Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: (1) Asghar Ali (2) The State etc VS Respondent: (1) Shaukat Ali Khan (2) Asghar Ali etc
Court Name: Lahore High Court Judge(s): Aalia Neelum Title: (1) Asghar Ali (2) The State etc vs (1) Shaukat Ali Khan (2) Asghar Ali etc Case No.: (1) Crl. Appeal No.519 of 2009 (2) Crl. Revision No.363 of 2009 Date of Judgment:2017-02-15 Reported As: 2017 LHC 1251, PLJ 2017 Cr.C. (Lahore) 570 Result: accordingly dismissed
Judgment AALIA NEELUM, J:- Asghar Ali son of Arshad Ali alias Ashraf, Caste Rajput, resident of Chak No.529/G.B, Police Station, Tarkhani, District, Faisalabad, the appellant along with his co-accused, Akbar Ali (since proclaimed offender) was involved in case F.I.R. No.75 2006, dated 03.03.2006, offence under Sections 302, 34 P.P.C., registered at Police Station, Tarkhani, District Faisalabad and was tried by the learned Additional Sessions Judge, Faisalabad. The learned trial court seized with the matter in terms of judgment dated 31.03.2009, convicted the appellant under Section 302 (b) P.P.C. and sentenced to Imprisonment for life. The benefit of Section 382-B Cr.P.C., was also extended in favour of the appellant. 2. Feeling aggrieved by the judgment of the learned trial court, Asghar Ali, appellan t has assailed his conviction by filing instant Criminal Appeal No.519 of 2009 whereas the complainant-Shaukat Ali (PW-11) being dis-satisfied with the impugned judgment dated 31.03.2009, preferred a Criminal Revision No.363 of 2009 for enhancement of sentence of the accused-Asghar Ali. As both the matters are arising out of one and the same judgment, therefore, they are being disposed of through a single judgment. 3. The prosecution story as alleged in the F.I.R (Ex.PF/2) lodged on the written complaint (Ex.PF) of Shaukat Ali Khan (PW-11) the complainant is that he (PW-11) is employee of Lyallpur Sizing and on 02.03.2006 at about 03:30 p.m., Zulfiqar alias Nanha son of Muhammad Hussain, Caste Gujjar, resident of said village came to his (PW-11) son Sakhawat Ali (since dead) and said to him (Sakhawat Ali-since dead) that he (Zulfiqar alias Nanha) had to take an amount which was given to the accused-Asghar Ali as loan and asked to Sakhawat Ali (since dead) to accompany him (Zulfiqar alias Nanha) whereupon, Sakhawat Ali (since dead) accompanied Zulfiqar alias Nanha to the accused-Asghar Ali. In the meanwhile, a quarrel took place among the accused-Asghar Ali, Sakhawat Ali (since dead) and Zulfiqar Ali alias Nanha, which was settled due to the intervention of the people and on the same day, at about 08:30 p.m., (night), Sakhawat Ali (since dead) was going to the P.C.O., of Waseem Baber to make a call and when Sakhawat Ali (since dead) reached near the house of the accused Asghar Ali, the
---
## Page 2
accused-Asghar Ali along with Akbar Ali while armed with 12-bore guns, arrived there and the accused-Asghar Ali raised lalkara that a lesson be taught to Sakhawat Ali (since dead) Ali for quarrelling and made straight fire with his gun 12-bore, which hit on the front side of chest of Sakhawat Ali (since dead). Thereafter, the accused-Asghar Ali made second fire, which landed on the right arm of Sakhawat Ali (since dead). During alleged occurrence, the co-accused, Akbar Ali (since proclaimed offender) continued firing that if any body would come near, he would not be spared. After hearing hue and cry, Khuda Dad (PW-13) and Riasat Ali (PW-12) attracted to the place of occurrence. The accused-Asghar Ali and Akbar Ali (since proclaimed offender) took the deceased, Sakhawat Ali in their house in an injured condition and Sakhawat Ali (since dead) succumbed to the injuries. 4. As per police karwai, Asghar Ali Zia, S.I. (PW-8) along with Nawaz ul Haq 645/C (PW-4), Muhammad Naeem 3353/C was present at Adda 45/G.B in connection with patrolling, where the complainant (PW-11) met Asghar Ali Zia, S.I. (PW-8) and produced written complaint (Ex.PF) before him (PW-8). Thereafter , Asghar Ali Zia, S.I. (PW-8) sent the complaint (Ex.PF) to the police station through Nawaz ul Haq (PW -4) for registration of formal F .I.R. 5. On the basis of written complaint (Ex.PF), formal F.I.R (Ex.PF/2) was chalked out by Muhammad Afzaal, A.S.I (PW-9). Thereafter, investigation was entrusted to Khalid Hussain, S.I. (CW-1), who reached at the spot and inspected the dead body of the deceased, Sakhawat Ali and prepared inquest report (Ex.PC), injury statement (Ex.PD) and took into possession a pistol 30-bore (C.1) from the hands of the deceased, Sakhawat Ali vide recovery memo (Ex.CW-1/A). Thereafter, the Investigating Officer (CW-1) sent the dead body of the deceased, Sakhawat Ali to Civil Hospital, Samundari for autopsy under the escort of Nawaz ul Haq 645/C (PW-4). The Investigating Officer (CW-1) secured bloodstained earth from the place of occurrence vide recovery memo (Ex.PG) and also took into possession empty cartridges of 12-bore pistol (C.3/1-8) and 30-bore pistol (C.2/1-4) from the place of occurrence through recovery memo (Ex.CW-1/B). Thereafter, the Investigating Officer (CW-1) prepared rough site plan of the place of occurrence (Ex.CW.1/C). Nawaz ul Haq 645/C (PW-4) produced last worn clothes of the deceased i.e. Shirt P 1), Shalwar (P-2), Bunyan (P-3) and a pair of shoes (P-4/1-2), before the Investigating Officer (CW-1), who took the same into possession vide recovery memo (Ex.PA). On 06.03.2006, Akbar Ali Nizami, Draftsman (PW-7) on the direction of the Investigating Officer (CW-1) as well as on the pointing of the prosecution witness, visited the place of occurrence and prepared scaled site plans (Ex.PE and Ex.PE/1) and handed over the same to the Inves tigating Officer (CW-1). On 23.03.2006, the Investigating Officer (CW-1) arrested the accused Asghar Ali, who got recovered a repeater gun (P-4) which was taken into possession by the Investigating Officer (CW-1) vide recovery memo (Ex.PM) and also prepared rough site plan of the place of recovery (Ex.CW -1/D). Thereafter , the Investigating Officer (CW-1) recorded the statements of the prosecution witnesses under Section 161 of Cr .P.C. 6. Having found the accused-Asghar Ali guilty , the Investigating Officer (CW-1) got prepared challan through the concerned Station House Officer and placed the same before the court of learned Judicial Magistrate Ist Class, Samundari. The learned Judicial Magistrate Ist Class, Samundari sent the same to the worthy Sessions Judge, Faisalabad for its entrustment to the court of competent jurisdiction. On 04.12.2006, the learned trial court formally charge sheeted the appellant to which he pleaded not guilty and claimed trial. The prosecution in support of its version produced as many as thirtee n (13) prosecution witnesses. In addition to that, Khalid Hussain, S.I./Investigating Of ficer and Nasir Abbas, Inspector were also examined as CW -1 and CW -2 respectively . 7. Ocular account of the occurrence in this case has come out from the statements of the complainant (PW-11), Riasat Ali (PW -12) and Khuda Dad (PW -13). 8. Dr. Sadiq Ali appeared as PW-6 and deposed that on 03.03.2006 at 02:05 p.m., he (PW-6) conducted postmortem examination of the body of the deceased-Sakhawat Ali and found following injuries on his person: Injuries. 1. Fire arm wound of injury 2 x 1 cm on the right upper arm 10 cm below the upper margin of right shoulder . No blackening and burning were seen. 2. Fire arm wound of entry 1 x 1 cm, oval in shape on the front of outer part of right upper arm, 2 cm inner to the injury No.1, no blackening and burning was seen.
---
## Page 3
3. Fire arm wound of entry 1 x 1 % cm on the front of right shoulder , 5 cm inner to injury No.2. (wound of exit) of injury No.3 was present about 3 cm from the wound of entry on the front and upper part of right shoulder . 4. Fire arm wound of entry left front of chest 5 cm below the inner border of left clavical. 5. Fire arm wound of entry 2 x 1 % cm on the right front of chest. Wound of exit 2 x 2 cm on right front of chest 3 cm below the neck. 6. Fire arm wound of entry 1 % x 1 cm on the right back of chest 11 cm below the upper margin of right shoulder . Wound of exit 2 x 1 % cm away from the left side to the injury No.6. After conducting postmortem examination, the doctor rendered following opinion:- Opinion. "After conducting the postmortem examination, the doctor has opined that all the above mentioned injuries were ante-mortem and inflicted by fire arm. Injuries No.1, 2 and 4 were grievous and fatal in nature. In ordinary course of nature, injuries No.1, 2 and 4 were sufficient to cause death individually and collectively . Death in this case was due to haemorrhage and injuries to vital organs (lungs)." "The time between injuries and death was sudden and that of between death and postmortem was about 6 to 18 hours." "Ex.PB is the correct carbon copy of postmortem report and pictorial diagram of the injuries is Ex.PB/1." The statements of remaining prosecution witnesses are formal in nature. 9. On 10.01.2007, the learned A.D.A gave up PWs-Sikandar Ali being won over whereas Abdul Hameed 9/C and Ehsan Ali 1372/C being un-necessary . On 20.03.2007, the learned Deputy District Public Prosecutor gave up PW- Liaqat Ali being un-necessary . The learn ed Assistant District Public Prosecutor tendered the report of Chemical Examiner , Lahore (Ex.PJ), report of Forensic Science Laboratory (Ex.PL), report of Serologist (Ex.PK) and closed the prosecution evidence on 03.03.2008. 10. The appellant was also examined in terms of Section 342 Cr.P.C., wherein he showed willingness to appear as his own witness in disproof of the allegati ons levelled against him and also opted to produce defence evidence. In response to a particular question why this case is against him and why PWs depo sed against him, Asghar Ali (the appellant) made following deposition:- "The PWs are related inter-se and deposed against me falsely to support false prosecution version. The deceased was a notorious criminal with the history of many criminal cases. On the day of occurrence at about 8.30 p.m, Sakhawat Ali deceased and his companion Zulfiqar while duly armed with pistols entered into my house and confined the inmates in my Baithak on pistol point. The deceased demanded money and my licensed repeater, on my refusal, he took me from Baithak to other room on pistol point. In the meantime, the inmates of my house, unbolted the door of the Baithak and tried to run away from the Baithak, Sakhawat Ali deceased turned towards the Baithak, in the meantime, I availed opportunity to take my licensed repeater from the room of my house and went to the roof of my house. On which, the deceased started firing upon me from the courtyard of my house while taking shelter of wall of my house. I while exercising my right of self-defence of person and property, I started firing, Zulfiqar, companion of the deceased, also started firing from my house. In the meantime, the deceased Sakhawat rushed towards the room where my sisters were present and made lalkara that my sister be abducted. Thereafter the deceased also made firing from the verandah situated in front of the room where my sisters were present. During the cross-firing, Sakhawat deceased received injuries in the verandah and fell in the adjacent room. The complainant and PWs were not present at the place of occurrence, at the time of occurrence. We summoned the police and when the police came at the place of occurrence and took the dead body into possession along with pistol from the room of my house. The I.O also took into possession four crime empties of 30 bore pistol from my house and sent pistol and empties to the office of Forensic Science Laboratory, Lahore and according to the report of said Laboratory, the empties were
---
## Page 4
found to be fired from the pistol of the deceased. My co-accused Akbar was not present in the house at the time of occurrence. It was dark night no one witnessed the occurrence. I have committed no offence. 11. The learned trial court after evaluating the evidence available on record in the light of arguments advanced from both sides, found the prosecution version proved beyond any shadow of reasonable doubt, resulting into conviction of the appellant in the afore stated terms. 12. I have heard the arguments advanced by the learned counsel for the parties and have minutely perused the record available on the file. 13. The occurrence in this case as per F.I.R. (Ex-PF/2) took place at 8:30 p.m. on 02-03-2006 and the incident was informed to the complainant-Shoukat Ali (PW-11) by his (PW-11) brother , Riasat Ali (PW-12) and Khuda Dad (PW- 13), khalazad of Sikhawat Ali-the decea sed, at 8:30 p.m. The complainant-Sh oukat Ali (PW-11) reported the incident to the police at 7.15 a.m on 03-03-2006 at "Adda Pull 45" to Asghar Ali, A.S.I (PW-8) through written complaint (Ex.PF) and formal F.I.R. was chalked out at 7.25 a.m. on 03-03-2006. The Police Station, Tarkhani District, Faisalabad was at a distance of 18 kilometers from the place of occurrenc e. The incident has taken place at Chak No.529/GB. The inordinate delay of ten hours and forty-five minutes in reporting the incident has not been explained by the prosecution in-spite of the fact that Police Station was at a distance of 18-kilometers from the place of occurrence. The delay of ten hours and forty-five minutes in reporting the incident provides sufficient time for deliberation and consultation. Delay in lodging the F.I.R. often results in embellishment, which is creation of an afterthought. Riasat Ali (PW-12) deposed during cross-examination that, "I narrated the occurrence to Shaukat Ali complainant when he was present in his house at about 8.30 P.M. after the occurrence. I and Rhuda Dad PW went to the house of Shaukat Ali PW to inform him together . Shaukat PW was present in the room of his house at that time. Again said we knocked the door of the house of Shaukat Ali, who came at the door . We went into the house and narrated the occurrence to him in the court-yard of the house." Khuda Dad (PW-13) deposed during cross-examination that, "Soon after the occurrence, within five minutes we went to Shaukat Ali complainant and narrated the whole story to him, who was present at his house. We told the occurrence to Shaukat Ali in the verandah where we were sitting." From the above facts and deposition of the complainant (PW-11) and prosecution witnesses i.e. PW-12 and PW-13, it reveals that the prosecution has not succeeded in proving that the F.I.R. was lodged promptly. Although the complainant-Shoukat Ali (PW-11) deposed during court statement that, "The accused persons made nakka-bandi on passages in the village, therefore, I on getting a chance was proceeding to report the matter at the police station but when I reached at Adda Pull 45, police party met me there. I at 7.15 AM presented a written application Ex.PF to the I.O, which was signed by me." The testimony of the complainant is not supported by any independent evidence that the accused persons had made "nakka-bandi" of the passages in the village. The defence got confronted the testimony of the complainant-Shoukat Ali (PW-11) with the written complaint (Ex.PF). The complainant-Shoukat Ali (PW-11) deposed during cross-examination that, "I got recorded in my statement Ex.PF that the accused persons made Naka-bandi in the village, therefore, I on getting a chance was proceeding to report the matter at police station. (Confronted with Ex.PF where it is not so recorded)." So, the inordinate delay of about ten hours and forty-five minutes from the time of receiving information from Riasat Ali (PW-12) and Khuda Dad (PW-13) remained unexplained. 14. The matter does not stop here. There is yet another infirmity which further deepens the suspicion and casts cloud of doubt on the authenticity of the F.I.R. (Ex.PF/2). The complainant-Shoukat Ali (PW-11) got prepared an application for registration of criminal case from his relative namely "Anwar" who had come to visit him (PW-11) from Sadiq-Abad. Non-mentioning of this fact in the application/complaint (Ex.PF) indicates that the complainant- Shoukat Ali (PW-11) had not stated complete truth and that the F.I.R. came into existence later on, after due deliberations and consultations and author of the complaint should have to state that the complaint was prepared by him under the instructions of the complainant, which was shown to the complainant, read over to him (the complainant) which was signed by the complainant. The Hon'ble Supreme Court of Pakistan in the case of "Allah Bachaya and another v. The State" (PLD 2008 SC 349) held that:-
---
## Page 5
"In the instant case, the FIR was not recorded at the police stations. It has been held time and again that FIRs which are not recorded at the police stations suffers from the inherent doubt that those were recorded at the spot after due deliberations." Even the complainant-Shoukat Ali (PW-11) had not given any explanation regarding delay in lodging the report and about preparation of complaint, in the complaint (Ex.PF) as well as in his (PW-11) statement before the learned trial court, therefore, in these circumstances chance of consultations and deliberations , on the part of the complainant- Shoukat Ali (PW -11), cannot be ruled out. 15. Another important aspect of the case which cannot go un-noticed is that the postmortem examination of the dead body of the deceased-Sikhawat Ali in this case was also conducted with delay of seventeen hours and thirty minutes from the death of Sikhawat Ali. The occurrence in this case took place on 02-03-2006 at 08:30 p.m. whereas it is evident from the perusal of postmortem examination report (Ex.PB) of the deceased- Sikhawat Ali, that postmortem was conducted on 03-03-2006 at 2:05 p.m. Doctor Sadiq Ali (PW-6) deposed during cross-examination that "As soon as I received the police papers I started P.M. examination on the dead body of deceased without any delay on my part." The complainant-Shoukat Ali (PW-11) deposed that, "The police dispatched the dead body of Sikhawat deceased from the spot at about 8-AM. " He (PW-11) further deposed that "I along with my brother and other relatives took the dead body of Sikhawat Ali to the police station. We along with dead body reached the P.S. at about 8.30 AM. We carried the dead body in a private dalla." Contrarily , Riasat Ali (PW-12) deposed during cross-examination that, "Police had recorded my statement for the first time at the spot at about 8/8.30 AM. Thereafter my statement was also recorded at the P.S. at the time of registration of the FIR. FIR was lodged soon after the dead body was sent to the hospital for autopsy ." So, it is evident that the postmortem examination of the deceased-Sikhawat Ali was conducted with inordinate delay of six hours thirty minutes from the time of reporting the incident and seventeen hours and thirty minutes from the alleged occurrence. It indicated that the incident was not reported to the police as stated by the prosecution. Delay in lodging the First Information Report, quite often results in consultation and deliberation, which is a creation of after-thought. The prosecution failed to explain the delay in reporting the incident as well as delay in conducting postmortem examination of the dead body of Sikhawat Ali-the deceased. Hence, these circumstances raised considerable doubt, regarding the veracity of the case, and it was held that it was not safe to base conviction. Unexplained delay of reporting the incident in lodging the First Information Report proves fatal to the case of the prosecution. 16. The ocular account has been furnished by Riasat Ali (PW-12) and Khuda Dad (PW-13). It is in the evidence of the complainant Shoukat Ali (PW-11), that he (PW-13) is father of Sikhawat Ali-the deceased, Riasat Ali (PW-12) is paternal uncle of Sikhawat Ali-the deceased and Khuda Dad (PW-13) is khalazad of Sikhawat Ali-the deceased. It is the prosecution version that the complainant was resident of Faisalabad. The complainant-Shoukat Ali (PW-11) deposed during examination-in-chief that, "I was serving at Lyallpur sizing at the time of occurrence." The complainant-Shoukat Ali (PW-11) depos ed during cross-examination that, "Riasat and I reside in the same village. Riasat my brother is a lambardar of the village." It is in the evidence of Riasat Ali (PW-12) that he (PW- 12) is resident of Islamabad and runs a shop of sweets and milk and Khuda Dad (PW-13) is resident of Chak No.76/JB Jodhan, Tehsil & District, Faisalabad. The complainant- Shoukat Ali (PW-11) was not witness of the first part of the occurrence which took place at 3:30 p.m. on 02-03-2006. The narration of first part of the occurrence was based on the information rendered by Zulfiqar P.W. During cross-examination the defence got confronted the deposition of the complainant-Shoukat Ali (PW-11) with his written complaint (Ex.P F). The complainant-Shoukat Ali (PW-11) deposed during cross-examination that, "I had got recorded in Ex.P.F that above facts were narrated to me by Zulfiqar PW. (Confronted with Ex.P.F where it is not so recorded.)". Admittedly occurrence took place, as per prosecution version, at Chak No.529/GB Saifabad near the house of the accused-Asghar Ali. It was stated by the complainant-Shoukat Ali (PW-11) that, "On the same day younger brother of Sabir who was ill and Sikhawat Ali came to phone at Awami P.C.O situated at Saif-abad. When he was going to phone at the said P.C.O, on his way when he reached near the house of Asghar Ali accused, Asghar raised lalkara and opened fire with his Repeater gun which hit Sikhawat Ali decesed on his chest." Whereas during cross-
---
## Page 6
examination, he (PW-11) deposed that, "I had not got recorded in my applicatio n Ex.P.F that on the same day younger brother of Sabir who was ill and Sikhawat Ali came to phone at Awaami PCO situated at Saifa- abad. Volunteered that I had got recorded in Ex.P.F that brother of Sikhawat Ali deceased was sick and he had gone to the P.C.O at Chak No. 529/GB. (Confronted with Ex.P.F where there is no mention of brother of Sikhawat Ali deceased. The P.C.O is adjacent to the house of Asghar accused. I had got recoded in Ex.P.F that second fire hit Sikhawat deceased on his right shoulder . (Confronted with Ex.PF where it is not so recorded)." Whereas, regarding second part of the occurrence wherein Sikhawat Ali (the deceased) lost his life, Riasat Ali (PW-12) deposed during examination-in-chief that, "We went to Shaukat Ali PW, the father of the deceased and narrated the incident to him." Whereas, during cross-examination he (PW-12) deposed that, "I had stated in my statement u/s 161 Cr.P.C that we went to Shaukat Ali PW, the father of the deceased and narrated the incident to him (Confronted with Ex.DA where it is not so record ed)." Similarly , Khuda Dad (PW- 13) deposed during examination-in-chief that, "We went to Shaukat Ali complainan t P.W and narrated the occurrence to him." Whereas, during cross-examination, he (PW-13) deposed that, "I got recorded in my statement to the police that we went to Shaukat Ali complainant and narrated the occurrence to him (Confronted with Ex.DC where it is not so recorded)." Whereas Khuda Dad (PW-13), deposed regarding his (PW-12) presence at the place occurrence that, "I got recorded in my statement before the police I went to attend a marriage party in Chak No.529/GB on 2.3.2006. (Confronted with Ex.DB where it is not so recorded). " In this background, presence of the alleged eye-witnesses on the spot seems doubtful. The complainant-Shoukat Ali (PW-11), himsel f was not a witness of the occurrence and was just an informer and his evidence could be stated as hearsay evidence which could not be treated as evidence in the eyes of law. What remains as substance is testimony of Riasat Ali (PW-12) and Khuda Dad (PW-13) and both (PW-12 and PW 13) could not justify their presence at the spot. According to the story of prosecution narrated in the written complaint (Ex.PF), when Sikhawat Ali-the deceased reached near the house of Asghar Ali-accused, then the accused-Asghar Ali raised lalkara and made straight fire with his repeater gun which hit Sikhawat Ali-deceased on his chest. Second fire shot made by the accused-Asghar Ali hit on right side of the right arm of Sikhawat Ali-the deceased. Meanwhile Riasat Ali (PW-12) and Khuda Dad (PW-13) also attracted to the place of occurrence on hearing hue and cry. The accused persons continued aerial firing and thereafter they picked up the dead body in to their house. While appearing before the learned trial court, Khalid Hussain S.I. (CW-1) deposed during cross- examination that, "I found blood only at point No.1 which is a room of residential house of accused. No blood or trail of blood was found at any other place except point No.1. Place of occurrence is amidst of abadi. I had not found any abrasion or scratches on the dead body of Sikhawat deceased, therefore, I have not mentioned the same in injury statement…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.