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Petitioner: Muhammad Sajjad (Shujaat Waseem) and anothers VS Respondent: State and
Court Name: Lahore High Court Judge(s): Malik Shahzad Ahmad Khan, Sadiq Mahmud Khurram Title:Muhammad Sajjad (Shujaat Waseem) and anothers vs State and
JUDGMENT
Reported As: PLJ 2020 Cr.C. (Lahore) 782 Result: Order accordingly Judgment JUDGMENT Malik Shahzad Ahmad Khan, J.--This judgment shall dispose of Criminal Appeal No. 216 of 2016, filed by Muhammad Sajjad (Shujaat Waseem) appellant against his conviction and sentence, PSLA No. 47 of 2016, filed by Muhammad Yasin petitioner/complainant against the acquittal of Muhammad Ejaz, Muhammad Ayaz, Muhammad Rafique, Muhammad Idrees and Muhammad Shahid (Respondents No. 2 to 6 of PSLA No. 47/2016) and Murder Reference No. 48 of 2016, sent by the learned trial Court for confirmation or otherwise of the Death sehtence awarded to Muhammad Sajjad (Shujaat Waseem) appellant We propose to dispose of all these matters by this single judgment as the same have arisen out of the same judgment dated 28.01.2016, passed by the learned Additional Sessions Judge, Dunyapur, District Lodhran. Muhammad Sajjad (Shujaat Waseem) appellant along with Muhammad Ejaz, Muhammad Ayaz, Muhammad Rafique, Muhammad Idrees and Muhammad Shahid (accused since acquitted/Respondents No. 2 to 6 of PSLA No. 47/2016)), was tried in private complaint filed by Muhammad Yasin (complainant), under Sections 302/337A(i)/148/ 149/337A(ii) (added later-on), PPC, Police Station Sadar Dunyapur , District Lodhran. After conclusion of the trial, the learned trial Court vide its judgment dated 28.01.2016, has convicted and sentenced Muhammad Sajjad (Shujaat W aseem) appellant as under: Under Section 302(b), PPC to 'Death' for committing Qalt-i Amd of Muhammad Waseem (deceased). He was also ordered to pay Rs. 2,00,0001- (rupees two hundred thousand only) to the legal heirs of the deceased as compensation under Section 544 A of Cr.P.C. and in default thereof to further undergo simple imprisonment up to six months. However vide the same judgment, accused Muhammad Ejaz, Muhammad Ayaz, Muhammad Rafique, Muhammad Idrees and Muhammad Shahid were acquitted of the charges.:
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Initially Muhammad Yasin Complainant (PW-2) got registered case FIR No. 251/2012 dated 24.05.2012 offences under Sections 302/148/149, PPC and 337A(ii) (added later-on), at Police Station Sadar Dunyapur, District Lodhran against Muhammad Sajjad (Shujaat Waseem) appellant, Muhammad Ejaz, Muhammad Ayaz, Muhammad Rafique, Muhammad Idrees and Muhammad Shahid (accused since acquitted). Feeling dissatisfied with the proceedings and investigation of the police, private complaint was filed by the complainant. After recording the cursory statements of the complainant, as well as, PWs the learned Additional Sessions Judge, Dunyapur, District Lodhran summoned the accused persons nominated in the private complaint to face trial. Brief facts of the case as given by the complainant Muhammad Yasin (PW-2), in his private complaint are that he (complainant) was resident of Chak No. 356/W .B, Tehsil Dunyapur , District Lodhran and was a cultivator by profession. On 24.05.2012 at about 6.00 p.m. the complainant along with his son namely Muhammad Ishtiaq (PW-3), was cutting fodder in his Ahatta, whereas Muhammad Waseem (deceased), had gone to the nearby pond, so that his cattle may drink water. In the meanwhile, the accused persons namely Muhammad Sajjad (appellant) while armed with dagger, Muhammad Rafique (accused since acquitted) while armed with hatchet, Muhammad Ayaz (accused since acquitted), while armed with Sota, Muhammad Shahid (accused since acquitted), while armed with Sota, Muhammad Ijaz (accused since acquitted), while empty handed and Muhammad Idress (accused since acquitted), while empty handed came at the pond. Muhammad Ayaz (accused since acquitted) raised lalkara to teach a lesson to Muhammad Waseem (deceased) for beating him. Muhammad Idrees and Muhammad Ijaz (accused since acquitted), caught hold Muhammad Waseem (deceased) from his arms, 'whereupon Muhammad Sajjad (appellant), inflicted a dagger blow, which landed at the right flank of Muhammad Waseem (deceased). Second dagger blow inflicted by Muhammad Sajjad (appellant), landed on the left thigh near inguinal area of Muhammad Waseem (deceased). Mst. Nasreen Bibi (PW-4), came forward to rescue Muhammad Waseem (deceased), whereupon the accused persons left Muhammad Waseem (deceased) and Muhammad Rafique (accused since acquitted), inflicted a hatchet blow, which landed on the back side of the head of Mst. Nasreen Bibi (PW-4). Muhammad Waseem (deceased), ran towards the Ahatta of Muhammad Akmal PW, whereupon Muhammad Ayaz and Muhammad Shahid (accused since acquitted), inflicted Sota blows to him, due to which Muhammad Waseem (deceased), fell in the Ahatta of Muhammad Akmal (given-up PW). On hearing hue and cry, the complainant along with Muhammad Ishtiaq (PW-3), reached at the spot and witnessed the occurrence. The accused persons fled away from the spot along with their weapons. Muhammad Waseem succumbed to the injuries at the spot. Muhammad Yasin Complainant (PW-2), further alleged in his private complaint that the motive behind the occurrence was that a few days earlier, Muhammad Ayaz (accused since acquitted), had entered into the house of the complainant to steal pigeons, whereupon the said Muhammad Ayaz was beaten by Muhammad Waseem (deceased). It was added by the complainant in his private complaint that local police being in league with the accused party and without any legal justification, declared Muhammad Ejaz, Muhammad Ayaz, Muhammad Rafique, Muhammad Idrees and Muhammad Shahid (accused since acquitted), as innocent, which necessitated the filing of the abovementioned private complaint. The appellant Muhammad Sajjad (Shujaat Waseem) was arrested in this case on 18.03.2013, by Muhammad Khalid Goraya SI (PW-11), whereas Muhammad Ejaz, Muhammad Ayaz, Muhammad Rafique and Muhammad Shahid (accused since acquitted), were arrested in this case on 05.07.2012, by Bashir Ahmad SI (CW-1). On 24.03.2013, Muhammad Sajjad (Shujaat Waseem) appellant, disclosed and then led to the recovery of dagger P-3, which was taken into possession by Muhammad Khalid Goraya SI (PW-11), vide recovery memo. Ex.PD. As mentioned earlier, being dissatisfied with the proceedings and investigation of the police, complainant Muhammad Yasin (PW-2), instituted a private complaint. After institution of private complaint the cursory statements of the complainant Muhammad Yasin (PW-2) and other PWs were recorded. The appellant along
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with other accused mentioned in the private complaint were summoned by the learned trial Court to face the trial. The learned trial Court, after observing legal formalities, as provided under the Code of Criminal Procedure, 1898 framed charge against the appellant, as well as, against Muhammad Ejaz, Muhammad Ayaz, Muhammad Rafique, Muhammad Idrees and Muhammad Shahid (co-accused since acquitted) on 07.05.2013, to which they pleaded not guilty and claimed trial. In order to prove its case, the prosecution produced twelve witnesses during the trial. Muhammad Yasin complainant (PW-2), Muhammad Ishtiaq (PW-3) and Mst. Nasreen Bibi (PW-4) are the witnesses of ocular account. Muhammad Ishtiaq (PW-3), also furnished the evidence qua the recovery of dagger P-3, at the instance of Muhammad Sajjad (Shujaat Waseem) appellant, whereas Dr. Irfan ul-Haq (PW-6) and Dr. Shamas Shoukat (PW-10), furnished the medical evidence. Muhammad Khalid Goraiya SI (PW -11), partially investigated the case. Muhammad Akram (PW-1), Muhammad Asghar 226/C (PW-5), Muhammad Rafique 79/HC, Muzafar Hussain 08/H.0 (PW-8), Muhammad Naveed 367/C (PW-9) and Sheraz Latcef SI (PW-12), are formal witnesses. Two Court witnesses were also examined in this case. Bashir Ahmad SI (CW-1), is the second Investigating Officer of the case, whefeas Naseem Abbas 05/HC (CW -2), is a formal witness. The prosecution also produced documentary evidence in the shape of memo. of possession of blood-stained clothes relating to Muhammad Waseem deceased (Ex.PA), complaint (Ex.PB), memo. of possession of blood- stained earth (Ex.PC), memo. of possession of blood-stained dagger P-3, at the instance of Muhammad Sajjad (Shujaat Waseem) appellant (Ex.PD), inquest report (Ex.PE), application for post-mortem examination (Ex.PF), injury statement of Mst. Nasreen Bibi injured (Ex.PG), rough site-plan of the place of occurrence (Ex.PH), scaled site-plan of the place of occurrence in duplicate (Ex.PJ/1 and Ex.PJ/2), post-mortem report of Muhammad Waseern deceased (Ex.PK), F.I.R (Ex.PL), medico legal report of Mst. Nasrcen Bibi injured (Ex.PM), site-plan of the place of recovery of dagger P-3 (Ex.PN), report of Punjab Forensic Science Agency, Lahore (Ex.PO), report of Chemical Examiner (Ex.PP) and closed its evidence. 8. The statements of Muhammad Sajjad (Shujaat Waseem) appellant, Muhammad Ejaz, Muhammad Ayaz, Muhammad Rafique, Muhammad Idrees and Muhammad Shahid (co-accused since acquitted), under Section 342 of, Cr.P.C. were recorded. They refuted the allegations levelled against them and professed their innocence. While answering to a question that 'Why this case against you and why the PWs have deposed against you the appellant and his co-accused (since acquitted), gave identical answers. The answer of the appellant is reproduced as under: "PW-2, PW-3 and PW-4 are close relatives inter-se, PW-3 Muhammad Ishtiaq is son of complainant Yasin, PW-4 Nasreen Bibi is daughter of complainant who are partisan. In year 2005, a land dispute arose between the complainant and my paternal uncle Muhammad Idrees (co-accused) filed a civil suit against complainant and his sons Muhammad Ishfaq, Muhammad Ishtiaq PW-3 and Muhammad Arshad. We favoured Muhammad Idrees in this case'. Similarly, on 17.06.2005, the complainant and his son Muhammad Ishfaq, Muhammad Ishtiaq (PW-3) and Muhammad Arshad trespassed the house of my paternal uncle Muhammad Idrees and injured my cousin Shujaat Waseem. On this, a criminal case FIR No. 240/2015, under Section 452, 337AII/34, PPC was got registered at P.S Sadar Dunyapur on 28.06.2005 against complainant and his sons. We also favoured Muhammad Idrees and pursued the case along with him, due to this reason, complainant parly has a grudge against us. Similarly other PWs are public servants and they have deposed against me in connivance with the complainant party ." Muhammad Sajjad (Shujaat Waseem) appellant, Muhammad Ejaz, Muhammad Ayaz, Muhammad Rafique, Muhammad Idrees and Muhammad Shahid (accused since acquitted), did not opt to make statements on oath in terms of Section 340(2) of Cr.P.C., however, in defence evidence, they produced attested copy of plaint titled "Muhammad Idrees us. Yaseen etc", suit for permanent injunction along with order dated 24.02.2006 (Ex.DE), attested copy of FIR No. 240/2005, Police Station Saddar Dunyapur (Ex.DF), copy of identity card of Muhammad Sajjad (Shujaat Waseem) appellant (Ex.DG).
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The learned trial Court vide its judgment dated 28.01.2016, found Muhammad Sajjad (Shujaat Waseem) appellant (appellant) guilty, convicted and sentenced him as mentioned and detailed above. 9. Learned counsel for the appellant contends that the appellant is absolutely innocent and has falsely been implicated in this case by the complainant being in-league with the local police; that the occurrence was unseen and fake prosecution eye-witnesses have been planted in this case; that according to the prosecution case, Muhammad Waseem deceased died in the Ahatta of Muhammad Akmal PW but the Investigating Officer of this case namely Bashir Ahmed SI (CW-1), has categorically stated that Muhammad Akmal PW had informed the elders of Muhammad Waseem deceased regarding the occurrence, which has proved that the complainant and other eye witnesses were not present at the spot, at the time of occurrence; that there is delay of more than 14 hours in conducting post-mortem examination of Muhammad Waseem (deceased), which further shows that the prosecution eye-witnesses were not present at the time of occurrence the abovementioned delay in the post-mortem examination has been consumed to procure the attendance of fake eye-witnesses; that the cause of death of the deceased is Injury No. 2, which was on the right upper thigh (inguinal area) of Muhammad Waseem (deceased) but the said injury has not been attributed to the appellant by any prosecution eye-witness while making statement before the learned trial Court, whereas regarding the remaining injuries, there are material contradictions in the statements of the prosecution eye witnesses, which further shows that they were not present at the spot at the relevant time; that the recovery of dagger P3 has been planted against the appellant and positive report of Punjab Forensic Science Agency, Lahore in respect of the presence of blood on the said dagger is highly doubtful because the occurrence in this case took place on 24.05.2012, whereas the dagger has been allegedly recovered from the possession of the appellant on 24.03.2013 i.e., after ten months from the occurrence whereas, the blood disintegrates within a period of 3 to 4 weeks; that the prosecution has failed to prove the motive alleged against the appellant because no FIR was lodged against Ayaz co-accused, when he statedly entered the house of Muhammad Waseem deceased in order to steal his pigeons; that even otherwise, no specific date and time of the occurrence of motive has been mentioned by the prosecution eye-witnesses; that the impugned judgment of conviction and sentence of the appellant is result of misreading and non-reading of evidence, available on the record of the present case, therefore, he (appellant) may be acquitted from the charge and Murder Reference be answered in the negative. 10. On the other hand, learned Deputy Prosecutor General, for the State, assisted by learned counsel for the complainant has argued that the occurrence in this case took place on 24.05.2012 at 6.00 p.m. and. FIR was promptly lodged on 24.05.2012 at 7.10 p.m. and as such the promptness of the FIR rules out the possibility of any deliberation or concoction; that the appellant and his co-accused were named in the promptly lodged FIR with their specific roles; that the roles attributed to the appellant and his co-accused were prima facie supported by the medical evidence, furnished by Dr. Irfan-ul-Haq (PW-6) and Dr. Shamsa Shoukat (PW-10); that as the Medical Officers are usually not available at the night time at Tehsil Headquarter Hospitals, therefore, the minor delay in conducting the post-mortem examination on the body of Muhammad Waseem deceased is not relevant in this case; that the prosecution eye-witnesses stood the test of lengthy cross-examination but their evidence could not be shaken; that the prosecution case against the appellant is further corroborated by the recovery of dagger P3, on the pointation of the appellant and the positive report of Punjab Forensic Science Agency, Lahore (Ex.PO); that motive of previous quarrel between Muhammad Waseem deceased and Muhammad Ayaz co-accused is also proved in this case through reliable and trustworthy evidence of the prosecution witnesses; that there is no substance in the appeal filed by the appellant, therefore, the same may be dismissed and conviction and sentence of the appellant, as awarded by the learned trial Court may be upheld and maintained and Murder Reference be answered in the affirmative. Insofar as the criminal PSLA No. 47 of 2016, Filed by the complainant against the acquittal of Muhammad Ejaz Respondent No. 2, Muhammad Ayaz Respondent No. 3, Muhammad Rafique Respondent No. 4, Muhammad Idrees Respondent No. 5 and Muhammad Shahid Respondent No. 6, is concerned, it is
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contended by learned counsel for the complainant that Respondents No. 2 to 6, were specifically named in a promptly lodged FIR, with the specific roles that Muhammad Ejaz Respondent No. 2 and Muhammad Idrees Respondent No. 5, caught hold Muhammad Waseem deceased from his arms, whereupon Muhammad. Sajjad (Shujaat Waseem) appellant inflicted dagger blows on his body. Muhammad Ayaz Respondent No. 3 and Muhammad Shahid Respondent No. 6, also inflicted Sota blows on the body of Muhammad Waseem deceased, whereas Muhammad Rafique Respondent No. 4, inflicted a hatchet blow, which landed on the back side of the head of Mst. Nasreen Bibi PW-4; that the injuries attributed to Muhammad Ayaz Respondent No. 3, Muhammad Rafique Respondent No. 4 and Muhammad Shahid Respondent No. 6, are fully supported by the medical evidence; that the abovementioned respondents have wrongly been acquitted by the learned trial Court vide impugned judgment; that although the abovementioned respondents were declared innocent by the police and no weapon was recovered from their possession but opinion of the police was not binding on the Court and mere non-recovery of weapon of offence by itself is not sufficient to acquit the abovementioned respondents; that the impugned judgment of the learned trial Court to the extent of acquittal of abovementioned respondents is against the law and facts of the present case, therefore, the same may be set aside and the above-mentioned respondents be convicted and sentenced in accordance with the law. We have heard the arguments of learned counsel for the parties, as well as, learned Deputy Prosecutor General for the State and have also gone through the evidence available on the record with their able assistance. First of all we take up the argument of learned counsel for the appellant that as Bashir Ahmad SI/Investigating Officer (CW-1), has admitted during his cross-examination that it was Muhammad Akmal Lumberdar/PW, who informed the elders of Muhammad Waseem deceased about the occurrence and the said admission has established that the prosecution eye-witness namely Muhammad Yasin (PW-2), Muhammad Ishtaiq (PW-3) and Mst. Nasreen Bibi (PW-4), were not present at the spot at the time of occurrence and the occurrence was unseen. It is true that Bashir Ahmad SI/Investigating Officer (CW-1), admitted during his cross-examination as under: "It is correct to suggest that Akmal Lubardar got recorded his statement that he informed the elders of the deceased Waseem about his injuries. It is correct to suggest that he also got recorded that he informed to the elders of deceased that after receiving the injuries, Waseem fell down in his Ihata and died there. It is correct to suggest that he also got recorded, that Idrees was at some distance from the pond at that time. It is correct to suggest that according to my investigation said Akmal informed the elders of the deceased telephonically. It is correct to suggest that according to my finding in police Diary No. 25, the deceased Waseem fell in the Ihata of Akmal, who informed his elders telephonically. It is correct to suggest that Muhammad Akmal is the same witness, who also identified the dead body at the time of post-mortem." It is also true that as per site-plan Ex.PJ, the dead body of Muhammad Waseem deceased was present inside the Ahatta of the abovementioned Muhammad Akmal PW and even in the FIR (Ex.PL), it was so mentioned that during the occurrence Muhammad Waseem deceased ran towards the Ahatta of Muhammad Akmal PW. It is also correct that the said Muhammad Akmal PW has been given up by the prosecution but it is by now well settled that it is the quality of evidence and not the quantity which weighs with the Courts to decide any case. The prosecution produced three eye-witnesses in this case to prove its case, therefore, non-appearance of Muhammad Akmal PW in the witness box is not fatal to the prosecution case. Moreover, the abovementioned statement of Bashir Ahmad SI/Investigating Officer (CW-1), is of no help to the appellant because the above-referred Muhammad Akmal PW was not produced in the witness box as a defence witness by the appellant. It is also by now well settled that after recording evidence by the learned trial Court, the opinion of the Investigating Officer becomes irrelevant. Reference in this respect may be made to the case of "Muhammad Ahmad (Mahmood Ahmad) and another vs. The State" (2010 SCMR 660). We are, therefore, of the view that there is no substance in the above-mentioned argument of learned counsel for the appellant.
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13. Insofar as the prosecution evidence in this case is concerned, we have noted that the occurrence in this case took place on 24.05.2012 at 6.00 p.m and the FIR was statedly lodged on the same day at 7.00 p.m, however, the post-mortem examination on the dead body of Muhammad Waseem deceased was conducted on 25.05.2012 at 8.00 a.m, i.e., with the delay of about 14 hours from the occurrence. Dr. Irfan-ul-Haq (PW- 6), has categorically stated in his examination in-chief that the dead body of Muhammad Waseem deceased was brought by the police on 24.05.2012, at 11.50 p.m. He further stated that the complete police papers were received on 25.05.2012 at 7.50 a.m and thereafter he conducted post-mortem examination of the deceased on 25.05.2012 at 8.00 a.m, meaning thereby that the police papers remained incomplete for a period of about fourteen hours after the occurrence and as such the said delay of about fourteen hours in conducting post-mortem examination on the dead body of Muhammad Waseem deceased has created serious doubt regarding presence of the prosecution eye-witnesses at the spot at the relevant time. The abovementioned delay in conducting post-mortem examination and delivery of police papers to Dr. Irfan-ul- Haq (PW-6), is suggestive of the fact that the prosecution eye-witnesses were not present at the spot at the relevant time and the said delay has been consumed in procuring the attendance of fake eye-witnesses in this case. We may refer here the case of "Irshad Ahmad versus The Slate" (2011 SCMR 1190) wherein it was observed that the post-mortem examination of the deadbody had been conducted with a noticeable delay and such delay is generally suggestive of a real possibility that time had been consumed by the police in procuring and planting eye-witnesses and in cooking up a story for the prosecution before preparing police papers necessary for getting a post-mortem examination of the deadbody conducted. Similarly, in the case of Khalid alias Khalidi and two others vs. The State (2012 SCMR 327), the Hon'ble Supreme Court of Pakistan considered the delay of 10/11 hours from the occurrence in conducting the post-mortem examination on the deadbody of deceased, to be an adverse fact against the prosecution case and it was held that it shows that the FIR was not lodged at the given time. Similar view was taken by the Apex Court of the country in the cases reported as "Muhammad Ashraf vs. The State" (2012 SCMR 419), "Muhammad Ilyas vs. Muhammad Abid alias Billa and others" (2017 SCMR 54) and "Zafar vs. The State and others" (2018 SCMR 326). It is further noteworthy that according to the statement of Dr. Irfan-ul-Haq (PW-6), both the eyes of Muhammad Waseern deceased were half open, at the time of his post-mortem examination. Similarly according to column No. 8, of the inquest report (Ex.PE), eyes and mouth of Muhammad Waseem deceased were semi-open, which shows that the prosecution eye-witnesses namely Muhammad Yasin (PW-2) Muhammad Ishtiaq (PW-3) and Mst. Nasreen Bibi (PW-4), who were father, brother and sister of Muhammad Waseem deceased, respectively, were not present at the spot at the time of occurrence because it is a common observation in our society that when close relatives are present at the spot, at the time of occurrence, they first of all close the mouth and eyes of the deceased. Thus, the abovementioned fact has established that the abovementioned prosecution eye-witnesses were not present at the spot at the time of occurrence. We have further observed that there are glaring contradictions between the ocular account and the medical evidence of the prosecution regarding the number of injuries sustained by Muhammad Waseem deceased. As per evidence of Dr. Irfan-ul-Haq (PW-6), there were total nine injuries on the body of the deceased and the cause of death of Muhammad Waseem deceased was Injury No. 2, which was an incised wound on antro-medial side of left thigh but while appearing in the witness box, none of the prosecution witness has attributed the said injury to Muhammad Sajjad (Shujaat Waseem) appellant or to any other accused. Although the prosecution eye-witnesses attributed the injuries on the chest and below abdomen of Muhammad Waseem (deceased) to the appellant but even, in respect of the said injuries, there are material contradictions/conflicts/improvements in the prosecution evidence. Muhammad Yasin complainant (PW-2), did not mention in the FIR that any injury on the chest of the deceased was inflicted by the appellant or by any other…
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