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Petitioner: MUHAMMAD YASEEN and anothers VS Respondent: The STATE and others
Court Name: Lahore High Court Judge(s): Abdul Sami Khan, Mazhar Iqbal Sidhu Title: MUHAMMAD YASEEN and anothers vs The STATE and others Case No.: Criminal Appeal No,271 and Criminal Reviion No,155 of 2010 Date of Judgment:2012-06-21 Reported As: 2013 P Cr. L J 153 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' ABDUL SAMI KHAN, J.---This single judgment shall dispose of Criminal Appeal No,271 of 2010 filed by Muhammad Yaseen (appellant) against his conviction whereas Criminal Revision No,155 of 2010 filed by Muhammad Fazil complainant for enhancement of sentence awarded to Muhammad Yaseen (appellant) from life to death, as both these matters arisen out of one and the same judgment. 2. Muhammad Yasin appellant, along with Allah Yar, Muhammad Akram, Allah Bakhsh and Abdul Rehman was tried in a private complaint under sections 302, 148, 149, P.P.C. Filed by Muhammad Fazil complainant being dissatisfied by the police investigation by the learned Additional Sessions Judge, Khanewal, who vide judgment dated 28-1-2010 convicted Muhammad Yasin appellant as under:-- "Convicted under section 302(b), P. P. C. And sentenced to imprisonment for life as Ta'zir. He was also directed to pay compensation amount of Rs,200,000 under section 544-A, Cr.P.C. To the legal heirs of the deceased Ghulam Jafar, in case of default, to further undergo Simple Imprisonment for six months. Benefit of section 382-B, Cr.P.C. Was extended to the convict." ' However, Allah Baksh, Allah Yar, Muhammad Akram and Abdul Rehman, co-accused of the appellant were acquitted. 3. The story as set forth by Muhammad Fazil complainant in a private complaint is that he along with Muhammad Aslant and Muhammad Yaseen was standing outside the Hotel of Siddique, Ghulam Jaffar also came there and went towards East of the Chak. In the meanwhile, Muhammad Akram (accused) armed with .30 bore pistol and Muhammad Yaseen (accused) armed with repeater while riding on a Honda motorcycle, red colour came there and went behind Ghulam
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Jaffar. The complainant and his companion saw in the light of electric bulb that Muhammad Aslam, Muhammad Yaseen, Muhammad Akram raised lalkara, whereupon Allah Yar,. Allah Baksh armed with .12 bore gun and Abdul Rehman respondent No,5 armed with .30 bore pistol emerged there and by raising lalkara to kill Ghulam Jaffar, all the accused persons started firing with their respective weapons. Shot fired by Muhammad Yaseen hit on the chest of Ghulam Jaffar who fell down and succumbed to the injuries. All the accused while firing escaped from the place of occurrence. ' Motive-behind the occurrence as stated by the complainant is prior to the occurrence Khizar Hayat made theft in respect of cotton sticks and due to that an altercation took place between Ghulam Jaffar (deceased) and Khizar Hayat. The deceased slapped Khizar Hayat, due to that grudge, = all the accused with their common intention committed the murder of Ghulam Jaffar. Initially, Criminal case F.I.R. No,322 of 2004 under sections 302, 148, 149, P.P.C. Was registered at Police Station Tulamba. The complainant being dissatisfied with the investigation of the police, filed the instant private complaint against the accused mentioned above. 4. The accused were summoned by the learned Additional Sessions, Khanewal to face trial. Charge under sections 302, 148, 149, P.P.C. Was framed against the accused on 19-5-2007, to which, they pleaded not guilty and claimed trial. In order to prove its case, Muhammad Fazil, complainant examined as many as eight witnesses. The trial Court summoned Muhammad Saad Ullah Khan S.P. As C.W.1, Muhammad Afzal Inspector as C.W.2, Abdul Majeed Inspector as C.W.3. 5. P.W.4 Dr. Shahid Hussain Shah, Medical Officer, R.H.C. Tulamba, on 5-11-2004 conducted the post mortem examination on the dead body of Ghulam Jaffar and found following injuries on his person:-- (i) A lacerated circular wound with inverted edges 3/4 x 3/4 cm going on the left side of the neck 3 and half cm on the left clavicle bone. (ii) A lacerated circular wound with black margins and inverted edges 3/4 x 3/4 cm on the front of right chest 5 cm above the right nipple. Wound was going deep into the chest. (iii) A lacerated circular wound with black margins and inverted edge 3/4 x 3/4 cm going deep into the chest on the front of right chest 3 cm away towards right side from midline. (iv) A lacerated circular wound with black margins and inverted edges 3/4 cm x 3/4 cm going deep on the right side of lower abdomen 4 cm above the umbilicus 15 cm above the right iliac bone. (v) A lacerated wound with inverted edges 3/4 x 3/4 cm on the front of right chest on the right clavicle bone. Wound was deep. (vi) A lacerated wound with inverted edges 3/4 cm x 3/4 cm gone deep on the outer side of right shoulder, 3 cm below the head of humerus bone. 6. In his opinion, death occurred due to shock and haemorrhage (internal and external) which was due to injury to both lungs, all the injuries were ante-mortem. Injuries Nos.1 to 4 were collectively dangerous to life. ' Probable time that elapsed between injuries and death was 5 to 10 minutes and between death and post mortem was 12 to 13 hours. 7. P.W.1 Muhammad Fazil is the complainant of this case who fully supported the contents of the private complaint. P.W.2 Muhammad Yaseen is the eye-witness of this case who supported the version of the complainant. Remaining P.Ws. Are formal in nature. 8. C.W.1 Muhammad Saad Ullah Khan (Retired S.P.) C.W.2 Muhammad Afzal Inspector, and C.W.3 Abdul Majeed Inspector had investigated the case. The complainant Muhammad Fazil on 21-12- 2009 had closed the evidence. 9. The statement of Muhammad Yaseen appellant was recorded under section 342, Cr.P.C. In reply to the question why this case against you and why the P.Ws. Have deposed against you, he replied
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as under:-- "This case is a false and fabricated. The P.Ws. Are inter se related, interested and inimical towards me and my co-accused. They have deposed falsely due to enmity and party faction. The motive is totally false and fabricated. It was also found false during investigation. The complainant party could not prove it during investigation. Rather it was found to be false and fabricated. C. W.2 thoroughly investigated the case, confronted the parties with each other at the spot and at the police station. He also examined many impartial and respectables of the locality who all stated that the accused were innocent and complainant had falsely implicated them in the case due to party faction. The complainant party could not controvert it. Then DSP, Mianchannu also verified the investigation conducted by C. W.2. He also visited the spot and examined both the parties at the spot.. He not only declared all the accused as innocent but also held in the investigation that Ghulam Jaffar died due to negligent firing of the complainant party and the person who fired may be traced from the complainant party. Then the local police wanted to investigate on this point. The complainant party immediately got investigation transferred to save their skin. C. W.1 only investigated the case one sidely. The complainant party could not prove its case but in spite of that in connivance with the complainant party he asked that the accused be challenged to please the complainant party. He did not investigate the case about motive. Then the case was investigated by Crime Branch under the order of Additional 1G Investigation Multan. C. W.3 Abdul Majeed Inspector investigated the case under the supervision of SSP, Crime Multan who visited the spot, confronted both the parties with each other. He also examined many respectables of the locality. The complainant party could not prove the case against the accused. Even the motive was also found to be incorrect. Then SSP Crime, Multan also investigated the case at the spot. He also found all the accused to be innocent and that the motive was totally false. He also observed that Ghulam Jaffar died due to negligent firing of the complainant party. Then the file was produced before RPO, Multan who after getting opinion of prosecutor not only agreed with local police, Inspector Abdul Majeed and SSP Crime Multan ordered that case be kept as untracted and directed local police that actual culprit be traced from the complainant party with whose negligent firing Ghulam Jaffar had died. The complainant party did not join the investigation rather immediately filed this false complaint to save the skin of their own persons. The prosecution story was not only found false during investigations. It was also contradicted by the medical evidence and site plans and recoveries of alleged empties. During the trial the complainant party again took a somersault and made totally different statements and improved the case in a manner which is not believable and trustworthy, and could not prove the case against me and my other co-accused. I am innocent. ' Appellant did not opt to appear as his own witness under section 340(2), Cr.P.C. And also did not opt to produce evidence in his defence. 10. After hearing the arguments advanced by the learned counsel for both the parties, learned trial Court while evaluating the evidence available on record, found the version of the prosecution correct beyond any shadow of doubt, resulting into conviction of the appellant as stated above. 11. Learned counsel for the appellant, in support of this appeal, contends that actually this occurrence is not witnessed by Muhammad Fazil complainant (P.W.1) and Muhammad Yaseen (P.W.2); both the witnesses have made dishonest improvement while appearing in the court. According to F.I.R. Exh.PA, Muhammad Yaseen had fired on the deceased whereas while appearing as P.W.1 Muhammad Fazal and P.W.2 Muhammad Yaseen stated that all the accused made firing- at Ghulam Jaffar (deceased). He stated that actually it was an unseen occurrence and the learned trial Court had not taken into consideration the improvements made by the P.W.1 Muhammad Fazil and P.W.2 Ghulam Yaseen and had convicted the appellant on surmises and conjectures. Learned counsel lastly submitted that this is a case in which evidence is not confidence-inspiring,
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prosecution failed to prove its case against the appellant beyond shadow of reasonable doubt, therefore, he is entitled to be extended benefit of doubt and his ultimate acquittal from the charge. 12. On the other hand learned Deputy Prosecutor-General assisted by learned counsel for the complainant has argued that the prosecution has proved its case to the hilt with the help of testimony of complainant Muhammad Fazil (P.W.1) and Muhammad Yaseen eye-witness (P.W.2), therefore, the learned trial Court was well within its jurisdiction to convict the appellant. The statements of both the eye-witnesses are in line with the prosecution version on the material dimensions of this case i.e, time and place of occurrence, nomination of the accused, specific attribution of injuries to the appellant, duly verified by the medical evidence. Learned counsel for the complainant stated that medical evidence fully substantiates the prosecution case as the injuries assigned to the appellant finds mention in the post mortem report. He further stated minor discrepancies in the prosecution evidence are human error and these cannot be made basis for acquittal of the appellant in any manner. It was lastly argued that the learned trial Court while convicting the appellant, had advanced cogent reasoning. While arguing Criminal Revision No,155 of 2010, learned counsel for the complainant contends that imprisonment awarded to the appellant be enhanced to death with fine. 13. We have heard the arguments advanced by learned counsel from both sides. We have also gone through the record available on file with the able assistance of learned counsel for the parties. 14. Initially the prosecution had booked as many as five accused in this case, including the appellant who had been attributed. Chest injury on the person of deceased Ghulam Jaffar whereas all the other four accused namely Allah Yar, Muhammad Akram, Allah Bakhsh and Abdul Rehman had been attributed lalkara and firing at the deceased. After setting the criminal law 'into motion by the Complainant Muhammad Faazal (P.W.1) by lodging the F.I.R. Three investigations were conducted in this case by Muhammad Saeed Ullah Khan, DSP (Retired) (C.W.1), Muhammad Afzal, Inspector/SHO (C.W.2) and Abdul Majeed, Inspector, RIB (C.W.3) and out of those two Investigating Officers had opined the accused persons to be innocent, including the appellant whereas only Muhammad Afzal, Inspector/SHO (C.W.2) had come to the conclusion that Muhammad Yaseen appellant and Muhammad Akram accused were guilty. The complainant when confronted with such a situation filed a private complaint. 15. The ocular account in this case had been furnished by Muhammad Faazal complainant (P.W.1) and Muhammad Yaseen (P.W.2). Admittedly in the F.I.R. And in, the private complaint the appellant was only attributed chest injury whereas all of his co-accused were attributed only firing at the deceased but when both these eyewitnesses appeared in the witness box as P.W.1 and P.W.2 they not only attributed single fire-arm injury to each co-accused of the appellant but also specified the part of body of the deceased where the deceased sustained injuries by the hands of co- accused. This glaring and dishonest improvement of course had been made by them to bring the ocular account in line with the medical evidence to prove so as to prove the case against the appellant. During his cross-examination Muhammad Faazal complainant (P.W.1) stated that the accused persons were standing together while effecting fire-shot injuries to the deceased and he was about sixty feet away from them, if the situation was so then how it was possible for him that he noted each and every fire coming out from the weapon of offence and hitting on different part of body of the deceased. What about a human being even a camera eye-view cannot visualize such a situation, thus, the improvement made by the eye-witnesses in their statements made before the learned trial Court speak volume of falsity and dishonesty. The evidence adduced by them is not worthy of credence to gain our confidence so as to be believed against the appellant, 16. Apart from what has been discussed above admittedly the deceased was brother-in-law of the complainant, thus, the latter was an interesting witness whose presence at the place of occurrence
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in the circumstances mentioned in preceding paragraph is highly doubtful. It is an admitted phenomenon that with the passage of time the witnesses loose their memory and could not furnish the incident with exactitude but in this case an adverse experience has been seen because after passing a considerable time the eye-witnesses pinpoint the part of body of the deceased who sustained firearm injury and also attribute each and every injury to all the accused. This fact alone is sufficient to create doubt in the prosecution story. In these circumstances we are not ready to believe the ocular account furnished by dishonest and related eye-witnesses. 17. The motive is not attributed to the appellant rather the same was attributed to Abdul Rehman co-accused because Khizar Hayyat Dadoowana who stole the cotton sticks of the deceased and whom the deceased had given slapping and forbidding from stealing was real brother of Abdul Rehman. Admittedly Abdul Rehman (to-accused had been acquitted by the learned trial Court and Khizar Hayyat Dadoowana had not been found in this case in any capacity whatsoever. 18. According to the medical evidence injuries Nos.1 to 4 have blackening which can only be possible if the fires were made from close range about 3/4 feet but in the site plan the distance between the deceased and the appellant has been shown as 16"-6' feet which shows that the alleged fire of the appellant hit from a long distance. Even otherwise the medical evidence is only used to corroborate the ocular evidence with respect to seat of injury, time of occurrence and weapon of offence, etc. But medical evidence itself does not constitute any corroboration qua the accused person for proving his culpability. Reliance in this regard can be placed on the case of Muhammad Sharif and another v. The State (1997 SCM R 866). In such a situation the medical evidence does not provide support to the ocular account. 19. As regard the recovery of crime-empty is concerned- admittedly nothing had been recovered from the appellant, during the investigation of this case, thus, the empties recovered in this case is of no consequence and cannot provide corroboration to the ocular account. 20. From the discussion made above a conclusion is inescapable that the prosecution has miserably failed to prove its case against the appellant beyond shadow of reasonable doubt. This appeal is, therefore, allowed and the appellant is acquitted of the charge while extending the benefit of doubt to him. He shall be released from the jail forthwith if not required in any other case. 21. In consequence of the discussion made above the connected Criminal Revision No,155 of 2010 is hereby dismissed. Appeal allowed. 2013 P Cr. J 161 [Peshawar] Before Waqar Ahmad Seth and Shah Jehan Khan Akhundzada, JJ MUHAMMAD ZAMURAD--- Appellant versus CHAIRMAN NATIONAL ACCOUNTABILITY BUREAU through Deputy Prosecutor-General, PDA Complex Hayatabad, Peshawar---Respondent E. Cr. A. No,12 of 2010, decided on 4th September, 2012. National Accountability Ordinance (XVIII of 1999)--- ----Ss. 9(a)(iv) & 10---Criminal Procedure Code (V of 1898), S.431--Corruption and corrupt practices---Assets beyond means---Appreciation of evidence---Death of accused---Fine, imposition of---Accused was convicted by Trial Court for acquiring assets which were disproportionate to his known sources of income---Accused did not deny acquisition of assets however claimed to have acquired them through lawful sources of income-Validity---Accused claimed that plot for residential house was purchased by his father-in-law for his wife and house was constructed on it, however prosecution witness who was previous owner of the plot deposed before Trial Court that the same was purchased by the accused---Allegations of expenses incurred on education of children by accused as well as performance of Umra and fare of UK, were proved by prosecution through oral and documentary evidence--- Prosecution witnesses were
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found consistent and confidence inspiring and their stance could not be shattered despite lengthy and taxing cross-examination, whereas accused produced cryptic and inconsistent evidence, which was rightly not believed---Trial Court after scrutinizing material available on record convicted and sentenced accused and counsel for accused failed to point out any misreading or non-reading of evidence, justifying interference by High Court---Judgment passed by Trial Court was in accordance with law and material available on record---Accused had died, therefore, his sentence stood abated, however High Court maintained fine imposed by Trial Court---Appeal was dismissed accordingly. [pp. 167, 1681 A & B Shah Nawaz Khan for Appellant. Jamil Khan, D.P.G. And Tariq Javed, A.D.P.G. For Respondent. Date of hearing: 4th September, 2012. JUDGMENT ' WAQAR AHMAD SETH, J.---The appellant Muhammad Zamarud stood trial in Reference No,12 of 2009 before Accountability Court No,IV, N.-W.F.P., Peshawar and after having been found guilty under section 10 of the NAB Ordinance vide judgment dated 26-2-2010, he has been convicted and sentenced to two years' rigorous imprisonment with a fine of Rs, 1,77,82,866 recoverable under section 33-E of NAB Ordinance, however, benefit of section 382-B, Cr.P.C. Was extended to him. 2. The allegation against the appellant is that during service in Customs Department, he acquired huge assets in his own name, in the name of his dependents and benamidars amounting to Rs,1,77,82,866 and also spent huge amount on the education of his children and visits abroad, which. Are disproportionate to his known sources of income. He joined the Customs Department as Upper Division Clerk, in the year, 1976 and got promoted to the post of Superintendent (BPS-16), on 19-12-2002. NAB (F) took cognizance of the matter and authorized' Mr. Amjad Naseer to investigate. During the investigation, the I.O. Collected necessary evidence and found that the appellant gained certain movable and immovable properties/assets, which are fully detailed in the Reference as well as in the judgment of Accountability Court. 3. The I.O. After collection of evidence, compiled his Final Report Exh.P.W.17/20 and forwarded it to the D.G. NAB (F) on the basis of which the instant Reference was shaped and then submitted to Accountability Court No,1, Peshawar for adjudication. Thereafter, the same was transferred to Accountability Court No,IV, Peshawar. Statement of appellant on oath was recorded. Benamidar Mst. Kaneez Fatima contested the notice issued to her and in support of her claim she produced four witnesses. The appellant denied none of the properties, constructions and expenditures etc. However, claimed the same to have been obtained within lawful sources. ' The prosecution in support of its allegation produced the following evidence, gist whereof is as under:-- ' Sheikh Ibrar Ahmad P.W.1 is the neighbour of appellant, who too constructed his house in 1982-83, whereas Nasir, Clerk, DOR Office, Rawalpindi produced the original record of registered Deed No,17751 executed on 24-12-1981, which pertains to the house of the accused allegedly purchased by his wife from one Chaudhry Muhammad Akram. ' Sardar Muhammad, Chief Accounts Officer, Customs Collectorate, Peshawar appeared as P.W.3 and produced the detail of rewards, pay and allowances received by the appellant during his service. ' Muhammad Ramzan, Deputy Vice-Principal, Cadet College Hassan Abdal, appeared as P.W.4 and produced the complete record pertaining to the tuition fees and other expenses of two sons of the appellant. According to him, total expenses from the year, 1995 to 2001 came to Rs,4,65,464. ' Shahid Iqbal, Executive Engineer, Pak PWD, Islamabad appeared as P.W.5, who carried out the assessm ent of record incurred on House No,3 Swan, Rawalpindi in the year, 1983-84, which came to Rs,4,61,680, however, the same did not include price of the plot.
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' Hafiz Ibrar, representative of Lawrence College, Murree appeared as P.W.6, who produced the record of fees and other charges pertaining to the third son of appellant, namely, Jawad Zamarud, who was admitted in the College in March, 1995 and studied there up to 2005. During this 10 years academic session, the appellant paid Rs,11,35,827 as tuition fee and other miscellaneous charges of his son named above. ' Muhammad Ijaz, Patwari appeared as P.W.7, who produced Mutations Nos.855 and 878 through which the appellant and his wife inherited landed property measuring two kanals, five marlas and 4-1/2 marlas from their respective fathers. This witness also produced Revenue Record on the basis of which appellant purchased or received in gift landed property from his brothers and sisters, which comes to 5 kanals and 4 marlas in toto. 'Awal Khan, Office Qanoongo, Haripur appeared as P.W.8, who produced the annual agricultural income of the landed property in the name of appellant from the year, 1992 to 2005. ' Imran Naseer, Manager Operation, Citibank, Rawalpindi appeared as P.W.9, who produced the record pertaining to Account No,5-310247-016 maintained in the name of Mst. Kaneez Fatima, wife of appellant. ' Raja Saparas Khan, 0G-II, NBP, Rawalpindi P.W.11 and Muhammad Javed Khan, AVP, NBP, Rawalpindi P.W.13, produced the three accounts in the name of appellant. ' Muhammad Shakeel Saghar, Manager Operation, HBL Rawalpindi appeared as P.W.12, who produced record in respect of two accounts, one in the name of appellant and his wife while the other in the name of Asad Mehmood son of Muhammad Akram. ' Atif Bin Zahoor, Manager HBL appeared as P.W.14, who deposed that both account holders Asad Khan and appellant used to visit the bank, jointly operated the said account and made transactions therein. This witness went on to say that on 28-8-2004 Asad Khan came to his bank along with an application to replace his brother-in-law i.e, appellant with Javed Akhtar, his brother. ' Nasir Saeed Akhtar, Section Officer, Establishment Division, Islamabad appeared as P. W.16, who conducted inquiry in the instant case after transfer of Saqib Farooq to another wing of NAB. He through FCIW, NAB Islamabad sought the information regarding the country wide bank accounts of the appellant from the State Bank of Pakistan, which they did and as per information three hidden accounts pertaining to…
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