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Official Citation: 2024 LHC 6372
Court / Jurisdiction: Lahore High Court
Year of Decision: 2023
Decision Date: 2023-12-31
Parties: Sadaqat & another, Habib Ullah, The State vs The State & another, Sadaqat JUDGMENT
Ruling Summary: This decision was rendered by the Lahore High Court on 2023-12-31, officially reported as 2024 LHC 6372. In this matter between Sadaqat & another, Habib Ullah, The State and The State & another, Sadaqat JUDGMENT, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2024LHC6372
Court Name: Lahore High Court Judge(s): Ch. Abdul Aziz, Sadiq Mahmud Khurram Title:Sadaqat & another, Habib Ullah, The State vs The State & another, Sadaqat
JUDGMENT
Reported As: 2024 LHC 6372 Result: Appeal Allowed Judgment
JUDGMENT Ch. Abdul Aziz, J. Sadaqat & Bilal (appellants) along with two others, namely Maula Bakhsh & Mewa involved in case FIR No.6/2020 dated 17.01.2020 registered under Sections 302,109 & 34 PPC at Police Station Hajipur, were tried by learned Additional Sessions Judge, Rajanpur. Trial Court vide judgment dated 03.03.2021 while acquitting the afore-said co-accused proceeded to convict and sentence the appellants in the following terms:- Under Section 302 (b) PPC to suffer death sentence as to'zir. They were also directed to pay compensation of Rs.2,00,000/- each under Section 544-A Cr.P.C. to the legal heirs of Nemat Ullah (deceased) and in default whereof to suffer 06-months simple imprisonment. Aggrieved by their conviction and sentence, Sadaqat & Bilal (appellants) filed Criminal Appeal No.180 2021, whereas complainant Habib Ullah (PW.4) filed Criminal Appeal No.247 of 2021 against the acquittal of Maula Bakhsh & Mewa (respondents No.2 & 3). Likewise, trial court sent reference under Section 374 Cr.P.C. which was numbered as Murder Reference No.07 of 2021 for the confirmation or otherwise of death sentence awarded to Sadaqat & Bilal (convicts). All these matters are being decided through this single judgment. 2. Succinctly stated the facts of the prosecution case as disclosed by Habib Ullah (PW.4) in F.I.R (Exh.PA/1) are to the effect that on 17.01.2020 he accompanied by his sons Nemat Ullah and Barkat Ullah as well as his brother Saif Ullah visited his land located in Madd Machhi Mauza Hajipur; that his son Nemat Ullah went there to visit his sister Mst. Nasreen through motorcycle; that he was
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present near Sewrah Chowk, alongside Barkat Ullah and Saif Ullah in proximity to his land; that at about 12:30 p.m., Nemat Ullah after visiting his sister arrived at Sewrah Chowk on the metalled road where he encountered Sadaqat, Bilal and Mewa all of whom were armed with .12 bore pistols; that all the accused declared their intention to ensure that Nemat Ullah would not survive and proceeded to encircle him as he dismounted from his motorcycle; that Sadaqat fired a shot from his pistol striking Nemat Ullah on the right side of his back; that subsequent thereto Bilal also fired a shot from his pistol which impacted Nemat Ullah on his left flank; that additionally Sadaqat fired another shot that struck the back of Nemat Ullah's head; that following the infliction of injuries, Nemat Ullah collapsed to the ground and at that moment Mewa fired a shot from his pistol hitting Nemat Ullah at the front of his abdomen resulting in the evisceration of his intestines; that Nemat Ullah succumbed to the injuries at the spot while the eyewitnesses attempted to catch the accused who subsequently threatened them with severe repercussions; that the reason for the incident is statedly linked to the fact that Nemat Ullah divorced Sadaqat's sister three months prior to the incident. 3. On 17.01.2020 following the receipt of information regarding the incident Abid Aziz SI (PW.10), along with other police personnel, made their way to the crime scene. On the way he encountered complainant Habib Ullah (PW.4) who got recorded his statement. This statement was subsequently transcribed into a formal complaint (Exh.PA) and forwarded to the police station through Muhammad Nadeem 1443/C for the registration of formal FIR. At the spot he prepared injury statement (Exh.PG/1), inquest report (Exh.PG) and handed over the dead body of Nemat Ullah to Ghulam Sarwar 635/HC for autopsy. He also secured blood stained earth and two crime empties of .12 bore pistol (P.1 & P.2) through memos Exh.PJ & Exh.PK. He further took into possession Honda 125- motorcycle upon which Nemat Ullah (deceased) was boarding through memo Exh.PL. Thereafter he prepared un-scaled site plan (Exh.PP). On 01.03.2020 he arrested Sadaqat & Bilal (appellants) who on 05.03.2020 made separate disclosures and in response thereof led to the recovery of pistols .12 bore (P.3 & P.4) which were taken into possession through memo Exh.PM & Exh.PN. On 09.03.2020 accused Maula Bakhsh and Mewa joined investigation after obtaining their pre-arrest bail, who during investigation were found not involved in the case. After recording the statements of witnesses under Section 161 Cr.P.C. and complying all codal formalities, he submitted the file to the relevant Station House Officer for the preparation of a report under Section 173 Cr.P.C. 4. The prosecution in order to prove its case against the appellants produced a total of eleven witnesses, out of whom Habib Ullah (PW.4) and Barkat Ullah (PW.8) provided eyewitness testimony, while Dr.Zia Ullah (PW.6) furnished the medical evidence and Abid Aziz SI (PW.10) conducted the investigation of the case. The other PWs predominately were formal in nature. 5. On 17.01.2020 at about 2:30 p.m. Dr.Zia Ullah (PW.6) performed the autopsy on Nemat Ullah and noted the following injuries:- (1) A lacerated wound of about 2 x 2 cm of circular shape on back of head on occipital region with inverted margins and burning and blackening of wound was present. This was an entry wound. (2-A) 9 or more small lacerated wounds of about 1 x 1 cm each on right side of back, medial to the middle of scapula bone. These were going skin deep with inverted margins and blackening and burning of wounds was present. These were entry wounds. (2-B) A lacerated wound of about 4 x 4 cm on abdomen just above on umbilicus with everted margins, the gut was coming out at the time of examination. This was an exit wound. (3) 5 or more small lacerated wounds of about 1 x 1 cm each on lateral side of left flank going deep with inverted margins, burning and blackening of wound was present. This was entry wound. According to the opinion of the doctor, the cause of death was attributed to injuries No.1 & 2 which resulted in rapid, excessive and irreversible blood loss leading to neurovascular shock. He further
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indicated that the duration between injuries and death was immediate while the time from death to postmortem examination was estimated to be 1 to 2 hours 6. After the conclusion of prosecution evidence, the learned trial court also examined the appellants under Section 342, Cr.P.C., who in response to question "why this case is against you and why the PWs have deposed against you" made the following reply:- "I have been falsely involved in this case. I have no concern with the occurrence. I was not present at the time and place of occurrence. Complainant party has concocted false story to falsely involve me in this case. All the PWs are interested and related inter se who have deposed falsely just to obtain money (Chatti)." The appellants did not choose to present themselves under Section 340(2) Cr.P.C., nor did they submit any evidence in their defence. Following the trial's conclusion, the appellants were found guilty and sentenced as previously mentioned, hence the instant criminal appeals and murder reference. 7. It is contended by the learned counsel for the appellants that the First Information Report in fact was registered with delay but through tampering with relevant registers it was made to look as having been lodged within one hour of the incident; that the eyewitnesses miserably failed to prove their presence at the spot who otherwise were chance witnesses; that the ocular account is in conflict with the medical evidence; that the eyewitnesses were disbelieved to the extent of co- accused Mewa who though was ascribed the role of inflicting firearm injury on the abdomen of deceased Nemat Ullah was acquitted from the case; that due to foregoing reason, no reliance can be placed upon the depositions of same eyewitnesses; that the witnesses contradicted each other on material points which further rendered them unreliable; that even the motive set out by the prosecution remained unproved as no evidence in its support was led; that though reasonable doubt about the involvement of appellants in the commission of crime surfaced during trial but its benefit was not extended to them and that since the conviction awarded to the appellants is contrary to facts of the case and law on the subject, thus is to be set-aside. 8. On the other hand, learned Additional Prosecutor General assisted by learned counsel for the complainant stoutly urged to uphold the conviction of appellants with the contentions that the information of crime was provided to police within 45-minutes which rules out the possibility of any consultation and false implication; that the eyewitnesses proved their presence at the spot beyond any doubt and provided confidence inspiring detail of the incident; that both the appellants are specifically ascribed the role of inflicting firearm injuries to the deceased; that the injuries observed by PW.6 Dr.Zia Ullah during autopsy are in absolute conformity with the narration of eyewitnesses; that there was no reason for the eyewitnesses to falsely implicate the appellants in the commission of crime by giving a clean chit to the actual offender; that the ocular account is amply supported from the duly proved motive and positive report of PFSA, according to which the crime empty recovered from the spot matched with the weapon recovered from one of the convicts, namely Bilal and that since prosecution fully proved its case thus the conviction awarded to both the appellants is to be upheld. 9. Arguments heard. Record perused. 10. Review of record reveals that on the afternoon of 17.01.2020 one Nemat Ullah aged about 35- years was ambushed, beset and assassinated by a bunch of assailants comprising upon Sadaqat, Bilal and Mewa. The murder incident was claimed to have been witnessed by Habib Ullah, Barkat Ullah and Saif Ullah who statedly were present at the crime scene even before the arrival of Nemat Ullah (deceased). One out of the afore-mentioned three witnesses, namely Habib Ullah (PW.4) imparted the details of crime to Abid Aziz SI (PW.10) through oral statement (Exh.PA) when the former interacted with the latter during routine patrol duty in the same neighbourhood. All the
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three perpetrators named in the First Information Report were arrested and put to trial but only Sadaqat and Bilal were handed down guilty verdict whereas Mewa earned acquittal. 11. During arguments the prompt registration of FIR was canvassed as the strong point of prosecution case which impelled us to dilate upon it before touching any other aspect of the file. The time of homicide incident was described as 12:30 p.m. by the eyewitnesses and the statement (Exh.PA) of Habib Ullah (PW.4) was penned down by Abid Aziz SI (PW.11) at about 1:15 p.m which 10- minutes thereafter was transcribed into formal FIR (Exh.PA/1). Being cognizant of the fact that the purity of criminal administration of justice including the police working has plummeted to a noticeable extent due to which the police station record is always prone to tampering, thus we pondered upon the acclaimed prompt registration of FIR with utmost circumspection. Unfortunately, it has become trend of police investigation to facilitate the complainant of a murder case by putting at halt Registers No.1 & 2 more commonly known as First Information Report Register and Station Diary respectively, so as to show a crime report though lodged with delay as having been promptly registered. Such courtesy is often extended as token of sympathy for the aggrieved family and on occasions by design hatched with sinister object of implicating innocent persons in the cases of unseen incident. The ongoing malpractice gives leverage to the prosecution for adjusting the statements of witnesses in accordance with medical evidence and even provides an opportunity to procure the attendance of persons, otherwise not available at the crime scene. The tampering made in the record to cover up the delay in reporting the felony to police can well be traced from the careful scrutiny of documents prepared on the first day of occurrence and most important out of them is the inquest report. According to Chapter-XXV Rule 35 of the Police Rules, 1934 the inquest report is drafted by the Investigating Officer after recording the statement of complainant and collection of relevant material from the crime scene. The inquest report comprises upon four pages and contains twenty four columns, besides that its last page is meant for mentioning the brief facts of the case emerging from the accusation set out by the complainant. Twenty four columns of the inquest report provide information about the place of occurrence, the time of incident, the names of witnesses, particulars of the deceased along with condition of the corpse, the nature as well as locales of injuries, the description of weapon used in the crime and above all the articles recovered from the spot. It is equally important to mention here that since the statement of at least the complainant is to be recorded before drafting of inquest report, thus the police officer gains knowledge about the identity of the culprits and the weapons used by them. The inquest report is to be prepared in duplicate by the carbon copying process in a prescribed format and is essentially required to be provided to the Medical Officer before the autopsy as is evident from the provisions of Chapter-XXV of the Police Rules, 1934 and the Instructions Regarding The Conduct Of Medco Legal And Postmortem Examination 2015 issued by the Surgeon Medico Legal Punjab, Lahore. As token of acknowledgement upon receipt of inquest report before the autopsy with all the columns filled properly, the medical officer is required to sign its each and every page. If the needful towards drafting of inquest report is done in accordance with aforementioned requirements, it excludes the possibility of tampering with record. While reverting back to the record of the case in hand, it is observed that not a single page of the inquest report (Exh.PG) carries signature of the medical officer. The things get more complex for the prosecution when seen in the context that Dr.Zia Ullah (PW.6) candidly conceded during cross-examination that no police paper was provided to him before the autopsy and for obvious reason it was not signed by him. The question of vital importance arises that if at all till the start of postmortem examination, the complaint (Exh.PA) and inquest report (Exh.PG) had been drafted then why these documents were not furnished to medical officer. Though Abid Aziz SI (PW.10) was confronted with the afore-mentioned shortcoming but he failed to put forth any legally acceptable reply. It is further noticed that the complaint (Exh.PA) was drafted at the crime scene and was
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dispatched to police station through Muhammad Nadeem 1443/C for the registration of formal FIR but neither he was cited as witness in the prosecution case nor was produced during trial as such. The claim of registration of FIR without delay is a factor which is not to be projected through rhetoric but is to be substantiated through impeccable evidence. Since according to the claim of the prosecution, Muhammad Nadeem 1443/C transmitted the complaint (Exh.PA) to police station at 1:15 p.m then the foregoing fact should have been proved by leading some evidence and not otherwise. Abid Aziz SI (PW.10) was duly cross-examined by the defence on the point but he remained speechless to explain the questioned omission of not citing Muhammad Nadeem 144/C as witness in the case. In the given circumstances, we are highly skeptical about the prompt registration of FIR rather the attending circumstances give a clue that the needful was done much after the postmortem examination. In support of the view so formed by us, reliance is placed upon the case reported as Hafeez Ahmed and others v. The State (2023 YLR 2503) wherein a Division Bench of this Court held as under:- "The medical officer is required to sign each page of the inquest report as token of its receipt before the commencement of postmortem examination. Needless to mention here that the requirements so mentioned above are primarily focused at ensuring that before the commencement of autopsy statements of eye-witnesses are on file, the kind of weapon used in the crime and locales of injuries inflicted by the accused have been conveyed to police so as to exclude the possibility of subsequent tampering." Further reference on the subject can be made to the cases reported as Muhammad Atif Naveed and another v. The State (2024 PCrLJ 1421) and Wasi Haider v. The State and another (2022 PCrLJ 1695). 12. The details of unfortunate saga leading to the assassination of Nemat Ullah were brought on record through Habib Ullah (PW.4) and Barkat Ullah (PW.8) who claimed to be in attendance at the fateful time. Before dilating in-depth upon the evidence of eyewitnesses a pressing need is felt to mention here the brief tale of incident narrated by them. According to complainant Habib Ullah (PW.4) he along with the witnesses and his slain son left the house to visit his agricultural land situated at the distance of 20-kilometers from the place of his abode. The three witnesses were seated on a Honda CG-125 motorcycle whereas Nemat Ullah (deceased) was on a separate bike. Nemat Ullah (deceased) firstly went to the house of his sister Mst.Nasreen w/o Fayyaz Ahmad and from there reached the place of occurrence which was situated at the distance of 2 1/2 squares from the agricultural land owned by his father. According to the theory of crime the assassins were already hiding at the place of occurrence and they unleashed their aggression upon Nemat Ullah (deceased) immediately after his arrival. In the background of facts mentioned above, it is noticed that Habib Ullah and Barkat Ullah (PWs 4 & 8) held Sadaqat, Bilal and Mewa responsible for actively participating in the occurrence which culminated in the murder of Nemat Ullah (deceased). To be precise all the three assailants were burdened with the specific allegation of inflicting firearm injuries to Nemat Ullah (deceased) at various locales. So far as Mewa is concerned, he was ascribed the role of inflicting a fire shot injury on the abdomen of Nemat Ullah (deceased) through .12 bore weapon. From the medical evidence furnished by Dr.Zia Ullah (PW.6) it turned out that though he observed a lacerated wound measuring 4 x 4 cm just above umbilicus but on account of everted margins described it as an exit wound of a firearm injury on the back. The afore-mentioned anomaly prevailed upon the trial court and accordingly while disbelieving the eyewitnesses to the extent of Mewa, acquitted him from the charge. The question of vital importance arises that to what extent the evidence of same set of eyewitnesses can be relied upon for upholding the conviction awarded to Sadaqat and Bilal (appellants). Unambiguously, both the eyewitnesses, namely Habib Ullah and Barkat Ullah (PWs 4 & 8) were proved to have deposed falsely on a material point, thus in our view it will be a fallacious
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approach to structure the conviction of Sadaqat and Bilal (appellants) upon the depositions of same witnesses. Inexorably both the eyewitnesses had no margin of error while describing the locale of firearm injury inflicted by Mewa (since acquitted). We have noticed that according to the eyewitnesses, after the receipt of three shots fired by the appellants, the victim Nemat Ullah fell on the ground and Mewa (since acquitted) fired shot from his .12 bore caliber weapon targeting abdomen of the victim while standing upon him but on the given locale Dr.Zia Ullah (PW.6) observed an exit wound. Reverting back to the query that when the eyewitnesses have been disbelieved to the extent of Mewa and that too for cogent reasons, then what will be the fate of their depositions with regard to the appellants. Unambiguously, the acquittal of Mewa has polluted the purity of the evidence given by both the eyewitnesses, thus conviction of the appellants can only be sustained on the same ocular account if it receives independent strong corroboration from some other source of irreproachable nature. Similar view was taken by the Supreme Court of Pakistan while dilating upon the case of Imtiaz alias Taj v. The State and others (2018 SCMR 344) having facts, more or less, of alike nature and an observation therefrom is referred hereunder for reference sake:- "It is not disputed that four co-accused of the appellant attributed effective firing at and specific injuries to Rustam Ali deceased had been acquitted by the trial court. The law is settled that if the eye-witnesses have been disbelieved against some accused persons attributed effective roles then the same eye-witnesses cannot be believed against another accused person attributed a similar role unless such eye-witnesses receive independent corroboration qua the other accused person and reference in this respect may be made to the cases of Ghulam Sikandar v. Mumraz Khan (PLD 1985 SC 11), Sarfraz alias Sappi v. The State (2000 SCMR 1758), Iftikhar Hussain and others v. The State (2004 SCMR 1185) and Akhtar Ali v. The State (2008 SCMR 6)." In fact, it is conspicuous from record that the afore-mentioned anomaly between medical and ocular evidence is not the only one rather there is another conflict between the two emerging from the statement of Barkat Ullah (PW.8). For the clarity sake we intend to restate here that Sadaqat (appellant) was ascribed the role of inflicting fire shot injury on the right side of the back of Nemat Ullah (deceased). Same stance was taken in the FIR as well as during trial by both the eyewitnesses in their examination-in-chief. During cross-examination of Barkat Ullah (PW.8) it emerged that in fact in his 161 Cr.P.C statement (Exh.DA) he described the locale of aforementioned injury on the left side of the back. Being cognizant of the importance of this fact we deem it appropriate to reproduce an extract from the cross-examination of Barkat Ullah (PW.8) which is as under:- "I got recorded my statement u/s 161 Cr.P.C to the I.O. I got recorded to the I.O that Sadaqat accused made fire shot on the right side of back. (Confronted with Ex.DA where left side is mentioned). It can inescapably be gathered that Barkat Ullah (PW.8) made an intentional improvement in his court statement to bring it in line with the medical evidence and to get rid of a variation with the opinion of the doctor which was arising out of his police statement regarding the locale of one of the injuries attributed to Sadaqat (appellant). We are constrained to hold that through such dishonest improvement he compromised his integrity which left a question mark upon the intrinsic worth of his deposition. The approach of the Supreme Court of Pakistan regarding material dishonest improvement is consistently against the maker of such statement, whereby the fresh facts introduced during trial are discarded from consideration. Reference in this context is made to the case reported as Sardar Bibi and another v. Munir Ahmed and others (2017 SCMR 344), wherein the Supreme Court of Pakistan observed as under:- "According to the doctor, there was only one fire-arm entry wound on the chest of the deceased Zafar Iqbal. In order to meet this situation, witnesses for the first time, during trial made omission and did not allege that the fire shot of Sultan hit at the chest of Zafar Iqbal, deceased. So the
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improvements and omissions were made by the witnesses in order to bring the case of prosecution in line with the medical evidence. Such dishonest and deliberate improvement and omission made them unreliable and they are not trustworthy witnesses." During arguments the learned APG and the learned counsel for the complainant made even their last ditch effort to persuade us for placing explicit reliance upon the depositions of eyewitnesses even in the wake of afore-mentioned glaring conflict between medical and ocular evidence. Such arguments were least impressive when tested on the touchstone of principles laid down for administering justice beyond speck of any doubt. The acceptance of the depositions of eyewitnesses even in the presence of a noticeable glitch between medical and ocular evidence amounts to discarding the statement of a medical expert without assigning any reasoning which perhaps will be nothing more than an injustice and besides that it will give leverage to false witnesses for securing conviction against innocent even after being contradicted by the medical evidence. Beyond everything, such practice on the part of the courts will give vent to frustrating the very purpose of collecting medical evidence in a charge pertaining to…
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