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Petitioner: Hasnat Ahmed VS Respondent: The State and another
Court Name: Lahore High Court Judge(s): Sadiq Mahmud Khurram Title: Hasnat Ahmed vs The State and another Case No.: (1) Criminal Appeal No. 215 of 2020 (2) Criminal Revision No. 61 of 2020 Date of Judgment:2021-02-17 Reported As: 2021 LHC 322, 2023 YLR 585 Result: Appeal dismissed
JUDGMENT
JUDGMENT SADIQ MAHMUD KHURRAM, J. The appellant namely Hasnat Ahmed son of Muhammad Hussain was tried by the learned Additional Sessions Judge/Model Criminal Trial Court (MCTC), Chakwal alongwith his co-accused namely Muhammad Hussain and Abdul Manan alias Imran (both since acquitted) in case FIR No. 30 of 2019 dated 16.04.2019 registered at Police Station Neela, District Chakwal in respect of offences under sections 302 and 34 PPC for committing the Qatl-i-Amd of Mubashir Mehmood son of Muhammad Dura iz (deceased). The learned trial court vide judgment dated 24.02.2020 convicted Hasnat Ahmed son of Muhammad Hussain (convict) and sentenced him as infra: Hasnat Ahmed son of Muhammad Hussain: Imprisonment for Life under section 302(b) PPC as Tazir for committing Qatl-i-Amd of Mubashir Mehmood son of Muhammad Duraiz (deceased) and directed to pay Rs.5,00,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased, in case of default thereof, the convict was further directed to undergo simple imprisonment for six months. The benefit provided under section 382-B of the Code of Criminal Procedure, 1898, was extended to the convict by the learned trial court. Muhammad Hussain and Abdul Manan alias Imran, the co-accused of the convict, were however acquitted by the learned trial court. 2. Feeling aggrieved, Hasnat Ahmed son of Muhammad Hussain (convict) lodged the Criminal Appeal No.215 of 2020 assailing his conviction and sentence. Muhammad Qadeer , the complainant of the case, filed Criminal Revision 61 of 2020 seeking the enhancement of the sentence of the convict namely Hasnat Ahmed son of Muhammad Hussain. This Court intends to dispose of the Criminal Appeal 215 of 2020 and Criminal Revision No. 61 of 2020 through this single judgment.
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3. Precisely , the necessary facts of the prosecution case, as narrated by Muhammad Qadeer (PW-5) before the learned trial court, are as under:- "On 15.04.2019 at about 09.00 p.m myself and my brothers Mubashir Mehmood (deceased) and Muhammad Nazir went in the jungle land/area of Dhok Hatta r Dakhli Hasil in search of our cattle which had not returned after grazing and we all were proceeding back home when Mubashir Mehmood (deceased) was a little ahead of us and at 12.10 a.m (16.04.2019) (midnight) when we arrived near Dera of Muhammad Hussain accused present before the court, we heard the shrieks of our brother Mubashir Mehmood deceased on which we were attracted to the venue of occurrence and saw that door of Bethak of Muhammad Hussain was open, light was on and we saw that Muhammad Hussain , present in the court, armed with Danda, Hasnat, accused present in custody and Imran alias Manan, accused present in custody , were there in said Bethak who had befallen Mubashir Mehmood in the bethak Muhammad Hussain accused exhorted that he would not be let go alive and within our view and presence Hasnat Ahmad fired a shot with pistol hitting Mubashir Mehmood on front on the chest, Hasnat Ahmad fired a second fire shot with pistol hitting Mubashir on right flank and again Hasnat Ahmad fired a shot with a pistol hitting Mubashir on right elbow , Imran accused fired a shot with his pistol hitting Mubashir Mehmood on the back and Imran accused then fired another shot with pistol hitting on left forearm of Mubashir Mehmood (deceased) who got seriously injured while the accused persons while firing and extending threats ran away towards the Jungle. Motive for commission of said occurrence/crime by the accused persons is that few days before this occurrence my brother Mubashir Mehmood (deceased) had a quarrel with Hasnat Ahmad accused due to the dogs and the accused persons have nourished a grudge due to that reason the accused persons had inflicted firearm injuries upon my brother in their Bethak and in this way committed great highhandedness. Myself and Muhammad Nazir took Mubashir Mehmood in a private vehicle to DHQ Hospital where Muhammad Akram S.I recorded my statement/report about the occurrence (Ex-PB) which was read over to me and I put my signatures as well as thumb impression in token of its correctness. On 16.04.2019 I was present with Muhammad Akram S.I P.S Neela when he recovered blood through cotton from the above mentioned place of occurrence and made it into a sealed parcel in a "Dabbi" (P-4) which was taken into possession vide recovery memo Ex-PK and said I.O also recovered and took into possession 04 empties of 30- bore pistol (P-5) which were taken into possession vide recovery memo Ex-PL. Both the recovery memos were signed by me as well as by my brother Muhammad Nazir PW who was also present on said occasion at the spot with me and the police." 4. After the formal investigation of the case report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial Court, wherein the appellant namely Hasnat Ahmed son of Muhammad Hussain and his co-accused namely Muhammad Hussain and Abdul Manan alias Imran (both since acquitted) were sent to face trial. The learned trial court framed the charge against the accused on 12.06.2019, to which the accused pleaded not guilty and claimed trial. 5. The prosecution in order to prove its case got as many as ten witnesses examined. Muhammad Qadeer (PW-5) and Muhammad Nazir (PW-6) gave evide nce regarding the ocular account. Muha mmad Munir , draftsman (PW-1) prepared the scaled site plan of the place of occurrence. Mohsin Raza, 105/HC (PW-2) stated that on 16.04.2019 he got recorded the formal FIR (Exh. PC) and on the same day Muhammad Akram, S.I. (PW-9) handed over to him two sealed parcels said to contain an empty fired from a pistol and blood stained cotton which on 23.04.2019 he handed the said parcels to Muhammad Akram, S.I. (PW-9) for their onward transmission to the office of Punjab Forensic Science Agency , Lahore. Mohsin Raza 105/HC (PW-2) further stated that on 05.05.2019 Nazar Hayat, S.I. (PW-8) handed over to him a sealed parcel said to contain a pistol which on 08.05.2019 he handed over the said parcel to Nazar Hayat (PW-8) for its onward transmission to the office of Punjab Forensic Science Agency , Lahore. Kashif Munir 204/C (PW-4) stated that on 16.04.2019 he escorted Mubashar Mehmood (then injured later deceased) to the hospital for his medical examination and received the last worn clothes of Mubashar Mehmood (then injured later deceased) from the Medical Officer. Sajawal Hussain (PW-7) stated that on 26.04.2019 he identified the dead body of the deceased at the time of its post mortem examination and on 05.05.2019 the appellant led to the recovery of the pisto l (P-6) in his presence. Nazar Hayat, S.I. (PW-8) investigated the case
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from 25.04.2019 till 10.05.2019 and narrated the facts of the investigation conducted in his statement before the learned trial court. Muhammad Akram, S.I. (PW-9) investigated the case from 16.04.2019 till 25.04.2019, arrested the accused on 24.04.2019 and narrated the facts of the investigation conducted in his statement before the learned trial court. Muhammad Zarait Balouch, Inspector (PW-10) investigated the case from 31.05.2019 till 23.10.2019 and narrated the facts of the investigation conducted in his statement before the learned trial court. 6. The prosecution also got Dr. Taimoor Ahmad (PW-3) examined, who on 16.04.2019 was posted as Medical Officer at DHQ Hospital Chakwal and on the same day at about 3.57 a.m exam ined Mubashar Mehmood (then injured later deceased) and observed as under:- "Description of injuries:- 1. Entry wound 1.5 x 1.5 cm, 6 cm below and medial to left nipple on the left side of chest, margins inverted and lacerated, blackening of the wound present. Exit 10 cm below the sternal notch, 06 x 02 cm long, wound on the chest, margins are everted. 2. Entry wound 25 cm above superior iliac spine on the posterior lateral aspect of right lower chest, 02 x 1.5 cm. Black wound with margins inverted and lacerated. Exit 14 cm below left nipple on anterior axillary line in left lower chest, margins everted and lacerated with bruising around the wound (2.5 x 1.5 cm). 3. Entry wound 6 cm above wrist on left forearm anteriorly 1 x 1 cm margins inverted and lacerated. Exit 05 cm above wrist joint on palmer side in left thumb, wound is 1.5 x 1 cm, margins everted. 4. Entry wound 4 cm below right elbow on posterior forearm, blackening of the wound (5 x 0.5 cm), margins inverted and lacerated. Exit 06 cm above elbow on right arm posterior side of the arm, 1 x 0.5 cm approximately margins everted and lacerated. 5. Entry wound 1 x 1 cm approximately in the center of the thoracic spine, margin s inverted and lacerated, no exit wound present." Dr. Taimoor Ahmad (PW-3) also conducted the post mortem examination of the dead body of the deceased Mubashar Mehmood son of Muhammad Doraiz on 26.04.2019 and observed the same Medico Legal Examination Certificate (Exh. PD) and further opined as under:- "Final Opinion. In my opinion, the primary cause of death is firearm injury leading to multiple organs damaged which lead to surgery and later sepsis and multi organs failure and death." 7. On 20.02.2020, the learned ADPP gave up prosecution witness namely Tajamm al Abbas as being unnecessary and closed the prosecution evidence after tendering in evidence the report of the Punjab Forensic Science Agency , Lahore (Exh. PV) regarding the blood-sta ined cotton and the report of Punjab Forensic Science Agency , Lahore (Exh. PW) regarding the comparison of the pistol and empty . 8. After the closure of prosecution evidence, the learned trial court examined the appellant namely Hasnat Ahmad son of Muhammad Hussain under section 342 Cr.P.C. and in answer to the questio n why this case against you and why the PWs have deposed against you, he replied that he was innocent and had been falsely involved in the case. The appellant namely Hasnat Ahmad son of Muhammad Hussain opted not to get himself examined under section 340(2) of the Cr . P.C, and did not adduce any evidence in his defence. 9. On the conclusion of the trial, the learned Additional Sessions Judge/Model Criminal Trial Court (MCTC), Chakwal convicted and sentenced the appellant as referred to above. 10. The contention of the learned counsel for the appellant precisely is that whole case is fabricated and false and the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence. Learned counsel for the appellant, further contended that the story of the prosecution mentioned in the F.I.R., on the face of it, is highly improbable. Learned counsel for the appellant further contended that the statements of the witnesses were not worthy of any reliance. The learned counsel for the appellant also submitted that the recovery was full of procedural defects, of no legal worth and value and result of fake proceedings. The learned counsel for the appellant also argued that the appellant had been involved in the occurrence due to enmity . The learned counsel for the appellant finally submitted that the prosecution has totally failed to prove the case against the accused beyond the shadow of a doubt.
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11. On the other hand, the learned Deputy District Public Prosecutor along with the learned counsel for the complainant contended that the prosecution has proved its case beyond a shadow of a doubt by producing independent witnesses. They further argued that the deceased died as a result of injuries suffered at the hands of the appellant. They further contended that the medical evidence also corroborated the statements of Muhammad Qadeer (PW-5) and Muhammad Nazir (PW-6) and the dying declaration of Mubashar Mehmood (deceased). They further argued that the recovery of the pistol (P-6) from the appellant namely Hasnat Ahmad son of Muhammad Hussain also corroborated the ocular account. They contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offender with the innocent in this case. Lastly , they prayed for the rejection of the appeal. 12. I have heard the learned counsel for the appellant, the learned counsel for the complainant, the learned Deputy District Public Prosecutor and with their assistance, carefully perused the record and evidence recorded during the trial. 13. The whole prosecution case revolves around the statements of Muhammad Qadeer (PW-5) and Muhammad Nazir (PW-6). The relationship of the said witnesses with the deceased is on record. Mubashar Mehmood, deceased, was the brother of both Muhammad Qadeer (PW-5) and Muhammad Nazir (PW-6). Muhammad Qadeer (PW-5) and Muhammad Nazir (PW-6) were admittedly not the residents of the place of occurrence. According to Nazar Hayat, S.I. (PW-8), the Investigatin g Officer of the case, the witnesses namely Muhammad Qadeer (PW-5) and Muhammad Nazir (PW-6) had their residence at the distance of about 1.5 kilometres from the place of occurrence. Muhammad Nazir (PW-6) stated that their residence was at a distance from the place of occurrence which distance could be covered within 8 to 10 minutes. Both the witnesses namely Muhammad Qadeer (PW-5) and Muhammad Nazir (PW-6) lived in the same house alongwith the deceased. It is an admitted fact that none of the prosecution witnesses namely Muhammad Qadeer (PW-5) and Muhammad Nazir (PW-6) had their residences or their houses or any temporary residence near the place of occurrence. This Court has also perused the scaled site plan of the place of occurrence (Exh. PA) as prepared by Muhammad Munir , Draftsman (PW-1) and the rough site plan (Exh.PS) as prepared by Muhammad Akram, S.I. (PW-9) and finds that neither any house nor any shop nor any temporary place of residence belonging to Muhammad Qadeer (PW-5) and Muhammad Nazir (PW-6) is marked in the same. In this manner , both the witnesses namely Muhammad Qadeer (PW-5) and Muhammad Nazir (PW-6) can be termed as "chance witnesses". Both the witnesses namely Muhammad Qadeer (PW-5) and Muhammad Nazir (PW-6), being not the residents of the place of occurrence, were under a bounden duty to prove, through evidence, the reason for their chance presence at the place of occurrence, at the time of occurrence. Both the witnesses namely Muhammad Qadeer (PW-5) and Muhammad Nazir (PW-6) failed to prove the reason for them to be present at the place of occurrence, a place which was at a distance of as much as about 1.5 kilometres from their residence and that too at 12:10 a.m. in the night . Both the witnesses namely Muhammad Qadeer (PW- 5) and Muhammad Nazir (PW-6) claimed that they along with their deceased brother had gone to a jungle within the area of Dhok Hattar Dakhli Hasil in search of their cattle which had not returned and when they were returning from the said jungle, on a path back to their residence, they witnessed the occurrence. According to the witnesses namely Muhammad Qadeer (PW-5) and Muhammad Nazir (PW-6) they had left their residence on 15.04.2019 at about 9.00 p.m in search of the cattle whereas they witnessed the occurrence on 16.04.2019 at about 12:10 a.m. in the night. Muhammad Qadeer (PW-5) during cross-examination stated that the Jungle to which they had proceeded in search of their cattle was situated on the western side of Moran Wali Bunn and the distance between the place of occurrence and the said Moran Wali Bunn was about one kilometre. Muhammad Qadeer (PW-5) during cross-examination admitted that he had not mentioned the number of the cattle which had gone missing in his oral statement (Exh. PB). Nazar Hayat, (PW-8), the Investigating Officer of the case, stated that during the investigation of the case, Muhammad Qadeer (PW-5) and Muhammad Nazir (PW-6) did not show him the cattle which had gone missing and for the search of which the said witnesses had proceeded from their residence. Similarly , Muhammad Akram, S.I. (PW-9), another Investigating Officer of the case, also stated during cross- examination that none of the witnesses told him about the number of the cattle which had gone missing and for whose search the witnesses had procee ded from their house. Furthermore, Muhammad Qadeer (PW-5) stated
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during cross-examination that there was only one passage leading to the jungle and the witnesses namely Muhammad Qadeer (PW-5) and Muhammad Nazir (PW-6) were returning to their residence using the said path when they witnessed the occurrence. Muhammad Akram, S.I. (PW-9), the Investig ating Officer of the case, stated that in the rough site plan of the place of occurrence (Exh. PS) as prepared by him he had not shown any passage leading from the jungle to the place of occurrence, contrary claim of both Muhammad Qadeer (PW-5) and Muhammad Nazir (PW-6) who had state d that when they were returning from the jungle on a path towards their own house, they witnessed the occurrence. Muhammad Akram, S.I. (PW-9) , the Investigating Officer of the case stated as under:- "I did not show any passage in site plan which might have led from dera of Muhammad Hussain to Jungle." Similarly , Muhammad Munir , draftsman (PW-1) also admitted during cross-examination that he had not shown any passage in the scaled site plan of the place of occurrence (Exh. PA). Muhammad Munir , draftsman (PW-1) stated as under:- "I have not mentioned the passage from which the PWs and the deceased had come. I have not shown the Jungle as well as its distance from the house of occurrence. I had seen the Jungle situated in that vicinity which was at a distance of 02/03 kilometers from the house of occurrence." In this manner , the prosecution witnesses namely Muhammad Qadeer (PW-5) and Muhammad Nazir (PW-6) failed miserably to establish the reason for their presence at the place of occurrence at the time of occurrence. This Court has also noted that both the witnesses namely Muhammad Qadeer (PW-5) and Muhammad Nazir (PW-6) claimed that after the occurrence they brought the then injured Mubashar Mehmood (deceased) to their house while holding him. In such a scenario the clothes of both Muhammad Qadeer (PW-5) and Muhammad Nazir (PW-6) should have been smeared with blood however Muham mad Akram, SI (PW-9), the Investigating Officer of the case, did not take any such blood-stained clothes of the witnesses in possession. Muhammad Akram, SI (PW-09), the Investigating Officer of the case, who otherwise showed extraordinary interest in the case, did not take the clothes of the eye witnesses, which were stained with blood, into possession and if these were sent to the Punjab Forensic Science Agency , Lahore for examination and grouping with that of the blood-stained clothes of the deceased, the same would have provided the strongest corroboration to the testimony of the two eye witnesses namely Muhammad Qadeer (PW-5) and Muhammad Nazir (PW-6). This omission strikes at the roots of the case of the prosecution and lays bare the untruthful and false claim of the said witnesses to have been present at the place of occurrence, at the time of occurrence. Both these witnesses were under a duty to provide a convin cing explanation, appealing to a prudent mind, of their presence at the crime spot otherwise their testimony has to be declared questionable and unacceptable. Guidance is sought from the principle enunciated by the august Supreme Court of Pakistan in the case of Mst. SUGHRA BEGUM and another versus QAISER PERVEZ and others (2015 SCMR 1142) wherein it has been held as under:- "20. Both the eye-witnesses admitted that their clothes were stained with the blood of the deceased while lifting and handling him but the investigating officer , otherwise showing extraordinary interest in the case, did not take the same into possession because if these were sent to the Chemical Examiner for examination and grouping with that of the blood stained clothes of the deceased, the same would have provided strongest corroboration to the testimony of the two eye-witnesses. This omission strikes at the roots of the case of the prosecution and bespeaks volumes about the dishonest and false claim of the said witnesses." The august Supreme Court of Pakistan in the case of Mst. MIR ZALAI versus GHAZI KHAN and others (2020 SCMR 319 ) has held as under:- "Both the eye-witnesses produced by the prosecution had claimed that while handling Afsar Khan deceased their clothes had been smeared with the blood of the deceased but admittedly no such blood-stained clothes of the said eye-witnesses had been secured or produced". The august Supreme Court of Pakistan in the case of NADEEM alias KALA versus The State and others (2018 SCMR 153 ) has held as under:- "For the following reasons the prosecution case against the appellant is doubtful in nature:-
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(a) .......... (b) Presence of both the witnesses of ocular account i.e. Tariq Mehmood complainant (PW.8) and Tahir Mehmood (PW.9) at the place of occurrence is also not free from doubts. During cross-examination the complainant stated that Maqsood Ahmad (deceased) in injure d condition was shifted to Civil Hospital on a carry van but he could not disclose the registration number of the van or name of the driver of vehicle. He also deposed during his cross- examination that his clothes were also stained with blood but stated that he did not produce the blood stained clothes to the Police." Both Muhammad Qadeer (PW-5) and Muhammad Nazir (PW-6) also claimed that on their way back from the place of occurrence to their residence, the blood of Mubashar Mehmood (then injured later deceased) fell on the path taken by them, however , no blood-stained earth was collected to prove the said claim. Contrary to the statement of both the witnesses namely Muhammad Akram, S.I. (PW -9) during cross-examination stated as under:- "Neither I found blood outside the dera of accused Muhammad Hussain nor the complainant showed me any blood trail on the passage leading from the dera of accused Muhammad Husain to the house of complainant." In a similar manner , Muhammad Qadeer (PW -5) also admitted during cross-examination as under:- "After the occurrence, I and Nazir brought the injured Mubashir Mehmood to him by giving him support. We did not show the trail of blood outside the bethak to police when police came at the spot. We did not tell Patwari about the trail of the blood when he came at the spot." Moreover , though the occurrence had taken place at 12.10 a.m at night and Mubashar Mehmood (then injured later deceased) had received as many as five firearm entry wounds, however , still, he was not taken to the hospital and was brought to his home. Mubashar Mehmood (then injured later deceased) arrived at the hospital at 3.50 a.m i.e after more than 3 1/2 hours of the occurrence. It is hard to believe and is against human conduct that Mubashar Mehmood (then injured later deceased), who had received as many as five firearm entry wounds on his person, kept bleeding at his house for such a long period and was brought to the hospital subsequently . This fact also proves that both the witnesses namely Muhammad Qadeer (PW-5) and Muhammad Nazir (PW-6) were not present and had they been present then they necessarily would have taken the then injured Mubashar Mehmood (deceased) to the hospital. All these omissions are conspicuous by their absence. In absence of physical proof or the reason for the presence of the witnesses at the crime scene, the same cannot be relied upon. In this respect, reliance is placed on the case of "Muhammad Rafiq v. State" (2014 SCMR 1698 ) wherein the august Supreme Court of Pakistan rejected the claim of witnesses who lived one kilometre away from the occurrence, but on the day of occurrence stated to be present near the spot as they working as labourers, inasmuch as they failed to give any detail of the projects they were working on. Reliance is also placed on the case of "Usman alias Kaloo v. State" (2017 SCMR 622) wherein the august Supreme Court of Pakistan held that the ocular account of the incident had been furnished by Zahoor Ahmad complainant, Ghulam Farid and Manzoor Ahmed who were all residents of some other houses and they were not inmates of the house wherein the occurrence had taken place and the said eye- witnesses were, thus, chance witnesses and not worthy of reliance. Reliance is also placed on the case of "Nasrullah alias Nasro v. The State" (2017 SCMR 724) wherein the august Supreme Court of Pakistan observed as under:- "In the case in hand the eye-witnesses produced by the prosecution lived eighty kilometers away from the scene of the crime, their stated reason for…
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