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Petitioner: SOHAIL ASLAM VS Respondent: The STATE
Court Name: Lahore High Court Judge(s): Aalia Neelum Title: SOHAIL ASLAM vs The STATE Case No.: Criminal Appeal No,1461 of 2008 Date of Judgment:2016-11-01 Reported As: 2017 YLR 1383 Result: Appeal accepted
JUDGMENT
JUDGMENT AALIA NEELUM, J.---Sohail Aslam son of Muhammad Aslam, Caste Pathan, resident of Mianwali City (appellant) along with Tariq Javaid (since acquitted), Aamir Ali (since acquitted) and Shaukat Pervaiz (since acquitted) was involved in private complaint case titled "Sarwar Magsood v. Sohail Aslam etc." filed under Sections 302/324/337-F/334/ 109/148/149, P.P.0 and was tried by the learned Additional Sessions Judge, Mianwali. The learned trial court seized with the matter in terms of judgment dated 28.11.2008 and convicted Sohail Aslam (the appellant) as under:-- (1)Convicted under section 302(b)/34, P. P. C . for committing Qatl-iAmd' of Taj Muhammad- deceased and sentenced him to imprisonment for life. The appellant was further directed to pay Rs,2,00,000/- as compensation to the legal heirs of the deceased in terms of section 544-A, Cr.P.C. and in case of default in payment thereof, to further undergo SI for six months. (2)Convicted under section 324/34, P.P.C. for causing injury to Sajid Masood and sentenced him to imprisonment for ten years' RI. The appellant was further directed to pay Rs,50,000/- as fine to the victim Sajid Masood and in case of default in payment thereof, to further undergo S.I. for three months. (3) Convicted under section 337-F (iii))/34, P.P.C. for causing injury to Sajid Masood and sentenced him to imprisonment for two years' RI. The appellant was further directed to pay Rs,50,000/- as Daman amount to the victim Sajid Masood after its realization from the Jail. The benefit of section 382-B, Cr.P.C. was also extended in favour of the appellant. 2. Feeling aggrieved by the judgment of the learned trial court the appellant impugned the same by way of filing Cr1. Appeal No,1461 of 2008. 3. Prosecution story as contained in the private complaint (Ex.PZ) filed by Sarwar Maqsood-
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complainant (PW-7), subsequent complainant, mentioned therein that his brother Taj Muhammad (deceased) got recorded his statement on 04.02.2005 at about 02:20 p.m. before Abdul Majeed, SI (PW-16) in the Emergency Ward of District Headquarter Hospital, Mianwali that, "Taj Muhammad-deceased has submitted that he along with his brother Sarwar Maqsood (PW-7) and his sons Sajid Masood (PW-8) and Asif Masood was proceeding towards Masjid Hanfia Muslim Bazar on 04.02.2005 and at about 1:45 p.m, when they reached near the shop of Abdul Sattar, the co-accused Hizbullah (since PO) while armed with 222-bore, Sohail Aslam-appellant armed with repeater .12-bore, Aman Ullah armed with pistol .30-bore (since PO) along with two unknown accused persons and the names of two unknown accused persons were stated as Tariq Javaid, armed with gun .12-bore pump action (since acquitted) and Ahmad Khan, armed with rifle 222-bore by Sajid Masood (PW-8), Asif Masoce PW during their statements recorded under section 161, Cr.P.C. before the Investigating. Officer, suddenly came there by riding over on two motorcycles. Soon thereafter, the accused Hizbullah (since PO) raised Lalkara and made burst with 222-bore with an intention to commit murder, which were landed on different parts of his body. The appellant-Sohail Aslam made a fire shot with repeater .12-bore, which hit Sajid Masood on different parts of his body. The co-accused Aman Ullah (since PO) made two fire shots with pistol .30-bore, which landed upon Sarwar Maqsood (PW-7) on his right knee and on his hand towards back side and they all three were fell down after receiving the injuries. Asif MasoodPW rescued himself by getting shelter of the shop but the co-accused Tariq Javed (since acquitted) and Ahmad Khan made straight firing towards them. The occurrence was witnessed by Taj Muhammad (who later on died), Sajid Masood (PW-8), Asif Masood and Sarwar Maqsood (PW-7) and subsequently the accused fled away on their motorcycles" 4. The motive behind the occurrence was stated to be lodging of criminal cases against Aman Ullah and Sohail Aslam appellant 4 Police Station City Mianwali and the accused persons/refrained them not to pursue said cases and due to this grudge, the appellant along with co-accused persons in furtherance of their common intention committed the said occurrence on the abetment of one Shaukat Pervaiz, Ex-Councilor. The conspiracy hatched by the appellant- Sohail Aslam, Hizbullah (since PO), Aman Ullah Khan (since PO), Tariq Javaid (since acquitted) and Ahmad Khan regarding finishing them due to low caste was heard on 28.01.2005 by Abdul Aziz and Ameer Muhammad-PWs and this fact has been brought into the notice of the 1.0 by the complainant (PW-7), Sajid Masood (PW-8) and Asif Masood after recording their statements. The accused Aamir Ali, armed with pistol 30-bore (since acquitted) was also present at the time and day of occurrence near Awan Chowk Muslim Bazar and was raising Lalkara that anyone would come near to them, would also be finished and then he (Aamir Ali) decamped from the spot along with aforementioned accused persons after riding on the motorcycle. The Investigating Officer recorded the statements of Ameer Ahmad (given up PW) and Fateh Muhammad (given up PW) to the extent of this incident regarding involvement of the accused. After the occurrence, Asif Masood-PW, shifted Taj Muhammad (deceased) and Sajid Masood (PW-8) to Civil Hospital Mianwali, where the Investigating Officer (PW-16) recorded the statement of Taj Muhammad deceased in form of the FIR, which was verified by Abdul Majid, SI (PW-16). 5. On the statement of Taj Muhammad-deceased complaint (Ex.PZ) was recorded, whereas the private complaint was also exhibited with same Exhibit-PZ, the formal FIR (Ex.PJJ) was lodged under sections 324/109/148/149, P.P.C. on 04.02.2005 and on the same day, Sarwar Maqsood (PW-7) reached at the place of occurrence and joined the investigation before the police. The investigation was conducted by Abdul Majid, SI (PW-16), who on receiving information reached at DHQ Hospital, Mainwali, where Taj Muhammad was admitted in the emergency ward. He correctly recorded the statement of Taj Muhammad (Ex.PZ) and on the basis of the same formal FIR (Ex.PJJ) was lodged. He (PW-16) prepared injury statements of Taj Muhammad (Ex. PB), Sarwar Maqsood
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(Ex.PF) and Sajid Masood (Ex.PD). On the same day, he (PW-16) submitted application (Ex.PKK) to the Medical Officer for permission to record statement of Sajid Masood (PW-8), whereupon, the Medical Officer granted permission for recording statement of the injured Sajid Masood (PW-8). Thereafter, the I.O. (PW-16) recorded the statements of Sajid Masood (PW-8) and Asif Masood under section 161 Cr.P.C. Then, he (PW-16) visited the place of occurrence along with PWs namely Asif Masood and Sarwar Maqsood (PW-7). He (PW-16) also recorded the statements of Abdul Aziz (PW-14) and Ameer Muhammad (given up PW). Thereafter, he (PW-16) inspected the spot and secured blood stained earth from the places of where Taj Muhammad and Sajid Masood (PW-8) received injuries through sealed parcels vide recovery memos (Ex.PX and Ex.PY). Thereafter, Nasrullah 431/Constable (PW-5) produced before him (PW-16), the MLR of Taj Muhammad and blood stained Shalwar of Taj Muhammad (P-1), which he (PW-16) took into possession vide recovery memo (Ex.PM). Nasrullah 431/Constable (PW-5) also handed over to him (PW-16) the blood stained Shalwar of Sajid Masood (P-2), which he (PW-16) also took into possession vide recovery memo (Ex. PN) and he (PW-16) recorded the statement of Nasrullah 431/C (PW-5) under section 161 Cr.P.C. The Investigating Officer (PW-16) had also prepared rough site plan (Ex.PLL) of the place of occurrence. On 19.02.2005, he (PW-16) received a telephone call through Asif Masood that Taj Muhammad had died in PIMS Islamabad and he proceeded to PIMS Islamabad and recorded Rapt No,12 regarding death of Taj Muhammad and amended the offence from section 324, P.P.C. to 302, P.P.C. He (PW-16) prepared injury statement of the deceased (Ex.PFF), inquest report (Ex.PGG) and then dispatched the dead body of the deceased through Hafiz Ullah 312/C (PW-17) for postmortem examination. After postmortem examination, he (PW-16) recorded the statement of Hafiz Ullah 312/C (PW-17). The Draftsman, Muhammad Shafiq Khan, (PW-11) took rough notes on 20.02.2005 and thereafter, on 23.05.2005, he (PW-11) produced site plans (Ex.PBB) and (Ex.PBB/1) before the Investigating Officer. The Investigating Officer (PW-16) during investigation found the appellantSohail Aslam, Aman Ullah, Hizbullah (since PO) and Shaukat Pervaiz (since acquitted) as innocent and by placing their names in column No,2 of the Challan, he (PW-16) sent the same to the Court of Session enrouted through the learned Illaqa Magistrate as provided under section 190(2) Cr.P.C. Khalid Mehmood Khan, Inspector (PW-21) was posted as SHO Police Station City Mianwali on 06.07.2005 and on the same day, the investigation of this case was entrusted to him (PW-21) on the direction of the District Police Officer, Mainwali, who conducted raid at the residences of the appellant-Sohail Aslam, Aman Ullah (since PO) and Hizbullah (since PO) but they could not be traced. He (PW-21) obtained non bailable warrants of arrest of the appellant-Sohail Aslam, Hizbullah (since PO) and Aman Ullah (since PO) from the learned Area Magistrate on 12.11.2005 and he (PW-21) handed over the said warrants for execution to Nasrullah 431/C (PW-5) on 17.11.2005, which were returned by him (PW-5) being unserved. He (PW-21) recorded the statement of Nasrullah 431/C on 17.11.2005 and on the same day, he (PW-21) obtained proclamations of the appellant-Sohail Aslam, Aman Ullah (since PO) and Hizbullah (since PO) from the learned Area Magistrate, which were handed over to Nasrullah 431/C (PW-5) for effecting service upon the accused. He (PW-21) recorded the statement of Nasrullah 431/C (PW-5) about the proclamation and Nasrullah 431/C (PW-5) returned to him (PW-21) the proclamations of the above mentioned accused after service, which were put up before the learned Area Magistrate and he (PW-21) prepared incomplete challan on 01.12.2005. Subsequently, on the application of the complainant (PW-7), the investigation was changed and the same was entrusted to Zulfiqar Ali, Inspector/SHO (PW-19), who on 14.04.2006, on receiving spy information regarding presence of Sohail Aslam- appellant at Flying Coach Adda Mianwali, conducted raid and arrested Sohail Aslam-appellant on 14.04.2006. After death of Taj Muhammad, the eyewitness of the occurrence namely Sarwar Maqsood (PW-7) became complainant in the private complaint and Sarwar Maqsood (PW-7) filed a private complaint before the learned Illaqa Magistrate on 25.03.2006 with considerable delay
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being dissatisfied with the investigation against the appellant and other co-accused persons. The learned trial court after hearing preliminary arguments summoned the accused to face the charge. The learned Illaqa Magistrate sent the same to the Worthy Sessions Judge, Mainwali for its entrustment to the Court of competent jurisdiction. After appearance of the accused, they were formally charge sheeted by the learned trial court in terms of order dated 21.09.2006, to which they pleaded not guilty and claimed trial. 6. The prosecution in order to advance its case produced as many as twenty one (21) prosecution witnesses during the course of trial in private complaint. Ocular account in this case consists of the statements of Sarwar Maqsood (PW-7) and Sajid Masood (PW-8). 7. Dr. Salah-ud-Din appeared as PW-3 and deposed that on 04.02.2005, he conducted medico legal examination of Taj Muhammad-deceased and found the following injuries on his person. 1. There were multiple wounds of entries about 11 in number in an area of 10 x 10 cm on outer surface of right thigh. It was 34 cm proximle to the knee joint. 2. There was a grazing fire arm injury on anterior medial surface of right thigh in an area of 6 x 6 cm about 20 cm proximal to the right knee joint. Underline muscles were also damaged. 3. The penis was amputated about 2.5 cm was left behind. 4. There were multiple entry wounds about 15 in number on anterio lateral surface of left upper thigh in an area of 24 x 7 cm. all the wounds were bleeding profusely, corresponding holes were present in clothes. All the injuries were kept under observation and were caused by firearm. The probable duration was within an hour. On 04.2.2005, he (PW-3) conducted the medico legal examination of Sajid Masood (PW-8) and found the following injuries on his person, which are as under:-- 1. An entry fire-arm wound 1 x 1 cm on the medial surface of right thigh about 14 cm proximal to the knee joint. 2. An exit wound 7 x 6 cm on posterior surface of right thigh, 12 cm proximal to the knee joint. 3. An entry wound half x 1 cm on anterior surface of left big toe. 4. An exit wound 1.5 x 1 cm on palmer surface of left big toe. 5. An entry wound 1 x 1 cm on the outer surface of left knee about 2 cm proximal to the joint. 6 An entry wound 2 x 1 cm on posteriolateral surface of left thigh, 10 cm proximal to the joint. 7. An entry wound 1 x 1 cm on the posterior surface of left thigh about 14 cm from the joint. 8. Multiple entry wounds about eight in number in as area of 18 x 9 cm on the posterior surface of left thigh, about 24 cm proximal to the knee joint. 9. An exit wound 2 x 1 cm on the posterior medial surface of left thigh, 12 cm proximal to the joint. 10. An exit wound 2 x 1 cm on the posteriomedial surface of the left thigh about 17 cm proximal to the injury No, 9. Corresponding holes were found present on the clothes which were signed and handed over to the police. On 04.02.2005, he (PW-3) also medically examined Sarwar Maqsood (PW-7) and found the following injuries in his person. 1. There was a gracing firearm injury 2 x 1 cm x skin deep on the posterior surface of left hand. 2. A gracing firearm injury 1-1/2 x 1 cm x skin deep on front of right knee joint. Corresponding holes were present in Shalwar. On 17.02.2005, the final result of Taj Muhammad-deceased was declared as under:-- 1. Injury No,1 Ghayr Jaifah Munaqqilah. 2. Injuries Nos.2 and 4 Ghayr Jaifah Mutalahimah. 3. Injury No,3 Itlaf-i-Udw. Dr. Tanvir Khaliq, Consultant Surgeon PIMS Islamabad appeared as PW-18, who deposed that on 04.02.2005 Sajid Masood injured was brought to PIMS at night time and on the following day, he
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medically examined the injured and also surgically operated him. The main femoral artery of the injured was damaged. The femoral vein was also damaged. The nature of injury was serious which could have lost the leg of injured. 8. On 21.02.2007, the learned SPP had given up Dr. Hameed and Muhammad Asghar 1474/C being unnecessary. On 26.02.2007 and on 28.02.2007, Malik Saleem Akhtar Ghanjera, Advocate for the complainant had also given up Mehr Khan, SI and Amir Muhammad being unnecessary and also given up Fateh Muhammad, Amir Ahmad having been won over by the accused and on 11.04.2007 closed the prosecution evidence after tendering Chemical Examiner Report (Ex.PNN) and report of Serologist as (Ex.POO). Thereafter, Rana Amjad Iqbal, Chief Editor of Daily Nawa-e-Sharar appeared as CW-1, Mehmood Javed appeared as CW-2, Abdul Rashid retired Educationalist appeared as CW-3 and Muhammad Khan 493/HC appeared as CW-4. 9.After closure of the prosecution evidence, the appellant was examined under section 342 of Cr.P.C, wherein he opted to appear as his own witness in terms of section 340(2), Cr.P.0 in disproof of allegations leveled against him in the prosecution evidence and also opted to adduce evidence in his defence. While replying to the question why this case is against him and why the PWs deposed against him, the appellant-Sohail Aslam made the following deposition:-- "Due to enmity." 10.In defence evidence, the appellant himself appeared as DW-5, whereas Haji Ahmad Khan appeared as DW-1, Haji Ghulam Muhammad appeared as DW-2, Aamir Abbas, Inspector RIB appeared as DW-3 and Ghulam Muhammad, Inspector appeared as DW-4. 11.Learned trial court after evaluating the evidence available on record found version of the prosecution proved beyond any shadow of reasonable doubt against the appellant resulting into his conviction in the afore-stated terms. 12.Learned counsel for the appellant contends that there is discrepancy in between the medical evidence and ocular account; that the appellant has joined the investigation and during investigation, he was declared innocent by the Investigating Agency and he produced sufficient evidence in his defence; that the occurrence as narrated in the private complaint had not taken place at all and that during the course of investigation nothing has been recovered from the possession of the appellant and if any that is fake and fictitious and the prosecution has failed to prove the case against the appellant and lastly prayed that he may be acquitted from the charge being falsely implicated in this case. 13.On the other hand, learned counsel for the complainant and the learned DPG have opposed the contention raised on behalf of the appellant and stated that there is no or mala fide on part of the complainant to rope the appellant in the false case; that the both the eye-witnesses of the occurrence i,e, (PW-7 and (PW-8) have strongly corroborated the prosecution story; that the appellant was specifically nominated in the FIR with the specific injury to the deceased and injured prosecution witnesses and lastly prayed that the prosecution has proved its case by producing 21 witnesses beyond any shadow of doubt. 14.I have heard the arguments advanced by the learned counsel for the parties and have minutely perused the record available on the file. 15.The entire case of the prosecution to the extent of Sohail Aslam accused-appellant rests upon the statement of two witnesses i,e, the complainant-eye-witness Sarwar Maqsood (PW-7) and injured witness-Sajid Masood (PW-8), brother and son respectively of the deceased-Taj Muhammad. The enmity of the prosecution witnesses with the Sohail Aslam accused-appellant is admitted fact. The complainantSarwar Maqsood (PW-7) deposed during cross-examination that, "I and my family is inimical to Sohail Aslam accused for the last two years." Sajid Masood (PW-8) also deposed in the similar lines. For the safe administration of justice a very strong corroborative piece of evidence is required for relying both above stated prosecution witnesses. As per
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prosecution's own case Sohail Aslam accused-appellant made fires with his gun .12 bore repeater which landed on the right thigh, left thigh, left foot, left knee and on different parts of Sajid Masood (PW-8). Both prosecution witnesses i,e, Sarwar Maqsood (PW-7) and Sajid Masood (PW-8) deposed in the similar lines. However, there are material contradictions and discrepancies in the testimony of the aforesaid witnesses regarding inflicting injuries on the person of injured witnessSajid Masood (PW-8). It was not alleged in the FIR (Exh.PJJ) that during occurrence Sohail Aslam accused-appellant along with Tariq Javaid (since acquitted) and Ahmad Khan (since murdered during trial) also had fired causing injuries to the deceased and injured witness-Sajid Masood (PW-8). Sarwar Maqsood (PW-7) deposed during his court statement regarding injuries caused by co-accused Tariq Javaid (since acquitted) and Ahmad Khan (since murdered during trial). Let us now read what Sarwar Maqsood (PW-7) .says in his court statement about the fires made by. Tariq Javaid and Ahmad Khan: Court Question: Whether the fires made by Tariq Javaid and Ahmad Khan accused hit anybody? Answer:- The fires made by the accused hit Taj Muhammad deceased and PW Sajid Masood on different parts of their body Sajid Masood (PW-8) also deposed in the similar lines. During cross-examination Sarwar Maqsood (PW-7) deposed that, "I did not mention in my statement before police, complaint and cursory statement that the fires made by Tariq Javaid and Ahmad Khan accused hit Taj Muhammad deceaied, PW Sajid Masaood on different parts of their bodies." Sajid Masood (PW-8) also deposed during cross-examination that, "The accused Tariq Javaid, Ahmad Khan and Aamir Ali are residents of our Mohalla and I know them prior to the occurrence. It is correct that I have implicated Ahmad Khan and Tariq Javaid accused in lieu of two unknown persons. I stated before police in my statement under section 161, Cr. P. C. that the fires made by Tariq Javaid and Ahmad Khan accused landed on different parts of the body of my father and myself. Confronted with Ex.DB wherein the hitting of fires to the deceased and the witness is not recorded." Apart from above, all the injuries found on the person of Sajid Masood (PW-8) at the time of medical examination were caused by three different weapons in the opinion of Dr. Salah-ud-Din (PW-3). Whereas as per the first version of Sarwar Maqsood (PW-7) and Sajid Masood (PW-8) the appellant Sohail Aslam caused injuries with his gun .12 bore repeater on the person of Sajid Masood (PW-8). Dr. Salah-ud-Din (PW-3) deposed during cross-examination that, "It is correct to suggest that the dimension of injuries Nos. ], 5 and 7 of Sajid Masood injured is the same i,e, 1 x 1 cm. The possibility of the remaining injuries being caused by different kinds of Muzzles cannot be ruled out." It has been also noted that both prosecution witnesses i,e, Sarwar Maqsood (PW-7) Sajid Masood (PW-8) had not attributed specific injuries to Tariq Javaid (since acquitted) and Ahmad Khan (since murdered during trial) on the person of the injured witness-Sajid Masood nor both the witnesses had clarified the injuries on the body of Sajid Masood (PW-8) inflicted by Sohail Aslam accused-appellant. By increasing number of accused causing injuries on the person of the injured witness-Sajid Masood (PW-8) creates doubts about the truthfulness of the prosecution witnesses. Thus the prosecution witnesses improved their version and persecution version is also contradicted by medical evidence. It is also not the prosecution case that the injuries on the person of Taj Muhammad-the deceased were also caused by Sohail Aslam-accused/ appellant. In these circumstances, Sohail Aslam accused-appellant deserves benefit of doubt from the charges leveled against him. 16. The eye-witnesses are also not reliable, as the nature of injuries Nos. 1, 5 and 7 (1 cm x lcm) are in round shape whereas if the shot had been fired with gun .12 bore repeater from a distance i,e, 35 feet, it would form oval shape, whereas nature of injuries Nqs. 1, 3 and 5 suggests that the shot was not fired from a distant place. To consider this vital question this court has perused the evidence of eyewitness Sarwar Maqsood (PW-7), Muhammad Shafiq, Draftsman (PW-11) and Dr. Salah-ud-Din
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(PW-3) as well as rough site plan (Exh.PLL) and scaled site plans (Exh . PBB and Exh PBB/1). Sarwar Maqsood (PW-7) has categorically stated during cross-examination that, ' Sohail Aslam accused made fires from a distance of 20/25 feet." Whereas, Muhammad Shafiq, Draftsman (PW-11) deposed during cross-examination that, "I drafted site-plan on the pointation of PWs Sarwer Maqsood and Asti Masood." On perusal of rough site plan (Exh.PLL) it reveals that at points 2 Sajid Masood (PW-8) received firearm injuries caused by Sohail Aslam accused-appellant, who was present at point six (6), the distance between points 2 and 6 was six karams, whereas in scaled site plans (Exh.PBB and Exh.PBB/1) distance between point 2 and 6 was shown as 35 feet at north. The evidence of prosecution witnesses and site-plans are fully consistent on this point that distance between assailant and injured prosecution witness was 30 to 35 feet which is not supported by medical evidence.# Dr. Salah-ud-Din (PW-3), who conducted medical examination of Sajid Masood (PW-8), deposed during cross-examination that, "It is correct to suggest that the dimension of injuries Nos. 1, 5 and 7 of Sajid Masood injured is the same i,e, 1 x 1 cm. It is correct to suggest that 1 x 1 cm is a rounded wound. There might be possibility of muzzle of weapon and seal of injury on the right angle in case of rounded wound." The eye-witnesses are not reliable as the nature of injuries Nos. 1, 5 and 7 are in round shape which suggests that the fire shot was not made from a distant place i,e, 35 feet, the fire made from 35 feet would form oval shape instant of round shape with .12 bore repeater gun. Even the dimension of the injuries were also not result of 12 bore repeater gun. Looking to these facts, this court is of the opinion that true genesis of the occurrence has been withheld by the E prosecution.…
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