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Petitioner: ABDUR RAUF and 3 others VS Respondent: The STATE
Court Name: Lahore High Court Judge(s): Malik Shahzad Ahmad Khan, Manzoor Ahmad Malik Title: ABDUR RAUF and 3 others vs The STATE Case No.:Criminal Appeal No, 1107 of 2008, Criminal Appeal No,637 of 2009, Criminal
Revision No,732 of 2008 and Murder Reference No,9 of 2009 Date of Judgment:2013-06-06 Reported As: 2014 YLR 933 Result: Ordered accordingly Judgment ' MALIK SHAHZAD AHMAD KHAN; J.---This judgment shall dispose of Criminal Appeal No,1107 of 2008 titled as "Abdur Rauf and others v. The State" filed by Abdur Rauf, Abid Shaheen, Nazir Ahmad and Farooq (appellant) against their convictions and sentences, Criminal Appeal No,673 of 2009 titled as "Raisat Ali v. Nazir Ahmad and others" filed by Riasat Ali (complainant) against the acquittal of Nazir Ahmad and Farooq, appellants (respondents in Criminal Appeal No,673 of 2009) from the charge under section 302(b) P.P.C., Criminal Revision No,732 of 2008 titled as "Riasat Ali v. Abdul Rauf and others" filed by Riasat Ali (complainant) 'for enhancement of compensation amount imposed upon Abdur Rauf and Abid Shaheen, appellants (respondents in Criminal Revision No,732 of 2008) and Murder Reference No,9 of 2009 titled as "The State v. Abdur Rauf and others" submitted by the learned trial Court for confirmation or otherwise of the sentence of death awarded to Abdur Rauf and Abid Shaheen, appellants as all these matters have arisen out of the same judgment dated 28-10-2008 passed by the learned Addl. Sessions Judge, Sheikhupura in a private complaint filed by Riasat Ali (complainant) under sections 302, 109, 148 and 149 P.P.C. Against Abdur Rauf, Abid Shaheen, Nazir Ahmad and Farooq (appellants) along with Zafar (Jamshaid), Zulfiqar Ali and Liaqat Ali accused persons (since acquitted), whereby, Abdur Rauf and Abid Shaheen (appellants) were convicted under section 302(b), P.P.C., and were sentenced to death with the direction to pay Rs,2,00,000 (rupees two lac) each as compensation to the legal heirs of Liaqat Ali (deceased), as envisaged under section 544-A of the Code of Criminal Procedure, which was ordered to be recovered as arrears of land revenue and in default thereof, to further undergo simple imprisonment for six months' each whereas, Nazir Ahmad and Farooq (appellants) were convicted under section 302(c), P.P.C. And sentenced to rigorous imprisonment
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for ten years each with the direction to pay Rs,25,000 (rupees twenty-five thousand) each, as compensation to be paid to the legal heirs of Liaqat Ali (deceased), as envisaged under section 544-A of the Code of Criminal Procedure, which was ordered to be recovered as arrears of land revenue and in default thereof, to further undergo simple imprisonment for six months each. The appellants were awarded the benefit of section 382-8 of the Code of Criminal Procedure. ' The learned trial Court, however, through the same judgment, acquitted Zafar alias Jamshaid, Zulfiqar Ali and Liaqat Ali, co-accused, of the appellants. Riasat Ali (complainant) filed a petition for Special Leave to Appeal i,e, P.S.L.A. No,78 of 2008 against their acquittal, which was dismissed by this Court vide order dated 30-4-2009. Riasat Ali (complainant) also filed a Petition for Special Leave to Appeal (P.S.L.A. No,79 of 2008) for the conviction and sentence of Nazir Ahmad and Farooq under section 302(b), P.P.C. Instead of section 302(c), P.P.C., which was admitted by this Court vide order dated 30-4-2009 and the said petition was converted into Criminal Appeal No,673 of 2009. 2. Brief facts of the case, as disclosed by Riasat Ali, -complainant (P.W.7), in private complaint (Exh- PJ), are that he (complainant) was resident of Mauza Sahoki Malian and was a cultivator by profession. On 13-7-2005 at about 7-00/ 7-30 a.m., he (complainant) along with Liaqat Ali (deceased) and Zulfiqar Ali (P.W.8) was going to the cowl of Ch. Abdul Sattar, Addl. Sessions Judge, Sheikhupura to attend the proceedings of case F.I.R. No,275 of 2003, under sections 302, 148 and 149 P.P.C. Registered at Police Station Saddar Sheikhupura titled as Muhammad Shafi v. Iftikhar Ahmed and others on bicycles whereas, Shaukat Ali (given up P.W.) was also going on a cycle to deliver milk along with them. Liaqat All (deceased) was going ahead of the complainant and his companions and when they all reached at a distance of one acre from the bridge of Saim Nala, LahoreSheikhupura Road, a white colour car was standing there Abdur Rauf (appellant) armed with Kalashnikov, Abid Shaheen (appellant) armed with Kalashnikov, Nazir Ahmad (appellant) armed with .222 bore rifle, Farooq (appellant) armed with mouser Zafar (Jamshaid) accused (since acquitted) empty-handed, who were hiding behind the said white colour car, suddenly came in front of them. Zafar accused (since acquitted) raised lalkara that Liaqat All (deceased) etc. Be taught a lesson for committing the murder of Muhammad Yaqoob. Upon which, Abdur Rauf and Abid Shaheen (appellants) made bursts with their respective Kalashnikovs which landed on the front at the left side of the chest of Liaqat Ali (deceased) who fell down. One fire shot hit Liaqat Ali (deceased) on the right side of abdomen near umbilicus, one fire shot landed on the chest, below the right armpit and one fire shot landed on the arm of Liaqat All (deceased) who succumbed to the injuries at the spot. The complainant and other witnesses saved their lives by running. Nazir Ahmad and Muhammad Farooq (appellants) resorted to aerial firing with their respective weapons. The accused persons fled away from the spot on the white colour car. The complainant and the witnesses tried to shift Liaqat Ali (deceased) to the Civil Hospital, Sheikhupura but he was already dead. The motive for the occurrence, as stated by the complainant in private complaint (Exh-PJ), was that about 2-1/4 years prior to the occurrence, Muhammad Yaqoob, brother of Abdur Rauf (appellant) and father of Abid Shaheen (appellant) was murdered and the case was registered against Liaqat Ali (deceased) etc., which was fixed for hearing on 13-7-2005. Due to this grudge, Abdur Rauf etc. At the abetment of Zulfiqar Ali and Liaqat Ali accused persons (since acquitted) committed the murder of Liaqat Ali (deceased). The complainant after the occurrence, on 13-7-2005 at 08.20 a.m, reported the matter to the police through written application (Exh-PG), on the basis of which, the formal F.I.R. (Exh-PG/1) was lodged. Thereafter, being dissatisfied with the police investigation, the complainant filed a private complaint against the appellants and their coaccused(since acquitted). 3. Abid Shaheen (appellant) was arrested in this case on 21-7-2005 by Naveed Sikandar, S.1. (CW- 3), who was already in judicial lock-up in some other case. Abdur Rauf (appellant) was arrested in this case on 9-8-2005 by Haji Qasim Ali, Inspector (CW-2), who on 16-8-2005, while in police
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custody, after making disclosure, got recovered Kalashnikov (P-6) along with magazine containing ten live bullets (P-7/1-10), which was taken into possession vide recovery memo Exh-PH whereas, nothing was recovered from,Abid Shaheen, Nazir Ahmad and Farooq (appellants). Nazir Ahmad and Farooq (appellants) were also declared innocent by the Investigating Officer Haji. Qasim Ali, Inspector (CW-2). After completion of investigation, the challan was prepared and submitted before the learned trial Court. The learned trial Court, after observing legal formalities, as provided under the Code of Criminal Procedure, 1898 framed charge against the appellants and their co- accused (since acquitted) on 13-2-2006 to which they pleaded not guilty and claimed trial. 4. In order to prove its case, the prosecution produced ten witnesses, during the trial. Riasat Ali, complainant (P.W.7) and Zulfiqar Ali (P.W.'8) furnished the ocular account of the prosecution case. They are also the witnesses of recovery of Kalashnikov allegedly recovered at the instance of Abdur Rauf (appellant). ' The medical evidence was furnished by Dr Munir Ahmad Gauri (P.W.2) who conducted the postmortem examination on the dead body of Liaqat Ali (deceased). ' During the trial, three Court witnesses were also examined. Haji Qasim Ali, Inspector (CW-2) and Naveed. Sikandar, S.I (CW-3) are the Investigating Officers of the case. Sharafat Ali (P.W.9) is the witness of abetment. Imdad Ali, (P.W.1), Muhammad Riaz (P.W.3), Khalid Mehmood, A.S.-I. (P.W.4), Abdul Salam 709/C (P.W.5), Muhammad Younis 38/C (P.W.6), and Muhammad Jahangir, A.S.I. (CW- 1) are the formal witnesses. The prosecution also produced documentary. Evidence in the shape of recovery memo of last worn clothes of the deceased (Exh-PA), postmortem report along with pictorial diagram (Exh-PB and Exh-PB/1), rough site plan of the place of occurrence (Exh-PB), application for postmortem examination (Exh-PC), injury statement of the deceased (Exh-PD), inquest report (Exh-PE), scaled site plan of the place of occurrence, in duplicate (Exh-PF & Exh- PF/1), application for registration of case (Exh-PG), F.I.R. (Exh-PG/1), recovery memo of Kalashnikov (P-6) along with ten live bullets (P-7/1-10) allegedly recovered at the instance of Abdur Rauf appellant (Exh-PH), rough site plan of place of recovery of Kalashnikov (Exh-PH/1), private complaint (Exh-PJ), recovery memo of crime empties of Kalashnikov (Exh-PK), recovery memo of blood-stained earth (Exh-PL), recovery Memo of bicycle of the deceased (Exh-PM), recovery memo of car (Exh-PN), report of the Chemical Examiner (Exh-PK), report of the Forensic Science Laboratory (Exh-PL), report of the Chemical Examiner (Exh.-PM) and closed - its evidence. ' The statements of the appellants and their co-accused (since acquitted), under section 342 of the Code of Criminal Procedure, were recorded on 20-10-2008. They refuted the allegations levelled against them and professed their innocence. While answering to a question that "Why this case against you and why the P. Ws. Have deposed against you?" Abid. Shaheen (appellant) replied as under:-- "1 along with my whole family have been falsely involved in this murder case on account of enmity. Neither 1 was present at the time of occurrence nor did I participate in the same. In fact I was arrested by Police Station Sadar Farooqabad in case F.I.R. No,222/2005, dated 12-7-2005 under section 3/4/4/79 Hadood and was sent to District Jail, Sheikhupura on 13-7-2005 and was released by the orders of learned Magistrate on 27-9-2005 as 1 was arrested from the jail premises." ' Abdur Rauf (appellant) to the same question replied as under:-- "I along with my whole family have been falsely involved in this murder case on account of enmity." ' Nazir Ahmad and. Farooq (appellants), to the said question, replied on the same lines. Their reply is as under:-- "I have falsely and maliciously been implicated in this murder case due to enmity. I was found innocent during investigation and not challaned, as the prosecution has submitted no solid
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evidence against me. I was neither present at the spot at the time of occurrences nor I did participate in the same." ' The appellants did not opt to make statements on oath as provided under section 340(2) of the Code of Criminal Procedue, in disproof of the allegations levelled against them, however, produced copy of Rapt No,24 dated 12-7-2005 (Exh-DB), copy of Rapt No, 6 dated 13-7-2005 (Exh-DC), copy of judicial remand passed by the learned Judicial Magistrate, Sheikhupura in case F.I.R. No,222 dated 12-7-2005 under sections 3/4/4/79, Hadood Ordinance (Exh-DD and Exh-DD/1), certificate issued by the Superintendent, District Jail, Sheikhupura regarding entry and exit of Abid Shaheen (appellant) from jail (Exh-DE), order passed by the learned Judicial Magistrate, Sheikhupura dated 13-7-2005 (Exh-DF and Exh-DF/1), certificate issued by the Superintendent District Jail, Sheikhupura (Exh-DG), F.I.R. No, 275 dated 18-3-2003 registered under sections 302, 148 and 149, P.P.C. (Exh-DH), copy of F.I.R. No, 89/98 (Exh-DI), copy of F.I.R. No,805/2004 (Exh-DJ), copy of F.I.R. No,23/2003 (Exh- DK), copy of F.I.R. No,222 of 2005 (Exh-DL), copy of F.I.R. No,223/2005 (Exh-DM), copy of interim orders passed by the learned Addl. Sessions Judge, Sheikhupura (Exh-DN & Exh-DN/1) in their defence. 5. The learned trial Court vide its judgment dated 28-10-2008, found the appellants guilty, convicted and sentenced them as mentioned and detailed above whereas, acquitted Zafar (Jamshaid), Zulfiqar Ali and Liaqat Ali, co-accused of the appellants. 6. Learned counsel for the appellants, in support of this appeal, contend that all the appellants have falsely been implicated in this case; that the incident was not reported to the police at the time mentioned in the F.I.R. i,e, at 08.20 a.m as the occurrence took place close to the main road within the jurisdiction of Police Station B-Division, District Sheikhupura and the DHQ hospital is at a distance of few kilometers from the said place but surprisingly, the postmortem examination on the dead body of the deceased was conducted at 7-00 p.m. On 13-7-2005 i,e, after about eleven hours of reporting the matter to the police which clearly suggests the fact that the case was not registered at the time as mentioned, in the F.I.R.; that this incident took place at 7-30 a.m. Whereas, written application for registration of the case was presented to the police officer at police station and the complainant admitted that he got the application written from District Courts premises and as such, there are chances of deliberation and consultation on the part of the complainant; that no petition writer was examined in support of the above-mentioned version of the complainant; that the motive alleged in the F.I.R. (Exh-PG/1) was the earlier murder of Muhammad Yaqoob, father of Abid Shaheen (appellant) and brother of Abdur Rauf (appellant) wherein, the deceased and other witnesses were accused and as such, the motive in this case is a double- edged weapon; that if it was the reason for committing the murder of Liaqat Ali (deceased), at the same level and degree, it could be a reason for false implication of the appellants in this case; that the presence of eye-witnesses at the place of occurrence is per chance; that both the witnesses of ocular account were accused in the murder case of motive incident which was registered for the murder of Muhammad Yaqoob, father of Abid Shaheen (appellant) and brother of Abdur Rauf (appellant) and on the day of occurrence, the date of hearing of the said murder case was fixed and it is clear from the interim orders. (Exh-DN) passed by the learned trial Court that on that day the presence of the complainant and Zulfiqar Ali (P.W.8) was marked in the court and qua Liaqat Ali, it was observed that he did not appear and as such, his non-bailable warrants of arrest were issued and notice was also issued to his surety and in the circumstances, it can safely be presumed that the witnesses of ocular account were not present at the spot and had they been present at the place of occurrence, they could have informed the court regarding the incident which took place before their eyes as they were present before the court along with their learned counsel; that the eyewitnesses are inimical, chance and interested and their evidence cannot be accepted until and unless, it is corroborated by same other independent evidence which is very much lacking in this case; that nothing was recovered from Abid Shaheen (appellant). As far as
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recovery of Kalashnikov from Abdur Rauf (appellant) is concerned, learned counsel contend that the same is not helpful to the prosecution rather it damages the case of the prosecution as empties of Kalashnikov recovered from the place of occurrence did not match with the Kalashnikov allegedly recovered at the instance of Abdur Rauf (appellant); that the learned trial Court has wrongly treated the report of the Forensic Science Laboratory as positive which was in fact negative; that as per prosecution case, Nazir Ahmad and Farood (appellants) also resorted to firing with .222 bore rifle and mouser, respectively, but except the empties of Kalashnikov, no empty of any other firearm was recovered from the spot; that the doctor who conducted the postmortem examination on the dead body of Liaqat Ali (deceased) has admitted that the injuries on the person of the deceased were result of one burst of Kalashnikov therefore, version of the prosecution that Abdur Rauf and Abid Shaheen (appellants) both caused injuries to the deceased is incorrect; that degree of the enmity with the deceased, complainant and other witness was the same as they all were accused in the murder case of motive incident and even the complainant has stated that he was declared innocent by the police in the said case and had he and other eye- witness been present at the spot, they could not have escaped but they did wit receive even a single scratch on their bodies; that the doctor who conducted the postmortem examination on the dead body of the deceased noted blackening and tattooing around entry wounds, which suggests that he was fired at from a very close range whereas, as per scaled site plan (Exh-PF), the appellants were at a distance of twenty feet from the deceased and as such, the ocular account furnished by these two witnesses is contradictory with the medical evidence available on the record. So far as Abid Shaheen (appellant) is concerned, learned counsel for the appellants contend that he was not present at the spot because one day prior to the occurrence i,e, on 12-7- 2005, he was arrested, in case F.I.R. No, 222 dated 12-7-2005 registered at Police Station Saddar Farooq Abad under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order IV of 1979; that to support this plea, the F.I.R. Of said case along with order of the learned Magistrate by whose order, Abid Shaheen (appellant) was sent to jail on 13-7-2005 was produced by the defence as Exh-DD and Exh-DB/1; that even the report prepared by the Superintendent Jail was also produced on record as Exh-DE; that the Investigating Officer of the case (CW-3) has stated that during his investigation, it was established that Abid Shaheen (appellant) was already under in custody in above said case at the time of occurrence. ' As far as Nazir Ahmad and Farooq (appellants) are concerned, learned counsel for the appellants contend that they have been convicted under section 302(c), P.P.C. But there was no allegation against them that they caused any injury to the deceased; that the allegation against them was that they resorted to aerial firing; that no empty of the firearm allegedly used by these appellants was recovered from the spot; that no weapon of offence was recovered from them; that the prosecution miserably failed to prove its case against all the appellants, therefore, their appeal (Criminal Appeal No,1107 of 2008) may be accepted, Criminal Appeal No,673 of 2009 and Criminal Revision No,732 of 2008 be dismissed and the appellants may be acquitted from the charges. 7. On the other hand, learned Deputy Prosecutor-General for the State, assisted by learned counsel for the complainant vehemently opposes this appeal on the grounds that this incident took place on 13-7-2005 at about 7-30 a.m. Whereas, the matter was reported to the police on the same day at 8-20 a.m. And the formal F.I.R. Was also registered on the same day at 8-20 a.m. That there is nothing on the record to suggest that the postmortem examination was delayed because of non- submission of police papers or non-availability of the dead body as no question in this respect was asked from the doctor; that the presence of the witnesses cannot be treated as chance witnesses because they were going to the court to attend the hearing of the case which fact has not been denied by the defence side; that though the eye-witnesses are related to the deceased but they can be relied upon if their evidence is confidence inspiring and gets support from other evidence;
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that they have categorically stated that Abid Shaheen and Abdur Rauf (appellants) resorted to firing at the deceased which hit on different parts of his body and the medical evidence - supports the ocular account as the deceased: received firearm injuries. So far as the distance mentioned in the scaled site plan is concerned, learned counsel for the complainant contends that this is tentative assessm ent and witnesses have stated during their cross-examination that the deceased was at a distance of six feet from the appellants at the time of occurrence and even otherwise, the eye-witnesses are rustic villagers and not expected to give the exact distance; that the motive has not been disputed rather it was accepted by the defence. So far as the plea of Abid Shaheen (appellant) is concerned, learned counsel contends that it is the case of Abid Shaheen (appellant) that he was arrested in some other case on 12-7-2005 but he did not appear as his own witness in support of his plea; that this plea, in full, was never put to the prosecution witnesses to get their response and moreover, the police officer who arrested the appellant Abid Shaheen was not produced in the witness box and similarly, no body from jail was examined in his defence and the document tendered by the appellant i,e, Exh-DE was inadmissible in evidence and from the order of the learned Magistrate it is not determinable as to when the appellant was arrested in this case and at what time he was produced before the learned Magistrate on 13-7-2005; that even the Investigating Officer in cross-examination has admitted that he did not see the record of said case in which he was arrested, therefore, the plea of Abid Shaheen (appellant) could not be established; that the appellant has not been able to establish his plea; that Criminal - Appeal No,1107 of 2008, filed by all the appellants may kindly be dismissed. 8. So far as Criminal Appeal No,673 of 2009 is concerned, learned counsel, for the complainant contends that Nazir Ahmad and Farooq appellants (respondents in this appeal) were present at, the spot, resorted to firing and as such, shared common intention with their co-accused and they have been wrongly convicted under section 302(c), P.P.C., therefore, they may also be convicted under section 302(b), P.P.C.; that Criminal Revision No,732 of 2008 he also accepted and compensation amount may kindly be enhanced. 9. We have heard the arguments of learned counsel for the appellants, learned Deputy Prosecutor-General assisted by learned counsel for the complainant and have also gone through the record with their able assistance. 10; The detail of the prosecution case as set forth in the private complaint (Exh-PJ) has already been given in paragraph No,2 of the judgment, therefore, there is no need to repeat the same. The occurrence in this case took place on 13-7-2005 at 07.30 a.m; the matter was reported to the police on the same day at 8-20 a.m and the formal F.I.R. Was also recorded on the same day at 08.20 a.m. The distance between the place of occurrence and the police station is two kilometers. Although the complainant has stated that he got the application (Exh-PG) drafted from District Courts premises but at the same time, he has also stated that he did not consult with his lawyer at the time of drafting of the said application. As the F.I.R. (Exh-PG/1) was lodged within a period of fifty minutes from the occurrence, whereas, the place of occurrence was at a distance of two kilometers from the police station. We are, therefore, of the view that there is no conscious or deliberate delay in reporting the matter to the police and the F.I.R. Was lodged with promptitude, 11. First of all, we will take up the case of Nazir Ahmad and Farooq (appellants). We have noted that no injury on the person of the deceased was attributed to the said appellants. Although it was alleged in the private complaint that Nazir Ahmad (appellant) was armed with .222 bore rifle and Farooq (appellant) was armed with mouser at the time of occurrence and they resorted to aerial firing but no weapon of offence was recovered from both these appellants during the investigation of this case. It is also noteworthy that sixteen crime empties were secured from the spot and all the said crime empties were of 7.62 MM bore. No crime empty of .222 bore rifle or mouzere was secured from the spot. No motive was alleged against Nazir Ahmad and Farooq (appellants). We are,
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therefore, of the view that possibility of false implication of said appellants by the complainant by using wider net cannot be ruled out in this case. We, therefore, partly allow Criminal Appeal No, 1107 of 2008, to the extent of Nazir Ahmad and Farooq (appellants), set aside the judgment of learned Addl. Sessions Judge, Sheikhupura dated 28-10-2008, to their extent and…
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