaliq and unknown person while aiming their rifles exhorted Lalkara that if any body comes near, he will be done to death; after accomplishing their ignoble design, the accused decamped from the scene while riding in their car towards metalled road fallen at eastern side; the complainant along with Abdul Rehman and Muhammad Ehsan reached near Muhammad Iqbal, who suffered serious injuries as a result of firing made by the accused; Muhammad Iqbal was taken to. Civil Hospital, Sargodha in injured condition, but he succumbed to the injuries in the way; besides the complainant, the occurrence has been witnessed by Abdul Rehman and Muhammad Ehsan. According to the complainant, the aforesaid accused committed the crime on the abetment and conspiracy of Ahmad Khan, Muhammad Riaz and Muhammad Nawaz sons of Ahmad Yar; their conspiracy was heard by Qamar Hayat and Zafar on 21.12.2004 at 2.00 p.m., when they were present at the Dera of Ahmad Khan and others for their private job, where Ahmad Khan and others were instructing the aforesaid accused to kill Muhammad Iqbal as he had got a case registered for Zina against Muhammad Khan, his father and paternal uncle, which had resulted into their disrespect in the area; the witnesses of abetment laid information of the said conspiracy before father of the complainant at the Dera, but in the meanwhile the occurrence took place. Motive behind the scene was that Muhammad Iqbal got a case registered against Muhammad Khan and others under Zina Hudood Ordinance, wherein they were challaned and due to this grudge, the accused in consultation with each other committed the crime in question. Leaving dead body of Muhammad Iqbal in the hospital under the guard of Abdul Rehman and Muhammad Ehsan, the complainant left for the police station, however) he came across Khuda Yar, SI (P.W.9) in
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the hospital and got recorded his statement (Exh.PH). Resultantly, the aforementioned F.I.R. stood registered. 5. After registration of the case, investigation into the crime was carried out by Khuda Yar, SI (P.W.9), who after completing the same submitted challan before the Court for trial of the accused in accordance with law. On receipt the challan, the trial Court proceeded to frame a charge against the accused, to which they pleaded not guilty and claimed to be tried. The prosecution in order to prove its case produced as many as twelve witnesses, namely, Dr. Muhammad Aslam Asad (P.W.1), Muhammad Saleem, Draftsman (P.W.2), Muhammad Akram, HC (P.W.3), Mukhtar Ahmad, constable (P.W.4), Muhammad Sher (P.W.5), Qamar Hayat (P.W.6), Nazar Muhammad-complainant (P.W.7), Abdul Rehman (P.W.8), Khuda Yar, SI (P.W.9), Zafar Iqbal, constable (P.W.10), Muhammad Riaz Khan, SI (P.W.11) and Qaiser Changaiz, constable (P.W.12). 7. Learned Prosecutor closed the case of prosecution by giving up rest of the witnesses and tendering in evidence reports of Chemical Examiner and Serologist (Exhs.PQ & PQ/1). 8. Thereafter, the accused were examined under Section 342 Cr.P.C. and all the incriminating material brought against them was put to them. The while denying the accusations brought against them claimed their absolute innocence in the matter and alleged their false involvement in the case due to enmity. They neither opted to make statements on oath under Section 340(2) Cr.P.C. nor to adduce evidence in defence. The trial ultimately culminated into conviction and sentence of the appellants as aforementioned. 9. Malik Muhammad Afzal Farooqa, the learned counsel, appearing on behalf of Muhammad Khan- appellant, contended that the allegation against Muhammad Khan was that he fire one shot through his .12-bore pump action gun, which hit on front of chest of Muhammad Iqbal deceased, whereas as per medical evidence the deceased received seven fire-arm injuries; that size and shape of all the injuries as per postmortem report (Exh.PA) are different, which suggests that, one gun was not used in the occurrence; that the prosecution case is that the deceased was fired at with 12-bore pump action guns and in both the weapons cartridges are used, but the nature of wounds in circular, oval and round and such wounds cannot be caused with the weapons wherein cartridge are used and, as such, there is conflict between the ocular account and the medical evidence. To support his contention the learned counsel places reliance on the book "Park Medical Jurisprudence" page 287. The learned counsel argued that the Draftsman has admitted that the distance between point 2 and 3 is about three feet, point 2 is a place where, as per site-plan (Exh.PD), the deceased was present, whereas at point 3 the presence of both the appellants has been shown, but the post-mortem report of the deceased indicates that there is no blackening, tattooing on the body of the deceased, which negates the ocular account that the deceased was fired at from a distance of three feet; that had the eye-witnesses been present at the spot, then the discrepancies or contradictions in the ocular and medical account would have not been there; that the deceased in fact received bullet injuries and not the pellet injuries; that the occurrence, as per prosecution took place on 21.12.2004 at 3.00 p.m. and autopsy as per post-mortem report (Exh.PA) was- conducted at 10.00 p.m. on the same night meaning thereby that the autopsy was conducted seven hours after the death of the deceased and the doctor has observed that the rigor mortis was fully developed, whereas the same doctor in his cross-examination has stated that the rigor mortis commenced after lapse of three hours and fully covered the dead body after lapse of twelve hours in its extreme and if it is accepted as correct then time of occurrence becomes 7.00 a.m., which negates the ocular account and to support his contention, he again refers to the book "Park Medical Jurisprudence" page 151; that since the doctor has stated that the rigor mortis was developed in its extreme, therefore, the occurrence in this case, took place on the early hours of 21.12.2004; that Muhammad Salem, Draftsman (P.W.2) has stated in his cross-examination that the
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place where the deceased fell after sustaining the injury is thirty feet from the place where he was hit, whereas Nazar Muhammad-complainant (P.W.7) in his cross-examination has stated that after receiving the injuries, there were drops of blood on the road and the police did not secure blood or blood-stained earth from the place where the deceased received fire-arm injury and in fact the police collected the blood-stained earth from the place where the deceased fell down, whereas Abdul Rehman (P.W.8), an eye-witness of this case, in his cross-examination was confronted with his statement (Exh.DA), wherein he stated that the police collected blood-stained earth from the place where the deceased was injured and according to Khuda Yar, SI (P.W.9), Investigating Officer of the case, in his cross-examination has stated that he recorded in his inspection note and the case diary that point 1 was the place where the deceased was injured and from where the blood- stained earth was secured and made into a sealed parcel, whereas in the site-plan (Exh.PD) point 1 is the place where from the blood-stained earth was taken into possession and it is also mentioned that it is the place where the deceased was injured and all these circumstances clearly establishes that in fact the deceased was fired at from a distance of 30 feet; that the prosecution case is that the deceased received two fire-arm shots and thereafter he went to the place, which is at a distance of 30 feet, which is not only improbable but is impossible because after receiving such injuries it was not possible for the deceased even to walk upto few paces; that in the F.I.R. there were four persons, namely, Muhammad Khan, Aamir Sohail (the appellants), Muhammad Khalid alias Abdul Khaliq, and an unknown person, who was subsequently identified as Muhammad Akram, through a supplementary statement, whereas Khuda Yar, SI (P.W.9) in his cross- examination admitted that according to his investigation there was another accused by the name of Shaukat involved in this case and as such the prosecution story regarding the number of assailants is not consistent: that the complainant (P.W.7) has given a specific reason for his presence at the place of occurrence, which is that he along with others was consulting each other regarding the sale of garden, but his presence is not, probable for the reasons that the complainant has no land or Dera near the place of occurrence, moreover he has already sold the orchard to one Manzoor Naee and had received Rs, 50,000/- and the other reason for showing his presence at the place was that they were waiting for the said Manzoor Naee, but Manzoor Naee has not been produced; that it was stated by the complainant (P.W.7) while appearing before the Court that Aamir Sohail alias Smail also gave butt blow of his gun, which hit on the right flank of the deceased, but there is no such injury as per post-mortem report; that it is a case of the prosecution that the deceased was riding a motorcycle, but no such motorcycle was taken into possession and even the Investigating Officer (P.W.9) has admitted that in his first inspection note there is no mention of the motorcycle; that the complainant (P.W.7) in the F.I.R. has stated that he was going to the police station, when he met the police official (P.W.9) and got his statement (Exh.PH) recorded and in such a situation it can easily be presumed that the F.I.R. was recorded after due deliberations and consultation that the complainant (P.W.7) in the F.I.R. stated that when the deceased was injured, he was taken to the hospital and in the way he succumbed to the injuries, whereas in his cross-examination has stated ' that after 15/20 minutes the doctor told him that his brother has expired, as such, this conduct of the complainant clearly show that he was not present at the spot; that in the F.I.R. the complainant simply stated that the shot made by Muhammad Khan-appellant hit on front of the chest of the deceased, whereas while appearing before the Court as P.W.7 he changed his version by stating that the fire shot by Muhammad Khan hit on the right side of his chest and that the shot fired by Aamir Sohail alias-Smail-appellant landed on the left side of his chest; that it is on the record that the deceased had enmity with many other persons, therefore,,there was a strong possibility of his being killed by his other opponents: that the motive alleged by the prosecution was that the deceased got a case registered under Zina Ordinance against Muhammad Khan-appellant, but the prosecution did not producp any,
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evidence in this respect, therefore, the motive is not proved; that admittedly there is enmity between Muhammad Khan-appellant, on one side, and the complainant and other PWs, on the other side; that the Investigating Officer (P.W.9) has admitted in his cross-examination that he did not send the fire-arm recovered from the appellant, to the Forensic Science Laboratory for report; that the other two co-accused, namely, Muhammad Khalid alias Abdul Khaliq, who allegedly participated in the occurrence, have been acquitted on the basis of same evidence and such evidence can only be relied upon qua the appellant, if there is strong corroboration, which is absolutely missing in this case. In support of his contentions, he places reliance on the cases- of Allah Bakhsh vs. The State (1969 PCr.LJ 1204) and Barkat Ali v. Muhammad Asif and others (2007 SCMR 1812). 10. Dr.Khalid Ranjha, the learned counsel for Aamir Sohail alias Smail appellant in Criminal Appeal No, 170 of 2006 argued that the eye-witnesses in this case, namely, Nazar Muhammad- complainant (P.W.7) and Abdul Rehman (P.W.8) are chance witnesses because the place of occurrence is not a normal place of their business or residence and they cannot be believed because of the following reasons:-- (a)they have stated that they were sitting there and were consulting each other regarding the sale of their garden to some merchant (Beopari), but the said merchant neither joined the investigation nor appeared before the Court; (b)the place where they were allegedly silting is not a sitting place in the normal routine, for such like activities; (c)though these witnesses have not specified the fruit regarding which they wanted to strike a deal but considering the area it could only be the Kinnon, Fruiter, `Musammi' etc. and that fruit is ripe in the month of December and usually such deals take place 2/3 months prior thereto and the complainant (P.W.7) has admitted that he received a sum .of Rs, 50,000/- three days after the occurrence and the deal was struck by Muhammad Iqbal deceased prior to his murder; (a) that the place of occurrence is admittedly at a distance of 10 acres from the residence of both the eye-witnesses, whereas their land is also at a distance of about ten acres from the place of occurrence; (e) the eye-witnesses have given a specific purpose for their presence at the spot and stated that they were consulting each other for the sale of orchard, but no such transaction took place, therefore, their presence at the spot is not established and for this purpose reliance is placed on the case of Sikandar v. The State (P.L.D. 1963 S.C. 17 at page 19). The learned counsel further argued that the eye-witnesses are not only chance witnesses but there are discrepancies in their statements also and the prosecution evidence is not of the quality which can be relied upon without any independent corroboration and the same is absolutely lacking in the instant case as weapons of offence allegedly recovered from the appellants were not sent to the Forensic Science Laboratory and there is no such report, moreover it was the case of prosecution that the deceased was on a motorcycle, when he was hit, but in the inspection note, the Investigating Officer has categorically stated that he did not mention the availability of any motorcycle and even subsequently no motorcycle was taken into possession. Similarly, case of the prosecution is that Aamir Sohail alias Smail-appellant along with his co-accused came at the spot in a 2-D Toyota Car and though a car has been taken into possession during the course of the investigation, through recovery memo. Exh.PF, but no witness has appeared from the prosecution side to state that this was the car which was used in the occurrence, therefore, there is absolutely no corroboration; that allegation against Aamir Sohail alias Smail appellant, as per prosecution was that he was armed with a .12-bore pump action gun with which he fired at the deceased, but during the course of investigation a rifle .44-bore (P3) was allegedly recovered from him, which was taken into possession through memo. Exh.PG; that in the F.I.R., three persons, i,e, Muhammad
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Khan, Muhammad Khalid and Aamir Sohail alias Smail and one unknown, who was subsequently identified as Muhammad Akram were nominated and the allegation against Muhammad Khan and Aamir Sohail alias Smail appellants was that they fired with their respective weapons at the deceased and the other two namely Muhammad Khalid and Muhammad Akram were alleged to have extended threats to the witnesses by raising their weapons, but later on they were acquitted by the learned trial Court and no appeal against their acquittal was filed; that the evidence qua those persons, named above, has been disbelieved by the trial Court, therefore, the same evidence cannot be believed qua the appellants unless and until there is a strong corroboration; that the medical evidence cannot be considered as corroborative piece for evidence as the same, at the most is a supporting evidence; that Khuda Yar, SI, the Investigating Officer, while appearing before the Court as P.W.9 has also admitted that there was another person involved in this case by .the name of Shaukat and he was not prosecuted and this makes the prosecution story as doubtful; that apart from the above named accused, three others, namely, Ahmad Khan, Muhammad Nawaz and Muhammad Riaz were also involved in this case and the allegation against them was that they abetted the crime, but all of them were acquitted by the trial Court and no appeal against their acquittal has been filed, therefore, all these circumstances create doubts in the prosecution story; that during the course of investigation, it was concluded that the allegation against Aamir Sohail alias Smail appellant to the effect that he gave a push to the deceased was incorrect, similarly the allegation that he fired at the deceased was also found incorrect; that the eye-witnesses have made dishonest improvements as in the F.I.R. the allegation against both the appellants was that their fire shots landed on the chest of the deceased but there was no mention of the injury, which was allegedly caused by Aamir Sohail alias Smail appellant with the butt of his weapon, but while appearing before the Court, the complainant (P.W.7) stated that the butt blow caused by the appellant hit on his right flank, whereas fire shot by Muhammad Khan hit on right side of the chest and the fire shot by Aamir Sohail alias Smail appellant hit on the left side of the chest, the eye-witnesses were duly confronted with their statements under Sections 154 & 161 Cr.P.C. and it was established that in their earlier statements, recorded by the police, this was not stated; that the deceased and the witnesses were involved in many cases, therefore, the possibility that the deceased has been killed by someone else cannot be ruled out; that the motive set out by the prosecution was that a case under Zina Ordinance was registered against Riaz, Muhammad Nawaz and Ahmad Khan accused but the prosecution has not produced any evidence to substantiate this fact. In support of his contentions, he places reliance on the cases of Sabir Hussain and 2 others v. The State (PLD 1968 Lahore 1344), .Mardan Ali v. Gulistan and others (1980 SCMR 889); Soomar & another v. The State (PLJ. 1990 Cr.C. (Karachi) 346) Zulqarnain v. The State (PLD 1994 FSC 34), Zafar Hayat v. The State (1995 SCMR 896), Muhammad Sharif and another v. The State (1997 SCMR 866), Muhammad Aslam Khan v. The State (1999 SCMR 172) and Khalid Javed and another v. The State (2003 SCMR 1419). 11. Mr. M. M. Alam Chaudhry, the learned Additional Prosecutor General Punjab assisted by Mr. Munir Ahmad Bhatti, the learned counsel for the complainant opposed these appeals on the grounds that the F.I.R. in the instant case, wherein specific roles have been described was lodged with promptitude as the occurrence took place at 3.00 p.m., whereas the matter was reported to the police at 4.30 p.m. and the formal F.I.R. was registered at 5.00 p.m.; that in the F.I.R., it was specifically mentioned that Muhammad Khan-appellant was armed with a .12-bore pump action gun and he fired with the same which hit on the front of the chest of Muhammad Iqbal deceased and the allegation against Aamir Sohail alias Smail appellant as per F.I.R, was that he was armed with a .12-bore pump action gun and he fired with the same which hit the deceased on his chest, whereas prior to the firing there is an allegation against Aamir Sohail alias Smail appellant, that he after alighting from the car, gave a push to the motorcycle of the deceased and also gave him
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butt blow because of which the deceased fell down; that the motive alleged by the prosecution was that a criminal case was got registered by Muhammad Iqbal deceased against Muhammad Khan-appellant, his father Ahmad Khan and his paternal uncle Riaz, which was considered as disgrace of those persons in the brotherhood as also in the area and the prosecution has proved the motive through evidence of Nazar Muhammad-complainant (P.W.7) and Abdul Rehman (P.W.8); that there is no improvement as far as motive part of the story is concerned because this occurrence took place on 21.12.2004, whereas the statement of the complainant (P.W.7) was recorded on 23.11.2005 and in the intervening period the conviction was recorded and the defence in the cross-examination has not challenged the fact that the conviction…
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