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Petitioner: MUHAMMAD NADEEM alias NADEEM HUSSAIN VS Respondent: The STATE and another
Court Name: Lahore High Court Judge(s): Sayyed Mazahar Ali Akbar Naqvi, Ch. Abdul Aziz Title: MUHAMMAD NADEEM alias NADEEM HUSSAIN vs The STATE and another Case No.:Criminal Appeal No.332, Criminal P.S.L.A. No.85 and Murder Reference
JUDGMENT
Reported As: 2017 YLR 2291 Result: Appeal allowed. Judgment JUDGMENT CH. ABDUL AZIZ, J.---This single judgment shall dispose of Criminal Appeal No. 332 of 2012 filed by Muhammad Nadeem alias Nadeem Hussain (against his conviction), Criminal Petition for Special Leave to Appeal No.85 of 2012 filed by Muhammad Ameer (against acquittal of Naveed Ahmad and 3 others) and Murder Reference No. 100 of 2012 sent by the learned Additional Sessions Judge, Depalpur for the confirmation or otherwise of the death sentence awarded to appellant, Muhammad Nadeem. The appellant was convicted and sentenced by the trial court vide judgment dated 13.02.2012 as under:-- Convicted under section 302(b), P.P.C. and was awarded death sentence, he was also ordered to pay an amount of Rs.200,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased, in the event of default in the payment of the amount the appellant was ordered to suffer imprisonment for a period of 6-months S.I. and in further default thereof the amount of compensation was ordered to be recovered through arrears of land revenue. 2.The instant Murder Reference and the connected appeal along with Criminal Petition for Special Leave to Appeal are the result of criminal complaint titled `Muhammad Ameer v. Muhammad Nadeem and 4 others' arising out of case FIR No.641/2005 dated 03.12.2005 registered under sections 302, 148, 149, P.P.C. (amended under section 319, P.P.C.) at Police Station Depalpur, District Okara. 3.The FIR was registered on the report of Muhammad Ameer, father of deceased (PW.1) and the facts as can be culled from the complaint (Ex.DA) and FIR (Ex.PD/1) are as under:-- "I am a farmer by profession. On 02.12.2005 at about 5:00 p.m., my son Riaz Raza along with Mustafa
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son of Muhammad Sharif, Muhammad Akram son of Raham came to attend the marriage of Aamir Khan son of Mazhar Khan and after attending the same they were sitting with Rashid Khan son of Mazhar Khan at Khalil Abad Colony, Depalpur. After some time, the guests from Lahore namely Malik Naveed, Wasif, Khalil Ahmed and Saqib along with Nadeem son of Haji Muhammad Hussain came there while boarding on a Carry Van and after taking my son Riaz Raza went at the dera of Nadeem Watoo. At 6 O'clock (in the morning), Nadeem Watoo informed Rashid Khan through telephone that Riaz Raza had been met a fire shot who was shifted to Jinnah Hospital, Lahore for treatment. This information was further conveyed to us by Rashid, upon which, we reached Jinnah Hospital, Lahore. Upon query, the doctor told us that in the night some unknown persons had brought dead body while saying that their man was injured and upon checking, it was found that the injured had died. We imparted this information to Police Station Saddar Depalpur at 12:30 p.m. today and while taking the police went to Jinnah Hospital, Lahore and after receiving the dead body came back. My son Riaz Raza was murdered by Nadeem Watoo, Malik Naveed, Wasif, Khalil Ahmed and Saqib in consultation with each other". 3. In pursuance of the information furnished by the complainant qua the murder of his son, Bashir Ahmad SI (CW.1) proceeded to Jinnah Hospital, Lahore for bringing the dead body of Riaz Raza (deceased) and after bringing the same, he recorded the statement of complainant (Ex.DA) and sent the same to the police station for the registration of FIR. Subsequently, he proceeded to crime scene and prepared the inquest report (Ex.CW.1/A). The dead body of the deceased was entrusted to Abdul Sattar 587/C for postmortem examination. During the spot inspection, he collected blood stained earth vide recovery memo (Ex.CW.1/C). He on 04.12.2005 recorded the supplementary statement of complainant Muhammad Ameer (Ex.CW.1/E) as well as the statements of Muhammad Akram and Ghulam Mustafa Ex.DB and Ex.DC respectively on 04.12.2005. Manzoor Ahmad SI (CW.8) on 07.12.2008 arrested appellant Nadeem. During the course of investigation, he concluded that it was not a case of intentional murder rather it was an accidental death, resultantly he recommended for the submission of challan under section 319, P.P.C. but upon the objections of the prosecution branch, the report under section 173, Cr.P.C. was submitted under sections 302, 319, 148, 149 P. P.0 . Feeling aggrieved by the conduct of the local police, complainant Muhammad Ameer (PW.1) preferred to file a private complaint on which the trial commenced. The contents of the complaint as narrated by the complainant in his private complaint (Ex.PA) are as under:-- "On 02.12.2005 at 5:00 p.m., Mustafa son of Muhammad Sharif, my son Riaz Raza and Muhammad Akram son of Rahm were present in the Dera of Mazhar Khan, where accused persons came on the Dala and took my son Riaz Raza with them to the Dera of Muhammad Nadeem accused. I became worried as there was dispute of money between Muhammad Nadeem accused and my son Riaz Raza, whereupon I along with Mustafa and Muhammad Akram reached the Dera of Muhammad Nadeem at 12:10 p.m. and saw that Muhammad Nadeem armed with .12 bore carbine was abusing my son Riaz Raza, whereas the remaining accused Naveed Ahmad, Khalil Ahmad, Wasif Shah and Saqib were armed with pistols-30 bore and were raising lalkaras. Within our view Nadeem accused made fire shot with his carbine which hit on the abdomen of my son on left side near the flank and he fell down. All the accused persons fled away from the spot with their respective weapons of offence. I took my son Riaz Raza in injured condition to the hospital but he was referred to Jinnah Hospital, Lahore where he succumbed to the injuries. My son Riaz Raza was murdered by Nadeem Watoo etc in consultation with each other on the demand of Rs.50,000/-". 4. The appellant and his co-accused were charge sheeted in private complaint on 19.08.2010 under sections 302, 148 and 149, P.P.C., to which, they pleaded not guilty and claimed trial. During the trial, in order to prove its case against the appellant and his co-accused, the prosecution produced as many as four prosecution witnesses i.e. Muhammad Ameer complainant (PW.1), Muhammad
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Akram (PW.2) and Ghulam Mustafa (PW.3), eyewitnesses of the occurrence and Dr. Abdul Aziz (PW.4) who conducted the postmortem examination on the dead body of the deceased, whereas trial court examined eleven persons as CWs which includes Investigating Officers i.e. Bashir Ahmed SI (CW.1), Mahmood Ahmad Inspector (CW.4), Manzoor Ahmad SI (CW.8) and Draftsman Malik Muhammad Saleem Ullah (CW.2). 5. Muhammad Ameer, complainant, (PW.1) when appeared before the trial court, he deposed as under (reproduced in verbatim):-- "Riaz Raza deceased was my son. About four years and nine months ago at about five P.M my son Riaz Raza along with Mustafa and Muhammad Akram PW was present in the Dera of Mazhar Khan situated in Khalil Abad Colony, Depalpur. At about. 8 P.M. Mustafa and Akram PWs told me at my house that my son Riaz Raza along with Muhammad Nadeem, Naveed Ahmad, Khalil Ahmad, Wasif Ali Shah and Saqib Ashraf accused present in the Court had gone to the Dera of Nadeem accused. Again said Saqab accused is not present in the Court and is since proclaimed offender. I became anxious as there was dispute of money between Muhammad Nadeem accused and my son Riaz Raza because Nadeem accused had borrowed Rs.50,000/- from Riaz Raza and on the demand of that money there was dispute between Muhammad Nadeem and Riaz Raza. I had been waiting for the return of my son Riaz Raza, after 2/3 hours I along with Mustafa and Akram PWs went at the Dera of Nadeem accused. There I saw that my son was present there. Muhammad Nadeem accused was armed with carbine and the other accused Naveed, Khalil, Wasif Shah and Saqab (since P.O.) armed with pistols were present there. Within our view Nadeem accused made fire with his carbine which hit on the abdomen of my son on left side near the flank and he fell down. All the accused then fled away with their respective weapons. I took my son Riaz Raza in injured condition along with the PWs to the hospital, where my son was medically examined and then was referred to Lahore, and when we reached in the hospital he succumbed to the injuries. Motive for the occurrence was demand of money of Rs.50,000/- as mentioned above. I orally made statement to the police in the hospital and stated the above said story to the police but the police did not record my statement correctly and obtained my thumb impressions on blank paper and thereafter recorded incorrect version. During the investigation I and my PWs had been stating as today I have stated about the occurrence. The accused remained absconders for four years. The police became collusive with the accused present in Court and after accepting illegal gratification by spoiling my case challaned under section 319, P.P.C. and not challaned under section 302, P.P.C. Hence, I filed private complaint which is Ex.PA, which was read over to me and in token of its correctness I thumb marked the same". 6. The medical evidence was furnished by Dr. Abdul Aziz (PW.4) who on 03.12.2005 at about 2:20 a.m., medically examined Riaz Bhutta (during his life time) and noted the following injuries on his person:-- 1).Lacerated wound 4 c.m. x 3 c.m. x deep going x margins inverted at left side of upper abdomen (Entry wound). 2).Lacerated wound 1 c.m. x 1/2 c.m. x deep going x margin inverted at upper part and outer side of right side close to growing (Exit Wound). The doctor kept the nature of injuries under observation. According to him, the probable duration of injuries was within one hour and the kind of weapon used was firearm. On 03.12.2005 at 11:30 p.m., he conducted the postmortem examination on the dead body of Riaz Raza and noted the following injuries:-- 1). Lacerated wound 4 c.m. x 3 c.m. x deep going x margins inverted at left side of upper abdomen (Entry wound). 2). Lacerated wound 1 c.m. x 1/2 c.m. x deep going x margin inverted at upper part and outer side of
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right thigh close to growing. According to the opinion of the doctor, the injuries were caused with firearm and injury No.1 was described as entry wound whereas No.2 was declared as an exit wound. During the autopsy some metallic pallets were recovered from the body of the deceased. The injuries were observed as ante mortem which led to shock and death and was described as sufficient to cause death in the ordinary course of nature. The probable duration between death and postmortem was stated to be about 17 to 18 hours. 7. The statement of the appellant was recorded under section 342, Cr.P.C., wherein, he denied the allegations levelled against him. In response to question No.1, wherein the appellant was confronted with the nature of ocular account furnished by the three eye-witnesses, his reply was as t "It is incorrect. The complainant and PWs namely Mustafa and Muhammad Akram were not present at the scene of occurrence. Many respectables from the area appeared on behalf of me during investigation of this case. They also tendered their affidavits about my innocence having no connection with the alleged offence. I along with Malik Naveed, took Riaz Raza deceased in injured condition in the THQ Hospital Depalpur. The deceased Riaz Raza was referred to Jinnah Hospital and then I and Naveed accused took him in the ambulance to Jinnah Hospital Lahore, where my name was also inserted in the admission register of that hospital, who brought the deceased in the hospital at Lahore. I.O. took in possession the attested copy of both those documents after making verification. The documents were filed/attached with the report under section 173, Cr.P.C. as evidence in this case. The driver of ambulance Haji Irshad also appeared during the investigation and submitted his affidavit about the above mentioned facts. Rashid Khan, the brother of bridegroom also submitted his affidavit during the investigation stating therein thatthe complainant, Muhammad Akram and Mustafa PWs were neither participant nor invited in the marriage of his brother. The deceased was our fast friend and they were invited for haunting by Riaz Raza deceased and the deceased requested me to afford them stay at night in my Dera at Mauza Lalupur, so that they might start their journey for haunting from my Dera, which was suitable place for their stay according to the deceased. At the time of occurrence, I was in my house preparing food/super and in the Dera/the place of occurrence, the deceased was in the company of other accused, except me. During the aerial firing by the remaining accused, and checking of the weapons, which was brought by them from Lahore for haunting, a shot accidently hit to the deceased which was warranted in his death. I have tried my level best to save his life by taking him to the hospitals, but un-luckily he could not survive. It is an accidental and not an Intentional murder. The complainant was informed about this occurrence by Rashid Khan on my telephone when the deceased was near the Jinnah Hospital for treatment. The complainant after two days i.e. 04.12.2005 changed his version and nominated me as an accused attributing the fatal shot to the deceased and on the same day, the statements of PWs Muhammad Akram and Mustafa were recorded by the 10, after due deliberation in order to implicate me falsely for the purpose of black-mailing. There was no enmity between me and the deceased; rather it was found during investigation that I and other co-accused were the friends of the deceased. Motive was also not established during the investigation. As far as the presence of PWs is concerned, it was too not established at the scene of occurrence, during investigation. In fact, it is a case of accidental death." Similarly in respondent to question "why this case against you and why the PWs deposed against you", the appellant replied as under:-- "The PWs are related inter se and they have falsely deposed against me for black-mailing. Their statements were recorded by the police after two days of the occurrence but changing their first
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version in the statement of the complainant on the basis of which, the FIR, which clearly shows that the complainant and the PWs have changed their original version due to black-mailing and especially attributed the fatal shot to me, keeping in view my financial position as a Zimindar in the area". 8. The appellant did not opt to appear as a witness under section 340(2), Cr.P.C. However, he produced six persons in his defence. Altaf Hussain Record Keeper (DW.1) produced the original record emergency (patients) outdoor of THQ Hospital, Depalpur for the year 2005. Dr. Shahid Farooq (DW.2) stated before the Court that he attested the copies Ex.DD, according to the original record which was produced before the trial court. Muhammad Jameel Record Keeper (DW.3) produced the original reception register for the year 2005 for the period from 02.12.2005 to 14.12.2005. Dr. Muhammad Saeed Addl. M.S. Jinnah Hospital, Lahore (DW. 4) deposed before the trial court that the certified copy of the entry in the name of Riaz patient (Ex.DE) has been attested by him and according to the record Riaz was brought to hospital in an injured condition by Nadeem Watoo (appellant) at 6:01 a.m. on 03.12.2005. Rashid Khan (DW.5) deposed before the trial court to the effect that he received telephonic call from Nadeem appellant who informed that Riaz (deceased) had sustained a fire shot accidently and he had been referred to Jinnah Hospital, Lahore and Nadeem appellant also asked the witness to convey the information to the legal heirs of Riaz (deceased) and he accordingly informed the father and brother of the deceased about the incident. He also stated this fact before the Investigating Officer and also submitted affidavit in this regard. Haji Irshaad Ahmad (DW.6) was the driver of the ambulance and he narrated before the trial court the efforts made by Nadeem appellant and Naveed (acquitted co-accused) for saving the life of the deceased. 8A (sic). After the conclusion of trial, the learned trial court while acquitting co-accused namely Naveed Ahmad, Wasif, Saqib and Khalil ur Rehman convicted and sentenced the appellant as afore-stated, hence, the Appeal and Murder Reference. 9. Learned counsel for the appellant contended that:-- i.That there is an inordinate delay of about seventeen hours in the registration of FIR, which remained unexplained. ii.That the appellant was convicted in a private complaint which was instituted after about four years of the occurrence. iii.That the ocular account was furnished by the PWs who were not only related with the deceased but were also found to be chance witnesses. iv. That the appellant took a specific plea of death by accident and led confidence inspiring defense evidence but the same was discarded, without there being any legally justifiable reason. v.That the medical evidence runs contrary to the ocular account furnished by the witnesses. 10. On the other hand, the learned Deputy Prosecutor General assisted by the learned counsel for the, complainant vehemently controverted the arguments advanced by the learned counsel for the appellant and submitted that; (i)The appellant is specifically nominated in FIR and that too in reference to his role in the commission of crime. (ii)The guilt of the appellant stands proved and that too on the basis of natural and confidence inspiring evidence. (iii)The PWs have no enmity with the appellant, hence, there is no reason to discard their evidence. (iv)The delay, if any, in the registration of the FIR is fully explained by the prosecution, hence no adverse inference can be drawn. (v)The medical evidence is in consonance with the ocular account and is rightly relied upon by the learned trial court. 11.Arguments heard and record perused with the able assistance of the learned counsel for the
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respective parties as well as the learned law officer. 12.The prosecution case, so to speak primarily hinges upon the evidence of Muhammad Ameer (PW.1), Muhammad Akram (PW.2) and Ghulam Mustafa (PW.3) who furnished eye-witness account of the occurrence. The abscondance of the appellant and the motive was taken as a corroboratory piece of evidence. The medical evidence was furnished by Dr. Abdul Aziz (PW.4). Contrary to it, the appellant took a specific plea of death by accident, the detail of which since already stands mentioned above, hence no useful purpose will be served to recapitulate it. However, it is important to mention here that in support of his defence plea, the appellant produced as many as six defence witnesses along with some documentary evidence. 13.The unfortunate occurrence which led to the registration of instant FIR took place on the intervening night of 02/03.12.2005. For this occurrence, the law was set in motion through FIR No .641/2005 (Exh. DA/ 1) which was registered on 03.12.2005 at about 8:10 p.m. on the statement of Muhammad Ameer (PW.1). Admittedly there is a delay of about 15/16 hours in the registration of FIR. The perusal of Exh.DA/1 shows that the occurrence was not witnessed by any of the three eye- witnesses produced during the trial. However, through a supplementary statement (Exh.CW.1/E) Muhammad Ameer (PW.1) took a somersault by claiming that he along with Muhammad Akram (PW.2) and Ghulam Mustafa (PW.3) witnessed the occurrence. It has been observed that during examination-inchief, initially he disowned the complaint (Exh. DA) by saying that the police obtained his thumb impressions on a blank paper and thereafter recorded his incorrect version. This stance of Muhammad Ameer (PW.1) stands belied from the record. In his supplementary statement (Exh.CW.1/E), it is specifically mentioned that at the time of registration of FIR, since he was mentally up-set hence, he could not narrate the actual facts. Nowhere in the supplementary statement, he stated that his thumb impression was obtained on the blank paper. Moreover, during the course of his cross-examination, he himself negated and contradicted his above-mentioned stance by admitting the contents of complaint (Exh.DA). The relevant extract of his testimony is being reproduced below:-- "I submitted an application Ex.DA for the registration of the case at 9/10 P.M. It is correct that Ex.DA bears my thumb impression and it is the same application which I gave to the police". He was also confronted with the contents of Exh.DA, in reference to the improvements which he made during the course of his examination-in-chief. Surprisingly, he raised no objection regarding the contents of Exh.DA even at that time. In fact, at no point of time, during his cross-examination, he reiterated his claim that he affixed his thumb impression on a blank paper. In this view of the matter, we are of the view that the FIR (Exh.DA/1) was registered on the basis of a complaint (Exh.DA) prepared on the statement of Muhammad Ameer (PW.1). In this backdrop, this is an admitted fact that the matter was reported to the police with a substantial delay of about 17-hours, for which no plausible explanation was brought on record. A Whenever there is a delay in reporting the matter to the police, it casts a big doubt about the veracity of the story incorporated in the crime report and for this reason any .evidence produced on the basis thereof is to be examined with great care and caution. On the question of delay in the registration of FIR, reference can also be made to the cases of Muhammad Sadiq v. The State (2017 SCM R 144) and Wajahat Ahmed and others v. The State and others (2016 SCM R 2073). 14. The ocular account in the instant case was furnished by three witnesses mentioned above. The crime scene is situated in village Lalupur, whereas Muhammad Ameer (PW.1) is resident of Chah Bhutianwala, Dakhli, 38-D, Depalpur. The inter se distance between the two places is about 12- kilometers. Similarly, Muhammad Akram (PW.2) and Ghulam Mustafa (PW.3) are also residents of different places which are situated at a distance of four and two kilometers respectively from the house of the complainant. Village Lalupur is stated to be comprising upon population of 500/600 persons. More importantly, as per prosecution evidence, Riaz Raza (deceased) left his house at
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about 5:00 p.m. in order to attend marriage ceremony of Amir Khan resident of Chak No.38/D and thereafter at about 5:30 p.m. left for Lalupur in the company of the appellant and other accused. According to Muhammad Ameer (PW.1), he left his house at 11:30 p.m. in the company of the PWs and arrived at Lalupur Village at about 12 of the night and that too at the thick of the occurrence and at the peak of the passions. This is not understandable that the appellant who is portrayed as a rich landlord of the vicinity, his house/Dera was so unguarded and unprotected that the PWs successfully made ingress and that too at the odd hours of the night when the fatal shot was about to be fired. Such narration of facts does not appeal to logic and average standard of prudence. The- three PWs, from the narration of facts, can reasonably be termed as chance witnesses and their testimony as unnatural. According to the statements of the three eye-witnesses, the appellant fired at the deceased with a carbine. The distance between the two points as per the site plan (Ex.CW.1/F) is three feet only. The perusal of the medical report shows that there is no mark of blackening, burning or tattooing etc. According to the book namely 'A Text Book of Forensic Medicine and Toxicology' written by Dr. S. Siddiq Husain, if a shot is fired from a .12 bore gun from a distance of one yard, it is likely to cause blackening and tattooing. Admittedly, the distance is marginal in nature and it would not be appropriate to give a conclusive finding on the issue but at least such aspect of the matter pushes this Court towards a more cautious approach. 15. In every case of murder, the motive has its own significance. It provides corroboration to the ocular account furnished by the witnesses. In the instant case, at the time of the registration of FIR, no motive was attributed to the appellant or to his co-accused. However, the complainant at the time of making of his supplementary statement (Exh.CW.1/E) set up a specific motive which was described as a financial dispute between the deceased and the appellant without mentioning its nature and detail. Likewise, the perusal of private complaint (Exh.PA) also shows that no detail of this financial transaction is mentioned there. However, the detail of this dispute was brought on record by Muhammad Ameer when he appeared as PW.1.…
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