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Official Citation: 2024 YLR 2019
Court / Jurisdiction: Lahore High Court
Year of Decision: 2023
Decision Date: 2023-12-31
Parties: Muhammad Arif vs The State
Ruling Summary: This decision was rendered by the Lahore High Court on 2023-12-31, officially reported as 2024 YLR 2019. In this matter between Muhammad Arif and The State, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2024 YLR 2019
Court Name: Lahore High Court Judge(s): Sadiq Mahmud Khurram, Muhammad Amjad Rafiq Title: Muhammad Arif vs The State Case No.:Criminal Appeal No. 1150-J, Murder Reference No. 135 and Petition for
JUDGMENT
Reported As: 2024 YLR 2019 Result: Appeal allowed Judgment
JUDGMENT SADIQ MAHMUD KHURRAM, J. Muhammad Arif son of Ghulam Haider (convict) was tried along with Ismail son of Ghulam Haider and Muhammad Jalil son of Ghulam Haider (since acquitted), the co- accused of the convict by the learned Sessions Judge, Rajanpur in the case instituted upon the private complaint titled "Ghulam Yaseen v. Muhammad Arif and 3 others" (relating to FIR No. 220 of 2016 dated 15.07.2016 registered at Police Station Saddar Rajanpur, District Rajanpur) in respect of offences under sections 302 and 34, P.P.C. for committing the Qatl-i-Amd of Talib Hussain son of Allah Yar (deceased). The learned trial court vide judgment dated 30.10.2019 convicted Muhammad Arif son of Ghulam Haider (convict) and sentenced him as infra: Muhammad Arif son of Ghulam Haider: Death under section 302(b), P.P.C. as Tazir for committing Qatl-i-Amd of Talib Hussain son of Allah Yar (deceased) and directed to pay Rs.4,00,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased; in case of default of payment of compensation amount, the convict was further directed to undergo six months of simple imprisonment. The convict was ordered to be hanged by his neck till dead. Ismail son of Ghulam Haider and Muhammad Jalil son of Ghulam Haider, the co-accused of the convict, were however acquitted by the learned trial court. Ghulam Haider, another co-accused of the convict, died during the trial and to his extent the proceedings were abated. 2. Feeling aggrieved, Muhammad Arif son of Ghulam Haider (convict) lodged the Criminal Appeal No.1150-J of 2019 through Jail, assailing his conviction and sentence. The learned trial court
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submitted Murder Reference No.135 of 2019 under section 374, Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Muhammad Arif son of Ghulam Haider (convict). The complainant of the case namely Ghulam Yaseen filed Petition for Special Leave to Appeal No.130 of 2019 seeking permission to file an appeal against the acquittal of Ismail son of Ghulam Haider and Muhammad Jalil son of Ghulam Haider, the co-accused of the convict, both since acquitted. We intend to dispose of the Criminal Appeal No.1150-J of 2019, the Petition for Special Leave to Appeal No.130 of 2019 and the Murder Reference No.135 of 2019 through this single judgment. 3. Precisely, the necessary facts of the prosecution case, as stated by Ghulam Yaseen (PW-5), the complainant of the case, are as under:- "Talib Hussain deceased was my elder brother. On 15.07.2016, I along with Talib Hussain and Khalil Ahmad were grazing our sheep and goats near Canal known as Fazil Waha. While one Allah Ditta son of Mallik Hammad was working is nearby cotton field. Then we were taking rest and having gossips along with our cattle under a sheesham tree. At 12:30 p.m. accused persons all of sudden accused persons namely Arif armed with pistol 30-bore, Jalil armed with pistol 30-bore, Ismail armed Sota and Ghulam Haider armed with Sota all present in court in their own motorcycle. Ghulam Haidar and Jalil accused present in court raised Lalkara with the words "be ready and you would not be spared today". Then Jalil accused made a fire at Khalil but luckily Khalil was saved. Then Ghluam Haider and Ismail accused started giving us fits blows while holding us due to fear Talib Hussain ran towards Kachha path, where Ghulam Haidar accused caught hold him and asked Muhammad Arif accused to fire at Talib Hussain after aiming at him. Then Talib Hussain fell down again said. Then Arif accused fired at Talib Hussain which hit him on right side of his mouth and exit through head. Then Talib Hussain fell down and tried to apprehend the accused persons on which all the accused persons threatened us that we will face the same consequences if came closer and due to fear we did not come close to them. We were empty handed. I left Allah Ditta and Khalil PWS with the deadbody and went to inform police about the occurrence. When police met me at Aqilpur where I got recorded my statement. Police also got affixed my thumb impressions on said statement. Police did not read over the statement thing. Then police declared accused Ismail innocent. Thanedar also recorded my statement against the facts as he wrongly mentioned the seat of injury in the statement recorded by him. I kept on moving applications on different forum but nobody attended me. Then I filed instant private complaint which is Ex.P.D. I also affixed my thumb impression on complaint witness is Ex.P.D/1. Motive behind the occurrence was the dispute on digging water course between Talib Hussain deceased and Ghulam Hussain accused one day prior to occurrence. All the accused persons in pursuance of common intention of all committed the instant occurrence." 4. The accused were summoned to face trial in the case instituted upon the private complaint titled "Ghulam Yaseen v. Muhammad Arif and 3 others" (relating to FIR No. 220 of 2016 dated 15.07.2016 registered at Police Station Saddar Rajanpur, District Rajanpur) in respect of offences under sections 302 and 34, P.P.C. for committing the Qatl-i-Amd of Talib Hussain son of Allah Yar (deceased). The learned trial court framed the charge against the accused on 13.05.2017, to which the accused pleaded not guilty and claimed trial. 5. The complainant of the case in order to prove its case got recorded statements of as many as eight witnesses. The ocular account of the case was furnished by Ghulam Yaseen (PW-5) and Khalil Ahmed (PW-6). Shah Daad Khan Patwari (PW-1) prepared the scaled site plan of the place of occurrence (Exh.PA). Shahid Hussain, T/ASI (PW-2) stated that on 15.07.2016 he recorded the formal FIR (Exh. PB/1). Abdul Rashid 6/e (PW-3) stated that on 15.07.2016 he escorted the dead body of the deceased to the hospital and received the last worn clothes of the deceased from the Medical Officer after the post mortem examination of the dead body of the deceased. Abdul Karim (PW-4)
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stated that on 15.07.2016 he identified the dead body of the deceased at the time of post mortem examination and the Medical Officer handed over the last worn clothes of the deceased to the police official after post mortem examination. Allah Bakhsh Asim, ASI (PW-8) stated that on 15.07.2016, the Investigating Officer of the case handed over to him one sealed parcel said to contain blood stained earth and one sealed parcel said to contain empty shells of the bullets collected from the place of occurrence and on 25.08.2016, he handed over the said sealed parcels said to contain blood stained earth and empty shells of the bullets collected from the place of occurrence to Abid Aziz, ASI (CW-1) for their onward transmission to the office of the Punjab Forensic Science Agency, Lahore and on 22.08.2016, Abid Aziz, ASI (CW-1) handed over to him one sealed parcel said to contain a pistol and on 09.10.2016, he handed over the said sealed parcel said to contain a pistol to Abid Aziz, ASI (CW-1) for its onward transmission to the office of the Punjab Forensic Science Agency, Lahore. 6. The complainant also got Dr. Muhammad Adeel Khalid (PW-7) examined, who on 15.07.2016 was posted as Medical Officer at R.H.C. Makhdoom Rasheed and on the same day conducted the post- mortem examination of the dead body of the deceased, namely Talib Hussain son of Allah Yar. Dr. Muhammad Adeel Khalid (PW-7) on examining the dead body of the deceased namely Talib Hussain son of Allah Yar, observed as under:- "There was fire arm entry wound 1.5 x 1 c.m, margins were burnt and inverted, situated on below right angle of mouth with exit wound of 2 x 2 c.m, margins were everted situated on left side of parital bone of skull ............................................ After thorough examination, in my opinion, injury No.1 was ante mortem and caused by fire arm weapon. The injury No.1 was sufficient to cause death due to brain haemorrhage and shock. The probable duration between injury and death was immediate and between death and postmortem it was 5-6 hours probably." 7. The learned trial court examined Abid Aziz, ASI (CW-1), the Investigating Officer of the case, as a Court witness who investigated the case from 15.07.2016 till 11.10.2016, arrested the appellant namely Muhammad Arif son of Ghulam Haider on 14.08.2016 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court. 8. On 18.10.2019, the learned counsel for the complainant gave up the witnesses namely Allah Ditta and Ahmad Yar as being unnecessary. On 25.10.2019, the complainant of the case tendered in evidence the reports of the Punjab Forensic Science Agency, Lahore (Exh.PN and Exh. PO) and closed the prosecution evidence. 9. After the closure of prosecution evidence, the learned trial court examined the appellant namely Muhammad Arif son of Ghulam Haider (convict) and under section 342, Cr.P.C. and in answer to the question why this case against you and why the P.W.s have deposed against you, he replied that he was innocent and had been falsely involved in the case. Muhammad Arif son of Ghulam Haider (convict) further stated that he had not committed any offence and had been made a scapegoat in the case in order to show efficiency by the police. The appellant namely Muhammad Arif son of Ghulam Haider opted not to get himself examined under section 340(2), Cr.P.C and did not adduce any evidence in his defence. 10. At the conclusion of the trial, the learned Sessions Judge, Rajanpur convicted and sentenced the appellant as referred to above. 11. The contention of the learned counsel for the appellant namely Muhammad Arif son of Ghulam precisely is that the 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 statements of the witnesses, on the face of it, was highly improbable. Learned
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counsel for the appellant further contended that the statements of the prosecution witnesses were not worthy of any reliance. The learned counsel for the appellant also submitted that the recovery of the pistol (P-6) from, the appellant namely Muhammad Arif son of Ghulam Haider was full of procedural detects, of no legal worth and value, and were result of fake proceedings. The learned counsel for the appellant also argued that the appellant had been involved in the occurrence only on suspicion. The learned counsel for the appellant finally submitted that the prosecution had totally failed to prove the case against the accused beyond the shadow of a doubt. 11. On the other hand, the learned Additional Prosecutor General along with the learned counsel for the complainant, contended that the prosecution had proved its case beyond the shadow of doubt by producing independent witnesses. The learned Additional Prosecutor General along with the learned counsel for the complainant, further argued that the deceased died as a result of injuries suffered at the hands of the appellant. The learned Additional Prosecutor General along with the learned counsel for the complainant, further contended that the medical evidence also corroborated the statements of the eye-witnesses. The learned Additional Prosecutor General along with the learned counsel for the complainant, further contended that the recovery of the pistol (P-6) from the appellant namely Muhammad Arif son of Ghulam Haider also corroborated the ocular account. The learned Additional Prosecutor General along with the learned counsel for the complainant, further stated 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, the learned Additional Prosecutor General along with the learned counsel for the complainant prayed for the rejection of the appeal as lodged by the appellant namely Muhammad Arif son of Ghulam Haider. The learned counsel for the complainant also argued that the Petition for Special Leave to Appeal No.130 of 2019, assailing the acquittal of Ismail son of Ghulam Haider and Muhammad Jalil son of Ghulam Haider by the learned trial court from the charges also merited acceptance. 12. We have heard the learned counsel for the appellant, the learned counsel for the complainant, the learned Additional Prosecutor General and with their assistance carefully perused the record and evidence recorded during the trial. 13.A perusal of the prosecution evidence reveals that the whole prosecution case as against the appellant namely Muhammad Arif son of Ghulam Haider is based on the statements of the prosecution witnesses namely Ghulam Yaseen (PW-5) and Khalil Ahmed (PW-6). The relationship of the prosecution witnesses namely Ghulam Yaseen (PW-5) and Khalil Ahmed (PW-6) with the deceased is on record. Talib Hussain (deceased) was the brother of the prosecution witness namely Ghulam Yaseen (PW-5) and the prosecution witness namely Khalil Ahmad (PW-6). The prosecution witnesses namely Ghulam Yaseen (PW-5) and Khalil Ahmed (PW-6) were also admittedly not the residents of the place of occurrence. According to the prosecution witnesses namely Ghulam Yaseen (PW-5) and Khalil Ahmed (PW-6) both of them had their residence at a distance of about as much as 3-4 squares from the place of occurrence. The prosecution witness namely Ghulam Yaseen (PW-5), during cross-examination stated as under:- "Talib Hussain deceased was my real brother. PW Khalil is my real brother. ...................... The distance between place of occurrence is about 3 square of land from my house" (emphasis supplied) Similarly, the prosecution witness namely Khalil Ahmed (PW-6) during cross-examination, stated as under:- "Talib Hussain deceased was my real brother. PW Ghulam Yasin is my real brother. ............ The distance between place of occurrence is about 3 square of land from my house."
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In this manner, the prosecution witnesses namely Ghulam Yaseen (PW-5) and Khalil Ahmed (PW- 6) can be validly termed as "chance witnesses" and therefore were under a bounden duty to provide a convincing reason for their presence at the place of occurrence, at the time of occurrence and were also under a duty to prove, their presence by producing some physical proof of the same. We have noted with grave concern that the prosecution witnesses namely Ghulam Yaseen (PW-5) and Khalil Ahmed (PW-6) failed miserably to provide any consistent evidence as to the reason for their arrival at the place of occurrence and their presence at the place of occurrence when the same was taking place. The prosecution witness namely Ghulam Yaseen (PW-5) had claimed that they were present at the place of occurrence, prior to the arrival of the accused at the said place as they were engaged in grazing their sheep and goats, near Fazil Wah Canal, whereas the prosecution witness namely Khalil Ahmed (PW-6) stated that they were present at the place of occurrence, prior to the arrival of the accused at the said place as they were engaged in grazing their cattle. The prosecution witness namely Ghulam Yaseen (PW-5), in his statement before the learned trial court got recorded as under:- "Talib Hussain deceased was my elder brother. On 15.07.2016, I along with Talib Hussain and Khalil Ahmad were grazing our sheep and goats near canal known as Fazil Waha" (emphasis supplied) Contradicting the prosecution witness namely Ghulam Yaseen (PW-5) regarding the purpose of their presence at the place of occurrence, prior to the occurrence, the prosecution witness namely Khalil Ahmad (PW-6), in his statement before the learned trial court got recorded as under: "On 15.07.2016 we were grazing our cattle near the canal under the sheesham tree when accused persons namely Muhammad Arif, Muhammad Jalil, Ismail, and Ghulam Haider suddenly came there " (emphasis supplied) Obviously, there is a huge difference between cattle, sheep and goats. The prosecution witnesses namely Ghulam Yaseen (PW-5) and Khalil Ahmed (PW-6) could not even make a consistent statement as to the reason for their presence at the place of occurrence, denuding the fact that both of them were not present at the place of occurrence and therefore such a huge contradiction cropped up in their statements regarding their reason for the presence at the place of the occurrence. Moreover, Abid Aziz ASI (CW-1), the Investigating Officer of the case, at the time of his visit to the place of occurrence, did not take into possession any physical proof of the claim of the prosecution witnesses namely Ghulam- Yaseen (PW-5) and Khalil Ahmed (PW-6) that they were present at the place of occurrence grazing sheep, cattle or goats. Abid Aziz AS! (CW-1), the Investigating Officer of the case during cross-examination admitted that at the time of his visit to the place of occurrence neither he saw any sheep nor goats nor any cattle present there and furthermore he did not even observe the presence of any hoof marks of such animals present at or around the place of occurrence. Abid Aziz ASI (CW-1), the Investigating Officer of the case further admitted during cross-examination that the prosecution witnesses namely Ghulam Yaseen (PW- 5) and Khalil Ahmed (PW-6) also did not point out the presence of such cattle, sheep or goats to him at the time of his visit to the place of occurrence. Abid Aziz ASI (CW-1), the Investigating Officer of the case during cross-examination, admitted as under:- "I reached at the place of occurrence after about half an hour of the recording of statement of complainant Ex.P-B. When I reached at the place of occurrence there were no goats or sheep. Complainant or PWs did not point out me about the presence of herd of goats or sheep. It was Kacha place at the place of occurrence. I have not mentioned the signs of scuffling or foot prints of the herd because the same were not available" (emphasis supplied) Abid Aziz, ASI (CW-1), the Investigating Officer of the case, admitted during cross-examination that the prosecution witnesses namely Ghulam Yaseen (PW-5) and Khalil Ahmed (PW-6) never produced before him the animals for the care of which prosecution witnesses namely Ghulam Yaseen (PW-5) and Khalil Ahmed (PW-6) were available at the place of occurrence. The non-
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production and the non-availability of the animals for the care of which the prosecution witnesses namely Ghulam Yaseen (PW-5) and Khalil Ahmed (PW-6) had arrived at the place of occurrence and the failure of the prosecution witnesses namely Ghulam Yaseen (PW-5) and Khalil Ahmed (PW-6) to produce the same before the Investigating Officer of the case, leads to only one conclusion and that being that no such animals were being taken care of by the prosecution witnesses namely Ghulam Yaseen (PW-5) and Khalil Ahmed (PW-6) while they grazed. Had such animals been present at the place of occurrence, then the same must have been available at the place of occurrence, at the time of arrival of Abid Aziz ASI (CW-1), the Investigating Officer of the case and the same would necessarily have been taken into possession by Abid Aziz ASI (CW-1), the Investigating Officer of the case or at least their presence marked in the inspection note as well as in the rough site plan of the place of occurrence (Exh. PM) but they were not. Furthermore, Abid Aziz ASI (CW-1), the Investigating Officer of the case would have prepared a memo marking the presence of such animals at the place of occurrence had they being there but he did not and it proves that a false claim was made by the prosecution witnesses namely Ghulam Yaseen (PW-5) and Khalil Ahmed (PW-6) that the prosecution witnesses namely Ghulam Yaseen (PW-5) and Khalil Ahmed (PW-6) were present at the place of occurrence while taking care of animals owned by them. In this manner, the prosecution witnesses namely Ghulam Yaseen (PW-5) and Khalil Ahmed (PW-6) failed miserably to prove that they had indeed arrived at the place of occurrence, before the occurrence. Reliance in this regard is placed on the case of "Muhammad Ali v. The State" (2015 SCMR 137). The proven failure of the prosecution witnesses namely Ghulam Yaseen (PW-5) and Khalil Ahmed (PW-6) to provide a reason for their presence at the place of occurrence, on the day of the incident, has repercussions, proving that there was no reason actually for the prosecution witnesses namely Ghulam Yaseen (PW-5) and Khalil Ahmed (PW-6) to be visiting the place of occurrence. The very inception of the prosecution case is thus put in doubt due to the said abject failure of the prosecution witnesses namely Ghulam Yaseen (PW-5) and Khalil Ahmed (PW- 6). The failure of the prosecution to prove their claims regarding the reason for their presence at the place of occurrence has vitiated our trust in Ghulam Yaseen (PW-5) and Khalil Ahmed (PW-6) as being truthful witnesses. 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 place of occurrence, but on the day of occurrence stated to be present near the spot as they were 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, Ghulam Farid and Manzoor Ahmed in the said case who were all residents of some other houses and they were not the inmates of the house wherein the occurrence had taken place and therefore the said eye-witnesses were, thus, declared chance witnesses and not worthy of reliance. Reliance is also placed on the case of "Nasrullah alias Nasro v. The State" (2017 SCMR 724). 14. We have also noted another flaw in the statements of the prosecution witnesses namely Ghulam Yaseen (PW-5) and Khalil Ahmed (PW-6) which proves that no reliance can be placed upon their statements. Both the prosecution witnesses namely Ghulam Yaseen (PW-5) and Khalil Ahmed (PW-6) claimed that during the occurrence they were beaten by the accused, as many as four in total, however, also admitted that neither they were examined by any Medical Officer nor any Medico Legal Examination Certificate .existed with regard to them nor Abid Aziz ASI (CW-1), the Investigating Officer of the case even prepared any injury statement mentioning the presence of injuries on the bodies of prosecution witnesses namely Ghulam Yaseen (PW-5) and Khalil Ahmed (PW-6) as allegedly inflicted upon them by the accused. The prosecution witness namely Ghulam Yaseen (PW-5) in his statement recorded by the learned trial, court stated as under:-
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"Then Ghluam Haider and Ismail accused started giving us fits (sic) blows while holding us ........... The accused were having Sotas in their hand when they were causing fist blows to us. Again said, at the time when they gave fist blows to us, the Sotas had fallen on the ground." The prosecution witness namely Khalil Ahmad (PW-6) in his statement recorded by the learned trial court, stated as under:- "Ghulam Haider and Ismail accused kept on giving us fits blows .......... I had recorded before the I.O. that Ghulam Haider and Ismail accused persons gave us fist blows. (Confronted with Ex.D.A. wherein it is not so recorded)." We have also noted that the prosecution witnesses namely Ghulam Yaseen (PW-5) and Khalil Ahmed (PW-6) also failed to explain the presence of the motorcycle (P-7), which was found present at the place of occurrence by Abid Aziz ASI (CW-1), the Investigating Officer of the case and was also taken into possession by him. The prosecution witnesses namely Ghulam Yaseen (PW-5) and Khalil Ahmed (PW-6) in their statements did not even state that the accused had arrived on the motorcycle (P-7) at the place of occurrence or that they had fled away from the place of occurrence leaving behind the said motorcycle. Even Abid Aziz ASI (CW-1), the Investigating Officer of the case admitted during cross-examination that the prosecution witnesses namely Ghulam Yaseen (PW-5) and Khalil Ahmed (PW-6) could not explain the presence of the motorcycle (P-7) at the place of occurrence and the damaged condition of the said motorcycle (P-7). Abid Aziz ASI (CW-1), the Investigating Officer of the case, during cross-examination, admitted as under:- "I took into, possession the…
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