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Petitioner: Muhammad Darvaish & 2 others VS Respondent: The State
Court Name: Lahore High Court Judge(s): Ch. Abdul Aziz Title: Muhammad Darvaish & 2 others vs The State Case No.: (1) Criminal Appeal No.509-J of 2016 (2) Murder Reference No.315 of 2016 Date of Judgment:2019-04-08 Reported As:KLR 2020 Criminal Cases 177, 2019 PCRLJ 1086, PLJ 2019 Cr.C.1525, 2019 LHC
1294 Result: N/A Judgment Ch. Abdul Aziz, J. Muhammad Darvaish, Ahmad Khan and Muhammad Khan (appellants) along with two other co- accused, namely , Imdad Hussain and Ijaz Ahmad were tried by learned Additio nal Sessions Judge, Depalpur , District Okara in private complaint titled as "Mazhar Fareed v. Ahmad Khan & 5 others" for the offence under sections 302,324,148 & 149 PPC arising out of case FIR No.737/2010 dated 05.12.2010 registered under sections 302,324,148 & 149 PPC at Police Station Haveli Lakha, District Okara. The learned trial court vide judgment dated 26.05.2016 while acquitting co-accused Imdad Hussain and Ijaz Ahmad proceeded to convict and sentence the appellants in the following terms:- Under section 302 (b) PPC to suffer death sentence for the committing qatl- i-amd of Gohar Fareed and Muhammad Tufail on two counts. They were also directed to pay compensation of Rs.5,00,000/- each to the legal heirs of each of deceased under section 544-A, Cr.P.C. and in default whereof to undergo simple imprisonment for six months each. Challenging their conviction and sentence, Muhammad Darvaish, Ahmad Khan and Muhammad Khan (appellants) filed Criminal Appeal No.509-J of 2016 , whereas the trial court sent reference under section 374, Cr.P.C. which was numbered as Murder Reference No.315 of 2016 for the confirmation or otherwise of death sentence awarded to the afore-mentioned appellants. Both these matters are being disposed of through this single judgment. 2. Briefly stated the case of prosecution as unfolded by complainant Mazhar Fareed (PW.1) in FIR (Exh.PL) is to the effect that on 05.12.2010 at night he along with his son Gohar Fareed, Muhammad Tufail, Zafar Iqbal, slept at his Dhari to guard cattle and lamp was lightening over there; that at about 3:45 a.m., Ahmad Khan, Muhammad Darvaish, Imdad Hussain, Muhammad Khan son of Ghulam Fareed, all armed with guns .12 bore, Muhammad Khan and Ijaz Ahmad both armed with pistols .12 bore along with three unknown persons came there; that Muhammad Khan exhorted to teach a lesson for committing the murder of his brother , upon which Ahmad Khan
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made fire shot with his gun .12 bore which landed upon the abdomen of Gohar Fareed; that Darvaish Ahmad fired shot with his gun .12 bore which also hit on the abdomen of Gohar Fareed; that Muhammad Khan son of Muhammad Yousaf made fire shot with his gun .12 bore which hit Muhammad Tufail on his abdomen; that Imdad Hussain also fired with his gun .12 bore which hit Muhammad Tufail on his left elbow; that Ijaz Ahmad made fire shots from his pistol which landed on right and left thigh of Zafar Iqbal; that Muhammad Khan son of Ghulam Fareed made fire shot with his gun .12 bore which landed on the abdomen of Muhammad Tufail; that upon hue and cry Shabbir Ahmad and Muhammad Riaz attracted to the spot and witnessed the occurrence in the light of lamp; that Gohar Fareed and Muhammad Tufail succumbed to the injuries at the spot; that all the accused decamped from the spot while brandishing their weapons. Motive behind the occurrence statedly was that 1/4 years prior to the occurrence, Nazar Fareed was murdered and son of the complainant, namely , Gohar Fareed was challaned in that case. 3. The law was set into motion on the oral statement (Exh.P A) of Mazhar Fareed (PW.1) which he made before Muhammad Yaqub SI (CW.5) at Pull Molia Chishti. The statement (Exh.P A) was sent to the police station for the registration of formal FIR through Zafar Iqbal 86/C. Subsequent thereto, he visited the place of occurrence, prepared rough site plan (Exh.CW .5/A), secured blood stained earth of deceased Muhammad Tufail and Gohar Fareed as well as crime empties (P.1/1-2) vide memos Exh.PD, Exh.PE & Exh.PF . He also prepared injury statements of Muhammad Tufail and Ghulam Fareed (Exh.CW .5/C & Exh.CW .5/D) and their inquest reports (Exh.CW .5/E & Exh.CW .5/F). He also drafted applications (Exh.CW .5/G & Exh.CW .5/H) for the postmortem examination of the deceased persons and handed over the dead bodies to Faqeer Muhammad 279/C for escorting them to RHC Haveli Lakha. Muhamma d Yaqub SI (CW.5) arrested Ahmad Khan, Muhammad Darvaish and Muhammad Khan (appellants) on 04.01.201 1 who on 15.01.201 1 made separate disclosures and in pursuance thereof led to the recovery of their respective .12 bore guns (P.8, P.9 & P.10) which were taken into possession vide memos Exh.PH, Exh.PJ and Exh.PK respectively . 4. The police declared Imdad Hussain, Ijaz and Muhammad Khan not involved in this case and feeling dissatisfied from such investigation, Mazhar Fareed (PW.1) filed private complaint upon which the trial was held. Prosecution in order to prove its case against the appellants produced four PWs including Mazhar Fareed (PW.1) and Riaz Ahmad (PW.2), who narrated the eyewitness account of the occurrence. Learned trial court also examined five CWs including Dr.Ubaid Ullah Farooq (CW.2) who furnished medical evidence and Muhammad Yaqoob SI (CW.5) who investigated the case. The remaining witnesses, more or less, were formal in nature. 5. Dr. Ubaid Ullah Farooq (CW.2) remained posted with Dr.Shuja-ur- Rehman (since dead). According to Dr. Ubaid Ullah, on 05.12.2010, Dr. Shuja ur-Rehman conducted the medico legal examination of Zafar Iqbal and noted the following injuries:- (1). Three lacerated wound diameter 1.5 x 1 cm into going deep and blackening on middle side of middle of right thigh in area of 7.5 cm entry wound. The wounds have inverted margins. The probe passed through high entry and exit wound. Three lacerated wound of diameter about 1 x 0.8 cm everted margins in area of 6 x 5 cm on back of middle of right thigh (exit wound of injury No.1). (2). A lacerated wound 4 x 3 cm diameter , blackening, superficial skin deep only on front of lower part of left thigh, 16 cm above from left knee joint. (3). A lacerated wound 1 x 1 cm, blackening, inverted margins into deep going on anterolatral side of middle of left thigh 20 cm above from left knee joint entry wound. A lacerated wound 1.5 into 1 cm everted margins on anteromedial side of middle of left thigh (exit wound of injury No.3). The probe passed through thigh entry and exit wound. (4). A superficial lacerated wound 3 x 2 cm into deep blackening on middle side of upper of left thigh 25 cm from left knee joint. On 05.12.2010 at about 2:00 p.m. Dr. Shujah-ur-Rehman conducted the autopsy of Muhammad Tufail and observed the following injuries:-3
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(1). 6 lacerated wound of diameter about 2 x 1.5 cm with inverted margins with blackening in area 17 x 15 cm on lower part of left side of abdomen (entry wound). (2). A superficial lacerated wound 1.5 x 1 cm with skin deep blackening on left upper thigh on front side, 7 cm below from left antero superior , iliac spine (Ghair Jaifah Damiyah). (3). A superficial lacerated wound 1.5 x 1.2 cm blackening with skin deep located on back of left upper for arm. 5 cm below of left elbow joint. (Ghair Jaifah Damiyah). (4). A superficial lacerated wound 0.5 x 0.5 cm with mild blackening into skin deep on lateral side of left upper thigh, 8 cm below from injury No.2. (Ghair Jaifah Damiyah). On the same day at about 2:00 p.m., Dr. Shujah-ur-Rehman also conducted the postmortem examination of Gohar Fareed and noted the following injury:- (1). 7 lacerated wound of diameter about 2 x 1.5 cm with blackening, some superficial deep along with inverted margins on right side of abdomen in area of 20 x 10 cm (entry wounds). 6. After the conclusion of prosecution evidence, the learned trial court examined the appellants under section 342, Cr.P.C. who in response to question "why this case against you and why PWs have deposed against you", pleaded their false implication on account of previous enmity . Since the detail reply of the appellants is available on record, hence, for the sake of brevity it is not being reproduced in the instant para. The appellants neither made statements under section 340 (2) of Cr.P.C. nor produced any evidence in their defence. On the conclusion of trial, the appellants were convicted and sentenced as mentioned above, hence, the instant appeal and murder reference. 7. It is contended on behalf of the appellants that the case in hand though apparently is arising out of a promptly lodged crime report, however , the perusa l of record reveals otherwise; that the two eyewitnesses who appeared before trial court miserably failed to prove their presence at the crime scene and both of them on account of peculiar facts of the case were proved to be chance witnesses, thus were not worthy of any reliance; that two other eyewitnesses of the occurrence who though were present at the spot, however, their evidence was withheld by the prosecution with nefarious design of suppressing the actual facts; that the ocular account is altogether belied by the medical evidence on account of contradictions arising therefrom; that though the case is arising out of night time occurrence but the prosecution miserably failed to prove the source of light so as to exclude the possibility of mistaken identification; that regarding the same occurrence private complaint was filed by the brother of Tufail deceased against altogether a different set of perpetrators; that both the eyewitnesses as per their own admission were inimically placed against the appellants; that testimony of both the eyewitnesses was disbelieved to the extent of Imdad and Ijaz who were ascribed the role of active participation in the crime and they were acquitted from the case; that in such circumstances the statements of eyewitnesses can only be made basis for upholding the conviction of the appellants if strongly supported and corroborated from other circumstances; that the prosecution failed to get any corroboration from the motive which was found to have no truth in it; that even the positive report of PFSA regarding the weapons recovered from Ahmad Khan and Muhammad Khan appellants is not worthy of any reliance on account of multiple discrepancies and that though a strong and reasonable doubt emerges from the plain view of the prosecution case, however, its benefit was not extended to the appellants. With these submissions, it was urged that the appellants be acquitted from the case. 8. On the other hand, learned law officer assisted by learned counsel for complainant came forward with the submissions that the information of occurrence was conveyed to police within one hour of occurrence and such prompt reporting excludes the possibility of fabrication of facts and consultation etc; that all the three appellants are specifically nominated in the crime report and that too in reference to the roles performed by them during the occurrence; that the two eyewitnesses who appeared before the trial court were residents of the same vicinity , hence, their presence can in no manner be doubted; that the eyewitnesses of the occurrence, namely , Mazhar Fareed and Riaz Ahmad gave a confidence inspiring detail of the occurrence which was in conformity with the medical evidence; that though the occurrence took place in the night, however , since the source of light was reasonably explained by the prosecution, hence no inference adverse to the case of prosecution can be drawn therefrom; that even otherwise, both sides were well known to each other , hence, there was no question of any mistaken identification; that the prosecution case gets ample corroboration from the motive as well as from the
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report of PFSA, according to which the weapons recovered from Ahmad Khan and Muhammad Khan appellants were found matched with the crime empties secured from the spot and that since the appellants committed cold blooded murder of two persons, hence, deserve no mercy from this Court. With these submissions, it was prayed that the appellants' appeal be dismissed. 9. Arguments heard. Record perused. 10. A keen look of the record unveils that the case in hand pertains to an occurrence, having taken place on 05.12.2010 at about 3:45 a.m., during which two persons, namely , Gohar Fareed and Muhammad Tufail (deceased) lost their lives, whereas Zafar Iqbal and Shabbir Ahmad (injured) recei ved firearm injuries. The burden of these murders was placed on the shoulders of nine persons, out of whom six were nominated, whereas three were unknown. Out of the nominated accused persons, Ahmad Khan, Muhammad Darvaish and Muhammad Khan were real brothers, whereas Imdad and Ijaz were their nephews. We are not oblivi ous of the fact that the dilemma of false implication is unfortunately well embedded in our system of criminal investigation, prompting a litigant to implicate innocents along with guilty in homicide cases through tool of wider net. This menace calls for making appraisal of evidence in such cases with extreme guardedness. 11. The occurrence was witnessed by four persons, namely , Mazhar Fareed, Riaz Ahmad, Zafar Iqbal and Shabbir Ahmed, out of whom earlier two witnesses appeared during trial, whereas the remaining two were given up for various reasons. As per admitted facts, both the given up PWs i.e. Zafar Iqbal and Shabbir Ahmad received firearm injuries during occurrence, whereas Mazhar Fareed and Riaz Ahmad (PW.1 & PW.2) escaped unhurt. Shabbir Ahmad (injured) was given up as having been won over by the accused, whereas Zafar Iqbal (injured) was let off on account of being a deaf and dumb person. It is important to mention here that Shabbir Ahmad (given up PW) besides getting injured during occurrence, was also brother of one of the deceased, namely , Muhammad Tufail. To be precise, for establishing the guilt of perpetrators, nominated in the crime report (Exh.PL) and private complaint (Exh.PC), the prosecution banked upon the testimony of two eyewitnesses, namely, Mazhar Fareed and Riaz Ahmad (PW.1 & PW.2). From in depth scrutiny of record, it is found that both of them were related with Gohar Fareed (deceased) as father and maternal uncle. We are mindful of the fact that the testimony of a witness cannot be discredited merely on account of his relationship with deceased, however , if he is found locked in some rivalry or enmity of a long or short duration, personal vengeance or grudge arising out of some financial, political or severe family rift with the accused, he attains the status of interested or partisan witness. Since out of human frailty , it is expected that a witness entangled in abhorrence or grudge affair with his adversaries can tell lie to satisfy his grouse and can even go to the extent of implicating innocent persons in a crime , hence to attain credence, his testimony is required to be appraised with extreme circumspection and for that, matter is to be stringently evaluated on the touchstone of strong corroboratio n. In holding so, we are fortified from the observation of the Hon'ble Supreme Court of Pakistan expressed in the case titled as Umar Hayat and 3 others v. The State (1997 SCMR 1076 ) which is as under:- "It is a settled position of law that evidence of a partisan witness requires corroboration before the same is relied on for conviction. In the case of Muhammad Nawaz v. Abdul Khaliq and others (1971 SCMR 500) the prosecution witnesses were not only related inter se but they were also related with the dece ased and it was held that such evidence required some corroboration to ensure the witnesses were speaking the truth. " It insinuates from record that for various reasons, the two eyewitnesses were having extreme strained relations with the appellants. Firstly , it is noticed that the appellants and one Nazar Faree d, were real brothers, whereas Mazhar Fareed (PW.1) was their step-brother . Nazar Fareed was murdered on 23.02.2009 for which FIR No.73/2009 was registered at Police Station Haveli Lakha against Amin, Ikram, Hassan, Shah Behram, Habib and Muhammad Hussain. However , during investigation, Gohar Fareed (deceased) was found by the police to be actual culprit and accordingly was arrested in the case. Muhammad Yousaf, who was the father of appellants as well as Mazhar Fareed (PW.1) was big landlord of the village having sizeable agricultural land holding, who alienated 15-acres each in the names of his sons. Subsequent to the afore-mentioned murder, Muhammad Yousaf out of annoyance with Mazhar Fareed (PW.1) further transferred six acres of land in the names of appellants and due to foregoing reason Mazhar Fareed (PW.1) felt aggrieved. The quantum of rancor, due to the transfer of
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above said six acres of land in the names of his step-brothers, was so extreme that Mazhar Fareed (PW.1) could not hide it even during cross-examination and stated as under:- "It is correct that due to said reason I had NARAZGI, against Ahmad Khan, Muhammad Khan and Darvaish. It is incorrect that, again said I do not know as to whether my father Yousaf still owns 19 acres of land in his name as I am not on speaking terms with him. I several times demanded from my father that I should also be given equal share as to my brothers Ahmad Khan, Muhammad Khan and Darvaish accused. My father always refused to me. " From above, it manifests that Mazhar Fareed (PW.1) was inimically placed against appellants and such aspect makes him a partisan or interested witness. 12. It further spells out from record that crime scene was situated at a distance of 3 kilometers from the place of abode of both the eyewitnesses. In the days of occurrence, marriage ceremony of daughter of Mazhar Fareed, namely, Abida Bibi was in progress and on the eventful night, there was function of her Rasm-e-Hina. It will not be out of context to mention here that Abida Bibi was being married with Javed son of Mansha, who was none other than the nephew of Riaz Ahmad (PW.2). This fact gains more importance when seen in the context that Mazhar Fareed (PW.1) unambiguously admitted during cross-examination that the family of Javed along with Riaz (PW.1) had arrived in his house to celebrate the function which continued till late night. In such circumstances, the presence of both the eyewitnesses at a distance of 3 kilometers and that too, in a cattle shed on the pretext of guarding his animals appears to be a laboured story to justify presence at place of occurrence, more importantly when the services of Zafar Iqbal (injured) were hired for this very purpose. The meticulous examination of record gives a lead that the acclaimed presence of both eyewitnesses was not out of their routine, rather was a sheer coincidence. It needs no elaboration that presence of eyewitnesses at the spot is not to be inferred rather is to be proved by prosecution beyond scintilla of doubt. We have also taken note of the fact that in an occurrence, wherein two persons lost their lives and two others received firearm injuries from the weapons of common enemies, the eyewitnesses remained unhurt. In the absence of some confidence inspiring explanation regarding their presence at crime scene, the two witnesses are found by us to be chance witnesses and their testimony can safely be termed as suspect evidence. In arriving at such conclusion, we are enlightened from the case of Mst.Sughra Begum and another v. Qaiser Pervez and others (2015 SCMR 1142) wherein the Hon'ble Supreme Court of Pakistan while dealing with a case of chance witness observed as under:- "A chance witness, in legal parlance is the one who claims that he was present on the crime spot at the fateful time, albeit, his presence there was a sheer chance as in the ordinary course of business, place of residence and normal course of events, he was not supposed to be present on the spot but at a place where he resides, carries on business or runs day to day life affairs. It is in this context that the testimony of chance witness, ordinarily, is not accepted unless justifiable reasons are shown to establish his presence at the crime scene at the relevant time. In normal course, the presumption under the law would operate about his absence from the crime spot. True that in rare cases, the testimony of chance witness may be relied upon, provided some convincing explanations appealing to prudent mind for his presence on the crime spot are put forth, when the occurrence took place otherwise, his testimony would fall within the category of suspect evidence and cannot be accepted without a pinch of salt." 13. From review of record, it emerged that narrators of ocular account, besides being chance and interested witnesses, also failed to satisfactorily explain the source of light regarding an occurrence, which took place on a dark-pitched and foggy night. The eyewitnesses claimed to have captured the visuals of occurrence in the light of a lamp, which was never secured during investigation. Muhammad Yaqoob SI (CW.5) candidly conceded that no source of light was shown by him in the site plan (Exh.CW.5/A) as it was not pointed out by the eyewitnesses. The omission to prove presence of light at the spot is of immense importance when seen in the context that on the eventful night, it was fog all around. Since this is an important aspect, hence a portion from the cross-examination of Muhammad Yaqoob SI (CW .5) is being reproduced which is as under:- "After about one and half hour I reached at the place of occurrence because it was severe foggy night. "
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Failure to prove source of light in a night time occurrence is always considered fatal for prosecution case as it gives room to the possibility of false implication through mistaken identification. Reference in this regard can be made to the case of Gulfam and another v. The State (2017 SCMR 1189) wherein the Hon'ble Supreme Court of Pakistan observed as under:- "The occurrence in this case had taken place at about 11:45 p.m. during the fateful night and the source of light at the spot had never been established by the prosecution. It had been presumed by the courts below that as the occurrence had taken place at a medical store, therefore, some electric light must be available at the spot. The courts below ought to have realized that presumptions have very little scope in a criminal case unless such presumption is allowed by the law to be raised. " 14. The two eyewitnesses burdened Ahmad Khan and Darvaish (appellants) with the role of causing one firearm injury each on the abdomen of Gohar Fareed (deceased). The autopsy of Gohar Fareed was conducted by Dr. Shuja ur-Rehman but since he died during trial, therefore, in his place Dr. Ubaid Ullah Farooq (CW.2) appeared in the dock and furnished secondary eviden ce. Contrary to the afore-mentioned claim of receiving two firearm injuries by Gohar Fareed during occurrence, Dr. Shuja-ur-Rehman (CW.2) admitted that as per postmortem report, the deceased received only a single firearm injury . Similarly , Mazhar Fareed (PW.1) saddled Muhammad Khan son of Yousaf (appellant) and Muhammad Khan son of Fareed (PO) in crime report (Exh.PL) with role of inflicting injuries with .12 bore guns on the abdomen of Tufail (deceased), whereas, according to autopsy-report, only a single injury with blackening around its margins was noticed by the doctor on the given locale. In order to address this anomaly , the eyewitnesses made improvements in the private complaint as well as during trial and described the locale of injury caused by Muhammad Khan (appe llant) on the abdomen of Tufail (deceased) and stated the locale of injury inflicted by Muhammad Khan son of Fareed (PO) on the left thigh of Tufail. We are convinced that the change in version of witnesses was not an outcome of frail human memory , rather was deliberately made with a nefarious design of bringing their testimony in conformity with medical evidence, thus can in no manner be brushed aside. It is the purity of a testimony which leads a court to pronounce a guilty verdict and if such purity is polluted through dishonest improvements, the eyewitness loses his credibility rendering him not worthy of any credence. Reference in this regard can be made to the case reported as Sardar Bibi and another v. Munir Ahmed and others (2017 SCMR 344 ) wherein the Hon'ble 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 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…
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