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Petitioner: Murtaza alias Murti and another VS Respondent: The State
Court Name: Lahore High Court Judge(s): Malik Shahzad Ahmad Khan Title: Murtaza alias Murti and another vs The State Case No.: Criminal Appeal No. 78948-J of 2019 Date of Judgment:2022-11-23 Reported As: 2023 MLD 1769 Result: Appeal accepted
JUDGMENT
JUDGMENT MALIK SHAHZAD AHMAD KHAN, J. This judgment shall dispose of Criminal Appeal No. 78948-J of 2019, filed by Murtaza alias Murti and Muhammad Abbas alias Bagu (appellants), against their convictions and sentences in private complaint, in respect of offences under sections 302/324/148 and 149, P.P.C. 2. Initially on the complaint of Muhammad Ashfaq, complainant (PW-1) case FIR No.368, dated 08.06.2013, was registered at Police Station Saddar Depalpur, District Okara, in respect of offences under sections 302/324/148 and 149, P.P.C. but later on being dissatisfied with the police investigation, Muhammad Ashfaq complainant (PW-1) filed private complaint (Exh.PB) against the appellants and nine (09) others. The learned trial Court, after observing all the pre-trial codal formalities, framed charge under sections 302, 324, 148, 149, P.P.C. against the appellants and their acquitted co-accused on 02.04.2014, to which they pleaded not guilty and claimed trial. After conclusion of the trial, the learned trial Court (Additional Sessions Judge, Depalpur) vide its judgment dated 28.11.2019, has convicted and sentenced the appellants as under:- Murtaza alias Murti. Under section 302(b), P.P.C. to rigorous imprisonment for life. He was also ordered to pay Rs.4,00,000/- (rupees four hundred thousand only) to the legal heirs of Abdul Razzaq (deceased) as compensation under section 544-A of Cr.P.C. and in default thereof to suffer simple imprisonment for six months. Muhammad Abbas alias Bagu. Under section 302(b), P.P.C. to rigorous imprisonment for life. He was also ordered to pay Rs.4,00,000/- (rupees four hundred thousand only) to the legal heirs of Muhammad Anwar
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(deceased) as compensation under section 544-A of Cr.P.C. and in default thereof to suffer simple imprisonment for six months. Benefit of section 382-B, Cr.P.C was also extended to the appellants. However, vide the same judgment, co-accused namely Istafa alias Isti, Mumtaz alias Matti, Muhammad Hussain, Mustafa, Rehmat Ali, Sultan and Yasin were acquitted of the charges, whereas Allah Nawaz and Ghaffar, accused died during pendency of trial against them. 3. Brief facts of the case as given by the complainant in his private complaint (Exh.PB) are that he was employee at Army Stud Farm; that on 08.06.2013 there was marriage of one Muhammad lkraam son of Jehangir. Muhammad Ashfaq, complainant (PW-1) along with his father Muhammad Anwar (deceased), brother Abdul Razzaq (deceased), uncle Muhammad Mushtaq (deceased), father-in-law Bashir Ahmad (given up PW), uncle Muhammad Altaf (PW-2) and cousin Safdar Hussain (PW-3), cousin Mazhar Sharif son of Shahmand (PW-8), uncle Muhammad Ishaq (given up PW) Ali Sial by caste were also invited on the said marriage and at about 04:00 p.m. were going by foot on road with the Barat of Ikraam towards the residence of Ahmad Ali son of Muhammad Sadiq caste Sial and when reached near Dhaari of Kumhaaran Wali, suddenly Muhammad Abbas alias Bagu (appellant), Yasin (co-accused since acquitted), Murtaza alias Murti (appellant) all armed with rifles .44 bore, Istfa alias Isti (co-accused since acquitted) armed with pump action gun .12 bore, Mustafa (co-accused since acquitted) armed with carbine .12 bore, Ghaffar (since died), Muhammad Hussain (co-accused since acquitted) persons armed with .12 bore guns, Mumtaz alias Munni (co-accused since acquitted) armed with pistol .30 bore, Allah Nawaz (co-accused since died), Rehmat Ali (co-accused since acquitted) and Sultan (co-accused since acquitted) all armed with fire arms, who all were hiding themselves besides the wall of Dhaari came in front of them. Rehmat Ali and Sultan (co-accused since acquitted) raised lalkara for teaching a lesson to Muhammad Anwar, etc. for quarreling with them upon which Muhammad Abbas alias Begu (appellant) made two fire shots with his rifle, which landed on the right and left side of chest of Muhammad Anwar (deceased) father of the complainant. Yasin (co-accused since acquitted) made fire shot with his rifle which landed on the right arm of Muhammad Anwar (deceased), who became seriously injured and fell on the ground. Murtaza alias Mufti (appellant) made fire shot with his rifle on Abdul Razzaq (deceased) brother of the complainant, which landed on the left side of his forehead. Mumtaz alias Munni (co-accused since acquitted) made fire shot with his pistol .30 bore which landed on the right thigh of Abdul Razzaq (deceased), who fell on the ground. After a while, Muhammad. Anwar, father and Abdul Razzaq, brother of the complainant succumbed to the injuries. Istfa alias Isti (co-accused since acquitted) made fire shot with his pump action gun, which landed on the back side of neck of Mushtaq Ahmad (deceased) uncle of the complainant. Second fire shot made by him landed on the left thigh of Safdar Hussain (PW-3). Ghaffar (co- accused since died) made a fire shot with his .12 bore gun which hit Bashir Ahmad (given up PW) on the left side of his chest. Muhammad Hussain (co-accused since acquitted) made a fire shot with .12 bore gun which landed at the right thigh of Muhammad Altaf (PW-2). Mustafa (co-accused since acquitted) made a fire shot with his carbine, which landed at the right thigh of Safdar Hussain (PW-3). Accused persons made indiscriminate firing due to which Yasin (co-accused since acquitted) also sustained minor injuries. The motive behind the occurrence was that a few days prior to the occurrence a quarrel took place between the complainant party and. the accused persons. Complainant party disgraced the accused persons, who nursed the grudge and on the day of occurrence when the complainant party was going with the Barat of Muhammad Ikraam and when they reached near Kumhaaran Wali Dhaari the accused persons who were sitting in ambush committed the occurrence. 4. In order to prove its case, the prosecution produced nine witnesses during the trial, whereas statements of seven CWs were also got recorded. The prosecution also produced documentary
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evidence in the shape of Exh.PA to Exh.PW and Exh.CW-1/A to Exh.CW-4/T/1. 5. The statements of the appellants and their co-accused under section 342 of Cr.P.C. were recorded. The appellants, refuted the allegations levelled against them and professed their innocence. While answering to a question that "Why this case against you and why the PWs have deposed against you" the appellants replied as under:- Ghulam Murtaza alias Marti "All the PWs are related inter se and with the deceased of this case. None of the independent person had supported false prosecution version. The alleged injured made their statements after considerable delay, which was an afterthought and concocted. During the course of investigation, the prosecution version was found false and baseless. During the course of investigation, it was concluded by the I.O that the occurrence had not taken place in the manner as stated by the prosecution. Abdul Razzaq deceased of this case made fires in the Barat and one fire hit to Yasin accused of this case, upon which Ghafar accused (since dead) also emerged at the spot and the Baraties and the said Ghafar exchanged indiscriminate firing inter-se which resulted into this occurrence. Neither I nor the other co-accused except Yasin, facing the trial was present at the place of occurrence at the time of occurrence, nor we were involved in this occurrence. The occurrence took place in front of the house of Yasin accused and his son Ghafar accused. The deceased party of this case were the aggressors. The complainant party had suppressed the true facts and falsely involved me and my co-accused while throwing a wide net and by fabricating a false and afterthought version. I was involved by the prosecution being the brother of Yaseen accused. However, I have nor any nexus with the alleged occurrence. The Baraties including the Groom and his family members did not support the prosecution case. However, the Baraties including Zulfiqar Ali son of Khushi Muhammad had also negated the prosecution case while appearing before the Investigating Officer. I was neither present at the place of occurrence at the time of occurrence, nor I was involved in this occurrence, I am innocent." Muhammad Abbas alias Bagu "All the PWs are related inter-se and with the deceased of this case. None of the independent person had supported false prosecution version. The alleged injured made their statements after considerable delay, which was an afterthought and concocted. During the course of investigation, the prosecution version was found false and baseless. During the course of investigation, it was concluded by the I.O. that the occurrence had not taken place in the manner as stated by the prosecution. Abdul Razzaq deceased of this case made fires in the Barat and one fire hit to Yasin accused of this case; upon which Ghafar accused (since dead) also emerged at the spot and the Baraties and the said Ghafar exchanged indiscriminate firing inter-se which resulted into this occurrence. Neither I nor the other co-accused except Yasin, facing the trial was present at the place of occurrence at the time of occurrence, nor we were involved in this occurrence. The occurrence took place in front of the house of Yasin accused and his son Ghafar accused. The deceased party of this case were the aggressors. The complainant party had suppressed the true facts and falsely involved me and my co-accused while throwing a wide net and by fabricating a false and afterthought version. The Baraties including the Groom and his family members did not support the prosecution case, However the Baraties including Zulfiqar Ali son of Khushi Muhammad had also negated the prosecution case while appearing before the Investigating Officer. I was neither present at the place of occurrence at the time of occurrence, nor I was involved in this occurrence, I am innocent." Neither the appellants nor any of their acquitted co-accused opted to appear as their own witnesses on oath as provided under section 340(2) of the Code of Criminal Procedure, 1898 in disproof of the allegations leveled against them, however they produced two DWs in their defence evidence.
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The learned trial Court vide its judgment dated 28.11.2019, found the appellants guilty, convicted and sentenced them as mentioned and detailed above. 6. It is contended by learned counsel for the appellants that the appellants are absolutely innocent and they have falsely been implicated in this case by the complainant being in league with the local police while using the wider net; that total eleven (11) accused persons were implicated in this case by the complainant party and out of the said eleven (11) accused persons, seven (07) co- accused have already been acquitted by the learned trial Court whereas two co-accused, namely Ghaffar and Allah Nawaz, died during the trial, hence the prosecution evidence, which has been disbelieved against the acquitted accused cannot be believed against the appellants without independent corroboration, which is very much lacking in this case; that although two (02) injured witnesses, namely Muhammad Altaf Hussain (PW-2) and Safdar Hussain (PW-3) appeared in the witness box but injuries on their bodies are not the stamp of their truth; that the prosecution case against the appellants has not been corroborated by the motive part of the prosecution story because a vague and general motive was alleged by the prosecution and the same has rightly been disbelieved by the learned trial Court; that the empties and weapons were kept together at police station, therefore, positive report of PFSA (Exh.PW) to the extent of gun recovered on the pointation of Murtaza alias Murti, appellant No.1 is inconsequential whereas according to PFSA report the empties recovered from the spot did not match with the rifle recovered on the pointation of Muhammad Abbas alias Bagu, appellant No.2; that there were contradictions in the ocular account as mentioned in the contents of the FIR and medical evidence of the prosecution to the extent of roles attributed to the appellants; that the prosecution witnesses made dishonest improvements in their statements while appearing before the learned trial Court, therefore, they are not worthy of reliance; that the learned trial Court has mainly convicted and sentenced the appellants and acquitting their co-accused while relying upon the police opinion, which was irrelevant after recording of prosecution evidence; that the prosecution miserably failed to prove its case against the appellants beyond the shadow of doubt, therefore, the appeal filed by the appellants may he accepted and the appellants may be acquitted from the charges. 7. On the other hand, it is contended by the learned Deputy Prosecutor-General assisted by learned counsel for the complainant that the FIR in this case was promptly lodged wherein the appellants along with their co-accused were nominated while giving specific roles to both the appellants; that co-accused of the appellants were found innocent during police investigation and nothing was recovered from the possession of acquitted co-accused whereas the appellants were found guilty during the police investigation and weapons of offence were also recovered from their possession, therefore, acquittal of co-accused is of no avail to the appellants; that the prosecution case against the appellants is fully supported by the medical evidence and minor discrepancies between the ocular account and the medical evidence of the prosecution regarding the seats of injuries on the bodies of the deceased persons are inconsequential; that even the motive against the appellants has also been proved in this case through reliable and confidence inspiring evidence of the prosecution witnesses; that the prosecution case against both the appellants was- further Corroborated by the recoveries of weapons of offence on their pointation; that the prosecution witnesses stood the test of lengthy cross-examination but their evidence could not be shaken; that the learned 'trial Court has righty convicted and sentenced both the appellants, therefore, their appeal may be dismissed while maintaining their convictions and sentences. In support of his arguments learned counsel for the complainant has placed reliance on the judgments reported as "Saeedullah Khan v. The State" (1986 SCMR 1027) and "Muhammad Ashraf v. The State" (2000 PCr.LJ 2021). 8. Arguments heard. Record perused.
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9. Prosecution story as set forth in the private complaint (Exh.PB), has already been reproduced in para No.3 of this judgment therefore, there is no need to repeat the same. 10. It is true that two injured prosecution witnesses, namely Muhammad Altaf Hussain (PW-2) and Safdar Hussain (PW-3) appeared in the witness box in support of the prosecution case but it is by now well settled that mere injuries on the bodies of the prosecution witnesses does not mean that they are stating the whole truth and their evidence is to be relied upon or discarded while keeping in view the other facts and circumstances of a particular case. Reliance in this respect may be placed on the judgment reported as "Muhammad Pervez and others v. The State and others" (2007 SCMR 670). The Hon'ble Supreme Court of Pakistan at page 681 has held as under- "Is also a settled law that injuries on P. W. only indication of his presence at the spot but is not Normative prove of his credibility and truth? See said Ahmad's case 1981 SCMR 795". 11. The ocular account of the prosecution was furnished by Muhammad Ashfaq complainant (PW-1) Muhammad Altaf Hussain (PW-2) and Safdar Hussain (PW-3). I have noted that there was conflict between the ocular account as set forth in the FIR (Exh.CW-1/A) and statements of the abovementioned PWs (Exh.DA and Exh.DB recorded by the police and medical evidence brought on the record by the prosecution through Dr. Aadil Rasheed (PW-4 and PW-7) and Dr. Javed Akram (PW-5). According to the contents of the FIR (Exh.CW-1/A) Murtaza alias Murti, appellant No.1 made a fire shot with his 44 bore rifle, which landed on the right side of the head of Abdul Razzaq, deceased and made its exit from the other side but according to the evidence of Dr. Aadil Rasheed (P W-4) in post mortem report Exh.PD injury No.2 on the right side of the head was an exit wound whereas injury No.1, which was an entry wound, was on the left side of head of Abdul Razzaq, deceased. Muhammad Abbas alias Bagu, appellant No.2 was assigned the role of making first fire shot, which landed on the right side of the chest of Muhammad Anwar, deceased and thereafter he made second fire shot, which landed near the right armpit of the said deceased. Although there is an entry wound on the right side of the chest of Muhammad Anwar, deceased i.e. injury No.3 but injury under the right armpit of the deceased i.e. injury No.6 was an exit wound and as such there was also conflict between the ocular account of the prosecution as mentioned in the FIR (Exh.CW- 1/A), in the statements of the prosecution witnesses recorded by the police Exh.DA and Exh.DB) and in the abovementioned medical evidence, which has created doubt in the prosecution case. It is further noteworthy that in order to bring their evidence in line with the medical evidence, the complainant and the PWs while filing the private complaint (Exh.PB) and appearing before the learned trial Court made dishonest improvements in their statements and changed the roles and seats of injuries attributed to both the appellants. They were confronted with their previous statements and dishonest improvements made by them were duly brought on the record. The relevant parts of the said statements are reproduced hereunder for ready reference:- Muhammad Ashfaq (PW-1) "....I had got drafted in application Ex.PA that Abbas alias Bagho fired two shots with his rifle hitting my father Anwar on right and left side of chest. Confronted with application Ex. PA wherein the words two fires and left side of chest" are not recorded. I had not got recorded in my application Ex. PA that Mohammad Abbas alias Bagho made second fire with his rifle which landed underneath the right armpit. Confronted with Ex.PA where it is so recorded in portion A to A. It is incorrect that 1 have changed my stance regarding seat of injuries attributed to Abbas alias Bagho while recording my statement before court and deviated from my stance narrated of Ex. PA in order to make my statement in line with the post mortem examination after legal assistance. I had recorded in my application Ex.PA that Murtaza alias Muni accused fired with his rifle on my brother Abdul Razzaq hitting on his left forehead. Confronted with application Ex.PA wherein it is not so recorded. I had not sated in my application Ex.PA that Murtaza alias Murti accused made fire with his rifle on my brother Abdul Razzaq which landed on right side of head and made an exit
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underneath of left ear. Confronted with application Exh.PA wherein it is so recorded in portion B to B. It is incorrect I have changed my stance got recorded by me in Exh.PA while making my statement in the court just to make my statement in line with post mortem report of the deceased...." Muhammad Altaf Hussain son Muhammad Nosher (PW-2) "...... .....I had stated in my statement Ex.DA that Muhammad Abbas alias Baghoo fired two shots hitting Mohammad Anwar on his chest on right and left side. Confronted with Exh.DA wherein on left side of chest is not mentioned. 1 had not stated in my statement Ex.DA that second fire made by Mohammad Abbas alias Baghoo landed on Mohammad Anwar deceased under his right arm- pit. Confronted with Ex.D.A, wherein it is so recorded in portion A to A. I had stated in my statement Exh.D.A. that Murtaza alias Murti fired with his rifle hitting Abdul Razzaq on his left forehead. Confronted with Ex.D.A wherein it is not so recorded. I did not state in my statement Ex.D.A. that Murtaza alias Murti made fire with his rifle at Abdul Razzaq which landed on right side of his head and made an exit from left ear. Confronted with Ex.D.A, where, ft is so mentioned in portion B to B. I had stated in my statement Ex.D.A that Istafa alias Isti accused fired with his pump action hitting Mushtaq Ahmad on the back of his neck. Confronted with Ex.D.A, wherein it is not so recorded in this sequence. I did not state in Exh.D.A that Istafa alias Isti made fire with his pumpaction which hit Mushtaq on the back of his chest and made an exit from the left side of his neck. Confronted with Ex.D.A. wherein it is not so recorded in this sequence. I did not state in Ex.DA that Istafa alias Isti made fire with his pump action which hit Mushtaq on the back of his chest and made an exit from the left side of his neck. Confronted with Ex.DA wherein it is so mentioned in Portion C to C. I had stated in my statement Ex.D.A that second fire of lstafa alias Isti accused landed on left thigh of Safdar Hussain, Confronted with Ex.D.A, wherein it is not so recorded. I did not specifically stated in Ex.D.A. that second fire of Istafa alias Isti accused landed on left leg and left knee of Safdar Hussain. Confronted with Ex.D.A, wherein it is so recorded in portion D to D...." Safdr Hussain (PW-3) ".........I had stated in my statement Ex.DB that Muhammad Abbas alias Baghoo fired two shots hitting Mohammad Anwar on his chest on right and left side. Confronted with Ex.D.B wherein on left side of chest is not mentioned. I had not stated in my statement Ex.D.B that second fire made by Mohammad Abbas alias landed Mohammad Anwar deceased under his right arm-pit. Confronted with Ex.D.B, wherein it is so recorded in portion A to A. I had stated 'in my statement Ex.D.B that Murtaza alias Murti fired with his rifle hitting Abdul Razzaq on his left forehead. Confronted with Ex.D.B wherein it is not so recorded. I did not state in my statement Ex.D.B that Murtaza alias Murti made fire with his rifle 01 Abdul Razzaq which landed on right side of his head and made an exit from left ear. Confronted with Ex.D.B. wherein it is so mentioned in portion B to B. I had stated in my statement Ex.D.B that Istafa alias Isti accused fired with his pump action hitting Mushtaq Ahmad on the back of his neck, confronted with Ex.D.B wherein it is not so recorded in this sequence. I did not state in Exh.D.B that Istafa alias Isti made fire with his pump action which hit Mushtaq on the back of his chest and made an exit from the left side of his neck, Confronted with Ex.D.B, wherein it is so mentioned in Portion C to C. I had stated in my statement Ex.D.B that second fire of Istafa alias Isti accused landed on left thigh of Safdar Hussain. Confronted with Ex.D.B, wherein it is not so recorded. I did not specifically stated in Ex.D.B that second fire of Istafa alias Isti accused landed on left leg and left knee of Safdar Hussain. Confronted with Ex.D.B, wherein it is so recorded in portion D to D......." It is evident from the perusal of abovementioned evidence that the prosecution witnesses made dishonest improvements in their statements while appearing in the witness box in order to bring their statements in line with the medical evidence, hence the said witnesses are not worthy of
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reliance as observed by the Hon'ble Supreme Court of Pakistan in the cases of "Akhtar Ali and others v. The State" (2008 SCMR 6). 12. The next moot point for determination before this Court is that the complainant party implicated as many as total eleven (11) accused persons in this case and out of the said eleven (11) accused, co-accused namely Ghaffar and Allah Nawaz, died during the pendency of the trial of the case before the learned trial Court, whereas the remaining seven (07) accused have already been acquitted by the learned trial Court. Learned DPG for the State, as well as, learned counsel for the complainant have conceded that no appeal against their acquittal has been filed either by the State or by the complainant. In the given circumstances, it is to be determined by this Court that as to whether the same prosecution evidence, which has been disbelieved against the abovementioned co-accused can be believed against the appellants and as to whether there is any independent corroboration of the prosecution evidence against the appellants. In this respect, I have noted that case of Istafa alias Isti, co-accused (since acquitted) is at par with the case of both the appellants because the said co-accused was assigned the role of making first fire shot, which landed on the back side of the chest near neck of Muhammad Mushtaq,…
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