Full Judgment Text & Judicial Ruling

2018 P Cr. L J 1574 [Lahore] Before Qazi Muhammad Amin Ahmed and Ch. Abdul Aziz, JJ AKBAR and others---Appellant Versus The STATE---Respondent Criminal Appeal No. 50-J and Murder Reference No. 109 of 2013, decided on 7th December, 2017. (a) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 109, 148 & 149---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, rioting armed with deadly weapon, unlawful assembly---Withholding of best evidence---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused party assaulted on complainant party with firearms, due to which, three persons died and one received injuries---Motive behind the occurrence was previous incidents in which brother of accused received injuries, while brother-in-law of co-accused was murdered and cases were registered against the complainant party---In order to prove its case, the prosecution had produced eight witnesses including complainant and injured---Record showed that occurrence took place at about 1.00 p.m. and application for registration of FIR was presented by complainant before the Investigating Officer at 3.40 p.m., who was present in the area of concerned police station in connection with patrolling duty---Investigating Officer forwarded the application to police station through Police Official for the purposes of registration of FIR---Said Police Official was not produced by the prosecution before the Trial Court---Non-appearance of said Police Official as a witness had caused a dent in the case of prosecution---Record showed that complainant was an illiterate villager and the application was drafted by the son of injured, who was not produced as a witness---Record transpired that six assailants participated in the incident which resulted into death of three persons and firearm injuries to one person---Two assailants filed appeal, two were acquitted by the Trial Court, while the remaining two were initially declared as proclaimed offenders but subsequently, became victim of extrajudicial killing---In addition to said six assailants, three other persons were also implicated in the case on the charge of abetment, but were acquitted by the Trial Court---In order to bring home the guilt of the accused nominated in the crime report, three witnesses including complainant and injured appeared in the witness box---Record showed that two acquitted accused were alleged to have actively participated in the commission of crime and the nature of accusation against them was almost similar as ascribed to the present accused and that too had arisen from the testimony of same set of witnesses---Statements of the three eyewitnesses were not considered worth reliance and both the accused were acquitted from the case---Strong corroboration, in circumstances, was required to uphold the conviction of the accused persons, which was missing---Deposition of three eyewitnesses showed that the assailants and the complainant party were in worst of terms with each other on account of enmity arising out of blood-feud and multiple cases of criminal as well as civil nature---Present accused persons were not accused or complainant in any of such cases---Crime scene was situated at a place away from the houses of both the parties and none of the witnesses was the resident of the place of occurrence and their houses were situated 4/5 squares away therefrom---Neither the witnesses nor the assailants had any agricultural land around the place of incident---Witnesses while offering explanation for their presence at the crime scene had stated that deceased was married, and due to some family dispute, the lady left the house of deceased and went to the house of her parents---Witnesses allegedly were present in the house of father of that lady in pursuance of effort for compromise between the couple and acquired knowledge about the presence of assailants on the path leading to their house---None of the witnesses disclosed the source of their information regarding presence of the accused and co-accused at the place of incident---Neither the wife of deceased nor the father of wife of deceased appeared in the witness box in order to prove the presence of witnesses in their house for making efforts for compromise of the couple---By not producing the wife and father-in-law of the deceased, the best evidence to provide credence to the presence of witnesses at the crime scene was withheld, thus adverse inference could be drawn against the prosecution under Art. 129(g), Qanun-e-Shahadat---Eyewitnesses had narrated each and every shot fired by the assailants and even the locale of injuries caused therefrom---Prosecution had brought on record that the witnesses were under a massive assault, which did not appeal to logic that instead of running for their lives, they were focusing on the roles being performed by respective accused---Such was in conflict with natural human response---Complaint showed that Investigating Officer along with complainant proceeded to crime scene subsequent to 3.40 p.m. and even 30-minutes thereafter shifted the injured to hospital---Medical Officer had stated that deceased was received in the hospital in injured condition at 3.35 p.m.---Such a position showed that much before the arrival of police and complainant, someone had shifted the deceased from the crime scene to the hospital---Deceased persons were wife and sons of the complainant and they received firearm injuries within his sight---Wife and one son of complainant succumbed to the injuries, however his one son and one witness were in injured condition till that time---As per normal and natural human reflexes, before doing anything else, the complainant should have made best of his efforts to shift the injured persons from the crime scene for medical treatment; however, instead of shifting them to the hospital, the complainant proceeded to inform the police after about fifteen minutes of the occurrence and left the victims behind at the crime scene and that too in precarious condition---Said feature of the case casted doubt about the presence of witnesses at the crime scene---Injured witness held the proclaimed offender and acquitted accused as responsible for having caused two firearm injuries on his right leg---Record revealed that his evidence was not considered favourable for awarding conviction to the acquitted accused---In the present case, when injured witness was disbelieved even to the extent of the accused who allegedly had caused him one of the firearm injuries, his testimony for upholding the conviction of the accused could only be accepted if strongly corroborated and supported from other circumstances---Injured witness was one of the accused in the murder case, which was the motive or immediate cause of the present occurrence---Injured witness was one of the prime targets, however, he received simple injuries and that too on non-vital part of his body---Survival of injured witness appeared to be contrary to the theory of the prosecution case---Record showed that post-mortem examination of deceased lady was conducted after about 10 hours and 50 minutes of the occurrence---Dead body of male deceased was examined by the Medical Officer after about 18-hours of the occurrence---Such unexplained delay in holding autopsy was always looked with doubts and suspicions, which would adversely reflect the case of prosecution, more importantly, when the ocular account was furnished by partisan witnesses who were also disbelieved to the extent of acquitted accused persons---Circumstances established that prosecution had failed to prove its case beyond any shadow of doubt, benefit of which would resolve in favour of accused---Appeal was allowed and accused were acquitted in circumstances by setting aside conviction and sentences recorded by the Trial Court. Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142; Muhammad Rafique and others v. State and others 2010 SCMR 385 and Muhammad Ilyas v. Muhammad Abid alias Billa 2017 SCMR 54 rel. (b) Criminal trial--- ----Witness---Statement of---Scope---Legal worth of the testimony of a witness depended upon his credibility which was indivisible in nature---If witness was found not worthy of any credence to the extent of one set of accused who actively participated in the crime, it appeared to be wholly unjust to place explicit reliance on his testimony for awarding conviction to a similarly placed set of accused. Mohamed Fiaz Bakhsh v. The Queen PLD 1959 Privy Council 24 and Ata Muhammad and another v. The State 1995 SCMR 599 rel. (c) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 109, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Motive, proof of---Motive behind the occurrence as alleged by the prosecution was previous criminal cases wherein brother-in-law of accused lost his life while brother of other accused received firearm injuries---Record showed that the parties were at daggers drawn with each other on account of manifold cases, however, the prosecution had claimed that the present occurrence was outcome of said cases---Injured witness of the present case along with his two brothers were sentenced to death---Assailants, in circumstances, should not have let injured witness alive---Acquittal of co-accused, who was brother in law of the deceased of that case, had left a big dent regarding the motive of the prosecution case---Projected motive, in circumstances, appeared to be too remote to fascinate the court to take it as a corroborative piece of evidence against the accused persons. (d) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 109, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Recovery of weapon of offence from accused---Reliance---Scope---Record showed that two 303 rifles were recovered on the disclosure and pointation of accused persons---Report of Forensic Science Laboratory showed that the rifles matched with the crime empties which were secured from the crime scene---Said articles were forwarded to the office of Forensic Science Laboratory together, hence were of no legal significance---Witness, who took the weapons and empties to Forensic Science Laboratory was never produced as witness---Even otherwise, the positive report of Forensic Science Laboratory was only a corroborative piece of evidence and on that score alone, conviction could not be awarded or upheld and more importantly, in cases when the ocular account was found not worthy of any credence. Riaz Ahmed v. State 2010 SCMR 846 rel. Sikandar Zulqarnain for Appellant. Azam Nazeer Tarar for the Complainant. Rana Sultan Ahmed, Additional Prosecutor-General for the State. Date of hearing: 7th December, 2017. JUDGMENT CH. ABDUL AZIZ, J.---This judgment shall dispose of Criminal Appeal No.50-J of 2013 (filed by appellants namely Akbar son of Sarwar and Faisal son of Abbas against their conviction) and Reference sent by trial court under section 374 of Criminal Procedure Code, 1898 which is numbered as Murder Reference No.109 of 2013, for confirmation or otherwise of sentence of death awarded to the afore-mentioned appellants. The appeal and the murder reference are originating from the judgment dated 26.01.2013 passed by learned Additional Sessions Judge, Chiniot, on a trial held in private complaint titled as "Muhammad Nawaz v. Akbar and 5 others" for the offence under sections 302, 324, 148, 149 and 109, P.P.C. with regard to an occurrence which took place within the territorial jurisdiction of Police Station Saddar Chiniot. The learned trial court vide the impugned judgment while acquitting co-accused namely Sardara, Allah Yar, Falak Sher and Allah Ditta proceeded to convict and sentence both the appellants in the following terms:- Under section 302(b) read with section 34, P.P.C. were awarded death sentence on three counts for committing qatl-i-amd of Lal Khan, Mst. Ferozan Bibi and Tahir Abbas. Both the appellants were also ordered to pay compensation of Rs.200,000/- to the legal heirs of each of the deceased under section 544-A, Cr.P.C. and in default whereof to further undergo SI for six months on each count. Under section 324 read with section 34, P.P.C. to undergo RI for seven years for attempt to commit qatl-i-amd of Ahmed Yar and to pay a fine of Rs.10,000/- each and in default whereof to further undergo six months' SI each. Under section 337-F(iii) read with section 34, P.P.C. to undergo RI for three years each and to pay daman of Rs.10,000/- each to Ahmed Yar (injured). The sentences of rigorous imprisonment were ordered to run concurrently and benefit of section 382-B, Cr.P.C. was also extended in favour of the appellants. 2. Succinctly stated the case of the prosecution as unfolded by Muhammad Nawaz (PW.1) in application for the registration of FIR (Exh.PA/Mark-A) is to the effect that he was residing in a Dera which he constructed over his agricultural land; that his son Lal Khan (deceased) was married with Mst. Irshad Bibi who on account of some domestic dispute got annoyed and proceeded to the house of her parents; that on 16.06.2010, as per plan, he along with his three sons, wife and two other relatives namely Tahir, Lal Khan, Muhammad Iqbal, Mst. Ferozan Bibi, Zulfiqar and Ahmed Yar came to the house of Allah Yar to cajole Mst. Irshad Bibi; that while present in the house of Allah Yar they received information that Allah Yar etc. while armed with firearms were sitting on their return passage to take revenge of previous enmity; that at 1:00 p.m., when they were going towards their house, after changing their route, and reached near the land of Inayat son of Nadir, they were intercepted by the appellants and their co-accused namely Maqsood, Falak Sher, Sardar and Mujahid; that the assailants challenged them by exhorting to the effect that they would teach them a lesson for injuring Yaqoob and committing the murder of Shahid Iqbal; that Maqsood fired a shot which hit Lal Khan on the front of his neck; that Akbar (appellant) fired at Mst. Ferozan Bibi hitting her on the chest and the fire made by Falak Sher hit on the right side of her belly, who after the receipt of these injuries fell down; that Faisal (appellant) fired at the left side of the forehead of Tahir Abbas who too fell on the ground; that Mujahid then fired at Tahir Abbas causing injuries on his nose, right side of the forehead and right cheek; that Sardara also fired at Tahir Abbas hitting him at his forehead, left and right side of the lip and left cheek; that when Ahmad Yar tried to flee away from the spot, Mujahid and Sardara fired at him causing injuries on his right leg; that the aforesaid accused persons also made firing at the complainant and others but they remained unhurt; that accused persons chased Muhammad Iqbal with the intent to commit his murder but he saved his life by stealthily decamping from the crime scene. The motive behind the occurrence was canvassed as previous incidents in which Muhammad Yaqoob, brother of Maqsood (accused) received firearm injury and Shahid Iqbal, brother in law (Behnoee) of Falak Sher (accused) was murdered and cases were registered against the complainant party. 3. On 16.06.2010 at about 3:30/3:45 p.m., when Muhammad Arshad SI (CW.3) was present in village Aasian in connection with patrolling duty, complainant Muhammad Nawaz (PW.1) along with one Nasir approached him and apprised about the occurrence through a written application (Exh.PA). The application, after proper endorsement was forwarded to Police Station through Ahmed Khan 404/C (not produced as a witness) for the registration of FIR. Subsequent thereto, Arshad SI (CW.3) along with Muhammad Nawaz proceeded to the crime scene and found the two deceased persons namely Lal Khan and Mst. Ferozan Bibi along with two injured namely Ahmad Yar and Tahir lying there. He forwarded Ahmed Yar and Tahir injured persons to DHQ Hospital under the escort of a police constable. He prepared the injury statement and inquest report of deceased Lal Khan (Exh.PR and Exh.PS) as well as of deceased Mst. Ferozan Bibi (Exh.PK and Exh.PL) and dispatched their dead bodies to DHQ Hospital through Zafar Iqbal 38/C for the purposes of postmortem examination. During spot inspection, he secured the blood stained earth from the places where Lal Khan and Mst. Ferozan Bibi (deceased persons) were done to death through memos (Exh.PC and Exh.PD). Likewise, he also took into possession blood stained earth pertaining to Tahir Abbas (then injured) vide memo (Exh.PE). He also secured seven crime empties (P.7/1-7) from the spot vide memo (Exh.CW.3/B). According to record, Tahir died in the hospital on 18.06.2010 whereupon Muhammad Arshad SI proceeded to hospital and after drafting his injury statement and inquest report (Exh.PG and Exh.PH), he got the autopsy conducted. On 25.06.2010 he arrested Akbar, Faisal (appellants), Falak Sher and Sardara. On 06.07.2010 Akbar and Faisal (appellants) made separate disclosures and led to the recoveries of rifles (P.9 and P.11) along with some live bullets which were taken into possession vide recovery memos (Exh.CW.3/G and Exh.CW.3/H) respectively. Being dissatisfied from the investigation of the case, the complainant opted to file the private complaint on 10.02.2011 on which the trial was held. 4. The prosecution, in order to prove its case against the appellants and their co-accused produced eight PWs which includes Muhammad Nawaz (PW.1), Ahmed Yar (PW.2) and Zulfiqar (PW.3) who are the eye-witnesses of the occurrence, Dr. Akhlaq Ahmad (PW.4), Dr. Shazia Abdul Sattar (PW.5) and Dr. Asif Nawaz (PW.7), who furnished the medical evidence. The learned trial court also examined four persons as court witnesses i.e. Liaqat (CW.1), Muhammad Nawaz (CW.2), Muhammad Arshad SI/Investigating Officer (CW.3) and Zafar Iqbal (CW.4). 5. Dr. Akhlaq Ahmad (PW.4) on 18.06.2010 at 11:55 p.m. conducted the post-mortem examination of the dead body of Tahir Abbas (deceased) and observed the following injuries:- 1. A lacerated wound of 1 cm x 1 cm on the left side of forehead with inverted margins. 2. Lacerated wound of 0.2 x 0.2 cm in the bridge of nose. Wound is skin deep. 3. Lacerated wound 0.2 x 0.2 cm on the left lid. Wound is skin deep. 4. Lacerated wound 0.5 x 0.5 cm on right cheek. Wound is skin deep. 5. Lacerated wound 0.4 x 0.4 cm on the right side of forehead. Wound is skin deep. 6. Lacerated wound 0.3 x 0.3 cm on the right cheek close to nose. Wound is skin deep. 7. Lacerated wound 0.4 x 0.4 cm on the right upper leg. Wound is skin deep. 8. Lacerated wound 0.4 x 0.4 cm on left cheek. 9. Lacerated wound 0.2 x 0.2 cm on the right cheek close to lip. Wound is skin deep. 10. Surgical wound 2 x 1.5 cm on the front of leg. (Trachiostomy were done). According to the doctor, the death in this case occurred due to cardiopulmonary arrest caused by haemorrhage shock and injury to vital organ (brain). He termed injury No.1 as fatal and described it as sufficient to cause death in an ordinary course of nature. The probable time between injury and death was stated to be 53-55 hours and between death and post-mortem was described as approximately 4/5 hours. Dr. Shazia Abdul Sattar WMO (PW.5) on 16.06.2010 at 11:50 p.m. conducted the postmortem examination on the dead body of Mst. Ferozan and noted the following injuries:- 1. A firearm wound 1 cm x 1 cm with collar of abrasion and bruised margins present on front and upper part of right side of chest. Just below right clavicle. In first intercostals spaces margins inverted wound of entry. No corresponding hole seen on clothes. 2. A firearm wound 1 cm x 1 cm into skin deep. With collar of abrasion and bruised margins inverted present on right side of upper part of abdomen. Wound of entry. No corresponding hole seen on clothes. Projectile of firearm recovered from this wound sealed signed and handed over to constable who had brought the dead body. According to the doctor, the death in this case occurred due to haemorrhage external and internal shock, injury to the vital organs (lungs, blood vessels of chest). She described injury No.1 as fatal and declared it sufficient to cause death in an ordinary course of nature. The probable time between injury and death was stated to be immediate and between death and post-mortem was described as approximately 7-10 hours. Dr. Asif Nawaz (PW.7) on 16.06.2010 at 4:05 p.m. conducted the medico legal examination of Ahmed Yar (injured) and observed the following injuries:- 1. A lacerated wound 1 x 0.5 cm on front of right ankle joint. Advise x-ray. 2. A lacerated wound 0.2 x 0.2 cm on back of right ankle joint. He also conducted the medico legal examination of Tahir at 3:35 p.m. and observed the following injuries:- 1. A lacerated wound 1 x 1 cm on left side of forehead. Advise x-ray. Margins inverted. 2. A lacerated wound 0.2 x 0.2 cm on bridge of nose. Advise x-ray. 3. A lacerated wound 0.2 x 0.2 cm on left eye lid. Advise x-ray. 4. A lacerated wound 0.5 x 0.5 cm on right cheek. Advise x-ray. 5. A lacerated wound 0.4 x 0.4 cm on right side forehead. Advise x-ray. 6. A lacerated wound 0.3 x 0.3 cm on right cheek. Close to nose. Advise x-ray. 7. A lacerated wound 0.4 x 0.4 cm on left upper lip. Advise x-ray. 8. A lacerated wound 0.4 x 0.4 cm on left cheek. Advise x-ray. 9. A lacerated wound 0.2 x 0.2 cm on right cheek close to lip. Advise x-ray. On the same day, Dr. Asif Nawaz (PW.7) at about 11:00 a.m., conducted the postmortem examination on the dead body of Lal Khan (deceased) and noted the following injuries:- 1. Lacerated wound 1 cm x 1 cm on right side of front of neck. Margins were inverted wound of entry and blackening present. Chest cavity full of blood. According to the doctor, the death in this case occurred due to haemorrhage external and internal shock, injury to the vital organs (lungs, aorta diaphragm, liver small intestine). He opined that injury No.1 was sufficient to cause death in an ordinary course of nature. The doctor further opined that the afore-mentioned injury was ante mortem in nature and caused through firearm weapon. The probable time between injury and death was stated to be immediate and between death and post-mortem was described as approximately 7-9 hours. 6. After the closure of prosecution evidence, the learned trial court examined the appellants and their co-accused under section 342, Cr.P.C. In response to the question "why this case against you and why the PWs deposed against you", both the appellants placed reliance on the reply of Allah Yar (co-accused) which he made in response to the similar question. Thus, it is relevant here to reproduce the said reply of Allah Yar co-accused which is as under:- "PWs are related inter se and there is previous litigation and enmity between me and complainant party, so due to this very grudge complainant party has falsely implicated me and my co-accused in this case." Likewise in response to the question "have you anything else to say", the appellants again opted to place explicit reliance on the answer of Allah Yar (co-accused) which he offered in response to this question, hence is being reproduced below:- "I am innocent. An encounter took place between complainant party of this case and Mallah family in which one Mansha Mallah was also murdered by the complainant party and on the same day the complainant party in connivance with the Mallah family got registered another case against us. When the Mallah family came to know about the true facts they made their true statements before the court of District and Sessions Judge, Chiniot in which we were acquitted. That is why, the complainant party has concealed the factum of murder of one Mansha Mallah deliberately. The postmortem of Mansha Mallah was conducted on the same day and same time and all these facts regarding that murder were deliberately concealed by the complainant party just to save their skin from the legal punishment. My whole family was entangled in this case with mala fide intention. It is very strange that the I.O of this case was the Incharge of the same police post; but he also concealed this fact deliberately on the behest of complainant party." The appellants neither opted to appear as witnesses in their own defence under section 340(2) of Cr.P.C. nor produced any evidence in their defence. 7. On the conclusion of trial, the appellants were convicted and sentenced as afore-stated. Hence, the instant appeal and Murder Reference. 8. It has been contended by learned counsel for the appellants that though apparently the FIR was registered within 2-1/2 hours, yet the circumstances of the case strongly suggest that the case was not registered at the time mentioned in the relevant column of the crime report; that none of the eyewitnesses…

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