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Petitioner: Naveed Sadiq VS Respondent: The State
Court Name: Lahore High Court Judge(s): Sardar Ahmad Naeem, Muhammad Amjad Rafiq Title: Naveed Sadiq vs The State Case No.: Criminal Appeal No. 72 of 2019 and Murder Reference No. 30 of 2020 Date of Judgment:2022-05-10 Reported As: 2023 YLR 2562 Result: Appeal accepted
JUDGMENT
JUDGMENT SARDAR AHMED NAEEM, J.---Naveed Sadiq son of Muhammad Sadiq (appellant) along with Adeel Haider, Muhammad Siddique and Farooq Sadiq (since acquitted), accused of Private Complainant, under sections 302, 324, 337-D, 34, of the Pakistan Penal Code, 1860, Police Station Saddar Wah, filed by Naveed Sultan complainant, was tried by learned Additional Sessions Judge, Taxila for committing Qatl-i-amd of Anees Sultan and Waheed Sultan. During the occurrence Naveed Sultan also sustained injuries. The learned trial court vide judgment dated 05.01.2019, acquitted Adeel Haider, Muhammad Siddique and Farooq Sadiq of the charges, whereas, Naveed Sadiq (appellant) was held guilty, convicted and sentenced as under:-- i. Under section 302(b), P.P.C. for committing Qatl-i-Amd of Anees Sultan and sentenced to death with compensation of Rs.2,00,000/- under section 544-A, Cr. P.C. to the legal heirs of the deceased, in default thereof to further undergo simple imprisonment for six months. ii. Under section 302(b), P. P. C. for committing Qatl-i-Amd of Waheed Sultan and sentenced to death with compensation of Rs.2,00,000/- under section 544-A, Cr. P. C. to the legal heirs of the deceased, in default thereof to further undergo simple imprisonment for six months. iii. Under section 324, P. P. C. for causing injuries to Naveed Sultan and sentenced to ten years rigorous imprisonment with fine of Rs.1,00,000/ - to the injured, in default thereof to further undergo simple imprisonment for six months. All the sentences were ordered to be run concurrently and benefit of section 382-B, Cr. P. C. was extended. 2. Naveed Sadiq convict/appellant has lodged. the instant appeal against his conviction and sentences. Murder Reference No 30 of 2020, under section 374, Cr.P.C. for confirmation or otherwise,
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of death sentence of the appellant is also before us. This judgment will dispose of both. the above mentioned matters. 3. It was observed that initially FIR No.413, dated 05.11.2013 under sections 302, 324, 34, P.P.C. (Exh.PY) was registered on the basis of statement of Java4 Safdar (PW.13) at Police Station Saddar Wah. During investigation, the police declared Adeel Haider, Muhammad Siddique and Farooq Sadiq as innocent. The complainant levelled allegation of partiality against the police and being dissatisfied with the investigation, filed the private complainant (Exh.PX) regarding the said occurrence. 4. Brief facts of the case are that on 05.11.2013 at about 10:45, Naveed Sadiq (appellant) armed with pistol and along with his co-accused (since acquitted) committed Qatl-i-Amd of Anees Sultan and Waheed Sultan. During the occurrence, Naveed Sultan and one passerby, namely, Muhammad Hashim also sustained injuries. 5. Naveed Sadiq (appellant) was arrested in this case, on 19.11.2013, by Muhammad Shareef, S.I. (CW.1). 6. In the private complaint, after recording preliminary -evidence of the complainant the accused/ appellant and the acquitted accused were summoned by the learned trial court to face trial. Charge was framed against the accused persons on 14.02,2015, to which they did not plead guilty and claimed trial. 7. The prosecution, in order to prove its case, produced as many as fifteen witnesses. The ocular account, in this case, was furnished by Javed Safdar (PW.13), complainant of FIR and Naveed Sultan (PW. 14). 8. Medical evidence was furnished by Dr. Abu Hanifa M.O., T.H.Q. Hospital (PW. 11) who, on 05.11.2013 conducted postmortem examination on the body of Waheed Sultan and observed following injuries on his person: i. A gun shot entry wound .5 x .5 cm on right side of front of chest, 10 cm away from right nipple. Edges inverted going inside and forward; ii. A gun shot exit wound 1 x 1 cm on right side of back of chest. 7 cm away from mid line. Edges evened; iii. A gunshot entry wound .5 x .5 cm on posterial aspect of left shoulder. Edges inverted going inside and forward; iv. A gunshot exit wound 1 x 1 cm on lateral aspect of right side of chest in mid axillary line, 10 cm away from right axilla. Edges everted. Cause of death in this case was shock and haemorrhage due to injury to vital organs like liver and right lung, sufficient to cause death in ordinary course of nature. Probable time elapsed between injury and death was 30 minutes and between death and postmortem was within three hours. On the same day Dr. Abu Hanifa (PW.11) also examined dead body of Anees Sultan (deceased) and observed following injuries on his person. i. A gunshot entry wound .5 x .5 cm on left shoulder 3 cm away from left shoulder joint. Edges inverted going inside and forward. ii. A gunshot exit wound 1 x 1 cm on left lateral aspect of chest 14 cm away from left nipple. Edges everted. iii. A gunshot entry wound 1 x 1 cm on left renal area (lumber region) 17 cm away from mid line. Edges inverted going inside and forward. iv. A gunshot exit wound 1.5 cm x 1.5 cm on back of chest (right side), 15 cm away from right shoulder joint. Edges everted. v. A laceration 5 x 3 cm on left knee joint. vi. A laceration 4 x 2. cm on posterolateral aspect of left knee joint. Cause of death in this case was shock and haemorrhage due to injury to vital organs like heart and left lung which is sufficient to cause the death in ordinary course of nature. Probable time that
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elapsed between injury and death was 30 minutes and between death and postmortem was within 4 hours. Sajid Mehmood (PW.1) identified the dead body of Anees Sultan. Tariq Mehmood (PW.2) identified the dead body of Waheed Sultan. Aurangzeb (PW.4) was witness of recovery of pistol (P.2), magazine (P.3) got recovered by the appellant from his residential room. Khurram Shahzad (PW. 5) prepared scaled site plan (Exh.PE/ 1-2). Muhammad Waseem 5329/ HC (PW.6) received one sealed parcel said to contain pistol 9mm on 28.11.2013 for safe custody at malkhana and handed over to Muhammad Ayub constable (PW. 12) on 09.12.2013 for its transmission to the office of Punjab Forensic Science Agency. On 05.11.2013 Kaleem Akhtar 2104/ HC (PW.7) received two sealed parcels said to contain blood stained cotton and seven crime empties of .9mm pistol from Muhammad Sharif S.I. and handed over to Muhammad Amin on 13.11.2013 for their transmission to P.F.S.A. Fayaz Haider (PW.8) escorted the dead body of deceased Waheed Sultan to THQ Hospital for postmortem. Sakhawat Hussain (PW.10) escorted the dead body of Anees Sultan for postmortem at T.H.Q. Hospital Taxila. Muhammad Ayub 808/C deposited sealed parcel said to contain .9mm pistol along with the magazine in the office of Punjab Forensic Science Agency on 09.12.2013. Muhammad Bakhsh S.I. (PW. 15) chalked out the formal F.I.R. (Exh.PY). The learned trial court also examined Muhammad Shareef, S.I. (CW.1), Muhammad Tufail, S.I. (CW.2) and Muhammad Ameen 3626/C as CW.3. 9. Learned counsel for the complainant gave up Zulfiqar Ali, Taj Muhammad, Iftikhar Ahmad and Dr. Muhammad Masood M.O. D.H.Q being unnecessary and Nasir Iqbal being won over. Learned Deputy District Public Prosecutor gave up Khalid Jameel being unnecessary and after tendering into evidence report of Forensic Serology Analysis as Exh.PZ and firearais and Tool Marks as Exh. PAAA closed the prosecution evidence. 10. The statement of the appellant under Section 342, of t e Code of Criminal Procedure, 1898, was recorded. He refuted the allegations levelled against him and professed his innocence. Responding to question "Why this case against you and why the prosecution witnesses have deposed against you?", the appellant replied as under: "I am innocent and have been falsely involved in the instant case. All the witness are close relative inter-se. No person from the place of occurrence i.e. market, ever supported the prosecution version. Even no person of the vicinity of the occurrence is a witness in the case in any respect. The occurrence took place in front of a market, having numerous shops and rush of public on the road. The complainant party have also enmity with different people. In the investigation it has been confirmed that occurrence was committed by one un-known person. Even the injured PW Hashim who belongs to the complainant brothers also stated in his statement to the Investigating Officer, on the day of occurrence, that there was only one mart who made firing. So the version of the prosecution was found false during investigation. The motive as alleged was also not proved. Neither any motorcycle was recovered nor produced by the complainant. Nobody is witness of the motive occurrence nor anybody pointed the said place during investigation. The report of the PFSA also negates the prosecution story and confirms the findings of the investigation. All my co- accused were found innocent and nothing was recovered from them during investigation to connect them with the occurrence. Due to political rivalry I, and others relation have been falsely involved in the instant case. As the complainant parry belonged to the then sitting MNA and MPA, whereas we opposed them politically. There are material contradiction in the statement of the witnesses which renders the entire prosecution story doubtful. There is no independent corroboration in support of the false accusation. Eye-witnesses were not present at the place of occurrence nor witnessed the occurrence. There is no enmity with complainant party and my brother to restrain him from pursuing my case."
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The appellant neither appeared as his own witness under section 340(2), Cr.P.C. nor produced any evidence in his defence. 11. The learned trial Court after evaluating the evidence and considering the merits of the case, held the appellant guilty, convicted and sentenced him as detailed above. Hence, this appeal. 12. Learned counsel for the appellant contended that the prosecution case. was replete with doubts; that version of the complainant was contradicted by the medical evidence; that the ocular account was full of contradictions/diserepancies regarding salient features of the case, in particular, mode and manner of occurrence; that no independent witness was cited by the complainant, who also failed to establish his own presence on spot at the time of occurrence; that best evidence in this case was withheld by the prosecution, thus, necessary inference under Article 129(g) of Qanun-e-Shahadat, 1984 must be raised; that majority of the accused earned acquittal on the basis of same evidence and as no independent corroboration was forthcoming on record, thus, the appellant was also to be treated alike; that the prosecution miserably failed to prove motive and that the prosecution failed to prove its case against the appellant beyond reasonable doubt and every doubt even slightest is always resolved in favour of the accused. 13. Learned Deputy Prosecutor General assisted by the learned counsel for the complainant opposed this appeal with vehemence and submitted that it was a daylight occurrence, the parties were known to each other and there was no question of mistaken identity; that the witnesses have assigned specific role to the accused nominated in the FIR as well as in the private complaint; that version of the complainant was supported by motive, medical evidence and recovery of weapon found wedded with some crime empties secured from the crime scene; that the contradictions/ discrepancies hinted at by the learned counsel for the appellant were not fatal to the prosecution; that injure-eye-witnesses had no axe to grind against the appellant and they firmly withstood the test of cross-examination. Add that the prosecution has proved its case against the appellant up to the hilt, thus, appeal deserves dismissal. 14. We have given anxious considerations to the arguments advanced by the learned counsel for the parties and have paused the record with their able assistance. 15. The occurrence in this case took place on 05.11.2013 at 10:45 a.m. within the area of Mouza Losar Sharfu. During the occurrence, Anees Sultan and Waheed Sultan lost their lives. Whereas, Naveed Sultan and Malik Muhammad Hashim sustained injuries. The incident was reported by Javaid Safdar (PW.13). In the crime report appellant was nominated along with Adeel Haider and Muhammad Siddique and an unknown accused, later on nominated as Farooq. The Investigating Agency did not confirm the participation of the co-accused of the appellant including Adeel Haider, Muhammad Siddique and Farooq Sadiq in the occurrence and declared all the three as innocent, thus, a private complaint was filed by the injured witness, namely, Naveed Sultan (PW.14). 16. The allegations levelled in the FIR as well as in the private complaint were specific. The injuries sustained by both the deceased were attributed to the appellant. Whereas, Malik Muhammad Hashim (given up PW) and Naveed Sultan (PW.14) sustained injuries at the hands of Adeel Haider. 17. All the PWs, except the official witnesses were closely related to each other and details of their relationship find mentioned in the statement of Javaid Safdar (PW. 13), which can advantageously be reproduced hereunder: "Deceased Waheed Sultan is my real brother whereas the injured Naveed Sultan is my nephew. PW Khalid Jameel is also my brother. PW Iftikhar is also my relative. PW Aurangzaib is also my brother. Fayyaz is my cousin. Injured Hashim is not from our baradari" 18. The motive behind the occurrence was an altercation between the appellant and one of the deceased,. namely, Anees Sultan due to the collusion of their motorbike about 30 minutes prior to this occurrence.
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19. The occurrence took place opposite to Babar Market situated in Mouza Losar Sharfu. Javaid Safdar (PW.I3) was told about the incident of motive by Anees Sultan (deceased), who left for Babar Market and the other deceased Waheed Sultan also reached there on a motorbike but the appellant along with his co-accused fired at both the deceased and Adeel Haider (acquitted co- accused) attempted at the lives of injured above mentioned. 20. It is advisable at this stage to examine and analyze the chain of events in this case in order to arrive at some conclusion. It was a daylight occurrence and the parties were known to each other but the prosecution witnesses failed to establish their presence at the crime scene as their version was not inconsonance with the material collected during the investigation. First of all, it was observed that after the occurrence, the injured, both, were shifted to hospital of Pakistan Ordnance Factories (POF). The record divulged that their death certificates were issued from said hospital. Whereas, Naveed Sultan was shifted to T.H.Q. Taxila by (PW.13) who, on the one hand, has shown ignorance regarding shifting of Malik Muhammad Hashim (injured-given up PW.) to hospital and, on the other hand, admitted that he dispatched both the injured to T. H. Q. Taxila. At this stage it may be mentioned that prosecution attempted to make out a case that Malik Muhammad Hashim was a passerby and as he was won-over by the defence, thus, was given up. However, he sustained firearm injury and was also examined under section 161, Cr.P.C. as admitted by CW.2 and PW. 13. 21. The complainant, namely, Naveed Sultan during the cross-examination came out with different/ ambiguous version. He claimed that he was semi unconscious and remained in hospital for long time. He remained admitted in D.H.Q. Hospital, Rawalpindi and again admitted in Christian Hospital, Taxila. Then he categorically mentioned in his statement that he remained in the hospital for one month. He was discharged from hospital on 28.11.2013 and his statement was recorded under section 161, Cr.P.C. on 05.12.2013 but record was mute if he was incapable of making statement. The Investigating Officer (CW.1) admitted during cross-examination that he did not enquire from the Medical Officer through a formal application if the complainant/injured was capable of making statement. Assuming for the sake of arguments that the injured remained in hospital being semi unconscious and was unable to move but nothing was brought on the file that he was incapable to make a statement. This is also belied by another fact as the Medical Officer (PW.11) admitted during the cross-examination that he received an application of Naveed Sultan forwarded by the Court whereby the injured requested for issuance of referral slip. He gone on to add that the complainant intended to get his complete medical examination including X-rays etc for production of evidence in the Court. A particular question was asked by the Court, to PW. 11 that was there any order by the Court for re-examination of the injured Naveed Sultan and responding to court question, the Medical Officer replied that the application produced before him by the injured for his re- examination was without order of the court and that it was dispatched and addressed to the Medical Superintendent. No material was available on record as to how the injured/ deceased were shifted to hospitals. Had the eye-witnesses been there, they could have confidently described about the shifting of the deceased/ injured. The complainant sustained firearm injury at the hands of Ali Haider hitting on his back, chest and different parts of body. The Medico Legal Report of the injured (Exh.PU) suggested twelve injuries on his person but the story described by the complainant PW.14 does not fit in the probabilities and his presence at the crime scene at the time of occurrence is not confirmed by the facts and circumstances of the case. It is settled by now that injury on a witness is only indication of his presence at the spot but is not affirmative proof of his credibility and truthfulness. It is not a universal rule that each and every word coming from the mouth of injured person is truth. This Court in case of "AItaf Hussain and 4 others v. The State" (PLD 2000 Lah. 216) observed as under:
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"22. Believability and acceptability of a witness depends on numerous factors being injured is just one of them. The injury on the person of a witness does not transform his nature, or his attitude, or mentality. This would make him more vindictive. The injury primarily proves one fact only, and that is, that he was present at the scene of crime but it by no stretch of imagination proves him to be right of truthful. Where a witness is biased, and inimical towards the opposite party which is the case here, his testimony has to be scrutinized with care and corroboration of prosecution case in all of its material aspects is required. In Jahangir Hayat v. The State (PLD 1999 Lah. 285) the principles and guidelines for assessment of evidence were stated to be that different constituent factors of prosecution case must support each other and no single factor would suffice for recording conviction unless the same was corroborated in material respects by other constituent factors of elements. In serious cases entailing harsh sentences a single factor in itself would provide too narrow a foundation to base conviction of an accused. Evidence of witnesses of fact who were injured in the incident is just one factor or facet of prosecution case. Viewed in isolation, it might give impression of a plausible story to an untrained mind, but examined in a proper ambience its seamy side would become palpable immediately...." Mere presence of injuries would not stamp that he is a truthful witness. His testimony is to be tested and appraised on the principles applied for appreciation of any other prosecution witness. A similar question came up for consideration before their lordships in "Amin Ali v. The State" (2011 SCMR 323), the relevant observations of their lordships can also be reproduced hereunder: "12. Certainly, the presence of the injured witnesses cannot be doubted at the place of incident, but the question is as to whether they are truthful witnesses or otherwise, because merely the injuries on the persons of P. Ws. would not stamp them truthful witnesses..." 22. The statement of the Medical Officer further suggested that the arrival time of Naveed Sultan was 12:30 p.m. and the probable duration of the injuries was 30 minutes, which reflected that he sustained injuries at about 12:00 (noon), whereas, the occurrence as stated by the PWs took place at 10:45 a.m. The Medical Officer gone on to add that all the injuries of the complainant have different size/ shape (dimension) and he was referred to D.H.Q. Hospital Rawalpindi and then after consulting the operation notes he was unable to comment upon the recovery of any foreign body from his body. During postmortem examination, the Medical Officer observed 04 and 06 gunshot wounds on the body of Waheed Sultan and Anees Sultan, respectively. The dimension of the injuries" sustained by both deceased were different suggesting usage of different weapons during the occurrence, also admitted by the Medical Officer during his cross-examination. It was further admitted by the Medical Officer that dimension of the injury No.1 in Medico Legal Report of Malik Muhammad Hashim (Exh.PS) was different from all other injuries mentioned in Exh.PU, Exh.PK and Exh.PO. Though the postmortem of the deceased, both, were not conducted with inordinate delay but the following excerpts from the statement of PW.11 can advantageously be reproduced: "It is correct that the police papers were not received in the hospital along with the dead bodies. It is correct that police papers of both the dead bodies were received at different times and after the dead bodies reached in the hospital. In Exh.PO the dimension of exit wounds injuries No.2 and 4 are different. It is correct that injuries Nos. 5 and 6 in Exh.PO are through blunt weapon." 23. The critical condition of the complainant was asserted by the PWs during trial but no evidence whatsoever was brought on the file to confirm his incapability to make any statement till 05.12.2013 as described by Muhammad Sharif (CW.1). He further admitted that Naveed Sultan was discharged on 27.11.2013 and this fact was not reported to him by the prosecution witnesses. However, the statement of the injured Naveed Sultan was recorded by the Investigating Officer by reproducing his statement printed on a computer-generated paper, which is also open to objection. No convincing or plausible explanation was forthcoming on record for belated recording of the
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statement of complainant (Naveed Sultan) under section 161, Cr.P.C., which makes the prosecution story doubtful. Dealing with similar preposition in case titled "Syed Saeed Muhammad Shah and another v. The State" (1993 SCMR 550), the apex Court ruled: "28. ...In this case unsatisfactory explanation which is not. substantiated can be equated with no explanation. In the case Sikandar v. The State (PLD 1963 SC 17) there was controversy as to when police statement of eye-witness was recorded and in that regard there was choice between version of eye-witness and Investigating Officer. It was held that controversy is to be resolved on the basis of rule that benefit of doubt must be given to the accused hence evidence, of that eye- witness was viewed with doubt. In the case of Ismail and others v. The State (1983 PCr.LJ 823) evidence of witnesses was ruled out of consideration on the ground that their police statements were recorded after 8 days and prosecution offered no explanation. In the case of Sirajuddin v. Kala and another (PLD 1964 SC 26), evidence of witness was held to be not reliable for the reason of patent doubt as to the time as he first appeared before the police for his statement." 24. As mentioned above, majority of the accused have earned acquittal. They were acquitted by the learned trial court on the same set of evidence. It is also settled law that if the majority of the accused nominated in a case are acquitted on account of their false implication by the eye- witnesses then allegations of the remaining accused on the basis of same evidence cannot be sustained without independent corroboration. In this respect, reliance is placed on "Iftikhar Hussain and another v. State" (2004 SCMR 1185), "Sarfraz alias Sappi and 2 others v. The State" (2000 SCMR 1758) and "Akhtar Ali and others v. The State" (2008 SCMR 6). 25. Now it is to be seen on the touch stone of the law declared in the above precedents if the independent corroboration was forthcoming on record. The witnesses failed to establish their presence at the crime scene and witnessing the occurrence. The motive is not a component of murder as it is hidden deep in the mind of the perpetrator of the crime and even…
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