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Petitioner: The State VS Respondent: Akhtar Hussain
Court Name: Lahore High Court Judge(s): Asjad Javaid Ghural, Anwaarul Haq Pannun Title: The State vs Akhtar Hussain Case No.:(1) Murder Reference No.15 of 2015 (2) Criminal Appeal No.127 of 2015 (3)
Criminal Revision No.64 of 2015 Date of Judgment:2019-02-21 Reported As: 2019 LHC 2785 Result: Crl Revision dismissed Judgment Anwaarul Haq Pannun, J. This single judgment shall decide Murder Reference No.15 of 2015 submitted under Section 374 Cr.P.C by the learned trial Court, Criminal Appeal No.127 of 2015, filed under Section 410 Cr.P.C by the appellants (i) Akhtar Hussain, (ii) Muhammad Gulzar, (iii) Muhammad Mukhtar and (iv) Muhammad Mumtaz and Criminal Revision No.64 of 2015 filed under Sections 435/439 Cr.P.C. by Ghulam Nabi complainant seeking enhancement of sentences of the appellants Muhammad Mukhtar and Muhammad Mumtaz. All matters having arisen out of the same judgment dated 07.03.2015, passed in case FIR No.78/2011, dated 15.03.2011, offences under Sections 302, 148, 149 PPC, registered at Police Station Qaimpur, District Bahawalpur by the learned Addl. Sessions Judge, Hasilpur, whereby while acquitting Muhammad Yaseen, the appellants have been convicted and sentenced. 2. It is pertinent to mention here that during the pendency of the instant appeal, the appellants, namely , (i) Akhtar Hussain and (ii) Muhammad Mukhtar have been acquitted of the charge on the basis of their compromise with the legal heirs of Muhammad Ali i.e. one of the deceased vide judgment of this Court dated 23.12.2015 but the appeal in hand to the extent of appellants, namely , Muhammad Gulzar and Muhammad Mumtaz is still alive. Murder Reference No.15/2015 to the extent of Muhammad Gulzar , appellant is also in field. The appellants, namely , Muhammad Gulzar and Muhammad Mumtaz have been convicted and sentenced as under:- Appellant Muhammad Gulzar , under Section 302(b) PPC "Death sentence as Tazir alongwith Rs.1,00,000/- as compensation u/s 544-A Cr. P.C. payable to the legal heirs of deceased Mst. Parveen Bibi or in default thereof, to further undergo S.I. for six months." Appellant Muhammad Mumtaz, under Section 302(b) PPC "Imprisonment for life along with Rs.50,000/- as compensation u/s 544-A Cr.P.C. payable to the legal heirs of deceased Mst. Parveen Bibi or in default thereof, to further undergo S.I. for three months."
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Both the convicts/appellants Muhammad Mukhtar and Muhammad Mumtaz were extended the benefit of Section 382-B Cr .P.C. 3. The case of the prosecution as contained in written application (Exh.P A), on the basis of which, FIR (Exh.PR) was chalked out, duly reiterated by Ghulam Nabi, complainant, resident of Mauza Jamalpur , Tehsil Hasilpur , District Bahawalpur , while appearing in the Court as (PW -1) is, to the ef fect that:- "I am r/o Mauza Jamalpur , Allah Dad Thaheem is the lessee of land owned by Mehar Muhammad Aslam deceased. My son Muhammad Ali, me & Muhammad Bashir Ahmad are the employees of said Allah Dad, hence, residing in that land. In one room, Bashir Ahmad, Allah Dad and myself and in another room my son Muhammad Ali and his wife Parveen were sleeping. On 15.2.2011, at about 2:00 mid night we woke up on the noise of motorcycle. We saw in the light of bulb that Mukhtar Ahmad, Akhtar, Gulzar Ahmad and Muhammad Mumtaz all armed with guns 12 bore and Yasin accused present in the court, standing in the courtyard of said Dera with motorcycle 125 CC P-1. Bashir Ahmad, Allah Dad and myself identified them as accused persons. Muhammad Akhtar accused said me that his cousin Parveen Bibi is in the custody of Muhammad Ali, my son, she would be handed over to him. Meanwhile my son Muhammad Ali opened the door of his room. Mukhtar Ahmad accused present in the court opened fire from his gun which inflicted injury on the left hand of my son Muhammad Ali. Muhammad Ali fell down, then Muhammad Akhtar accused present in the court fired with his gun upon Muhammad Ali which inflicted injury which hit on his back. Parveen Bibi daughter of Haq Nawaz tried to fled away, then Gulzar Ahmad accused present in the court opened fire with his gun which hit on the fore-head of Parveen. Then Mumtaz Ahmad accused opened fire with his gun, which caused injury on the abdomen of Parveen Bibi. Ghulam Yasin raised lalkara to the effect that both the injured be not escaped. I and above mentioned witnesses tried to get hold the accused but all the said accused fled away from the place of occurrence raising their weapons and leaving motorcycle P-1 at side. We escorted the injured but they lost their lives. The motive behind this occurrence is that the accused had suspicion of illicit relations inter-se Muhammad Ali and Parveen Bibi. Prior to this occurrence, the accused persons extended threats of dire consequences to the deceased. I present an application Ex.PA to Akbar Ali SI for registration of case which is thumb marked by me in token of its correctness. I also presented motorcycle P-1 to police official. I also received the dead body of my son Muhammad Ali vide receipt." 4. The investigation was encapsulated into a report under section 173 Cr.P.C, which was duly submitted before the learned trial Court, after taking cognizance of the offence, the learned trial Judge while supplying the requisite copies of the statements under Section 265(c) Cr.P.C, to the accused, charge sheeted them, while professing their innocence, they pleaded not guilty and claimed trial. The learned trial Judge directed the prosecution to produce its evidence for establishing the charge. In order to establish its case, prove the charge, against the appellants, the prosecution has relied upon the eye witnesses account furnished by the complainant Ghulam Nabi (PW-1) and Allah Dad Iftikhar (PW 2) in the category of "ocular account". The medical evidence in the case, has been furnished by Dr. Kalsoom Iqbal, SWMO, THQ Hospital, Hasilpur (PW-6). She had conducted the postmortem examination over the dead body of Parveen Bibi. She deposed that on 15.3.2011, Akbar Ali SI Police Station Qaimpur presented by her the injury statement Exh.PM and inquest report Exh.PN/1-4 of deceased Parveen Bibi for her postmortem examination through Sajjad Ahmad 1982-C PS: Qaimpur. The dead body was identified by Allah Dad son of Khawaja, caste Thaheem, resident of Mauza Chadua, PS: Qaimpur and Bashir Ahmad son of Shah Muhammad, caste Dhangu, resident of Mauza Muchran Tehsil Khairpur Tamewali. The dead body was received at 1:00 p.m. and she conducted the postmortem of the deceased Parveen Bibi at 2:00 p.m. on the same day, which read as under:- EXTERNAL EXAMINA TION: A dead body of a female aged about 22/23 years lying supine on postmortem table. Length 4' 3" weight 50/55 k.g. rigor mortis developed, postmortem staining were present on the dependent parts of the body. Purification Nil. Condition of eyes opened, condition or orifices, mouth semi opened containing nostrils, all the sphincters relaxed, congestion present. Patehtcheal haemorrhage No. EXAMINA TION OF CLOTHES:
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She was wearing shalwar black in colour , shameez black, Dupatta line dar all blood stained, signed by me and handed over to police. EXAMINA TION OF NECK: On the neck, ligature mark or violence present ages on dissection. On the neck no ligature marks or violence present. DESCRIPTION OF INJURIES: i) A lacerated wound of size 20 cm x 25 cm damaged the frontal bone. RT parital bone of the skull in small pieces going deep (Damag) the brain membranes, metallic coming from the bone multiple forne bodies (pellets) present in the wound. This is the wound of entry . Exit wound is not present. ii) A lacerated wound present over the right side size of wound 4cm x 5cm with inverted margins blackened and burnt going blindly situated at the right iliac region. This wound of entry corresponding whole of the Kameez is also present burnt in nature. On dissection, the wound muscle lacerated seat and peritoneum intact. Metallic bodies are present (pellets) along with wade was removed from the abdominal missile. This is the wound of entry . Exit wound is not present. iii) There are multiple wound on the thigh and the interior medial aspect of the right thigh measuring about 1.5 cm x 1.5 cm each. Skin deep. On dissection of the wound each wound containing mattelic bodies. These are the wound of entry corresponding small whole on the shalwar was also present burnt in nature. CRANIUM AND SPINAL CORD: Scalp, skull, brain and membranes damag ed already described, and healthy verteb ras and found NAD, spinal card was also healthy . THORAX: Walls, ribs, cartridges all were found healthy and NAD, pleurae was NAD and healthy , larynx and trachea and blood vessels are also NAD and healthy , right lung and left lung and pericardium were NAD. Pericardium and heart were NAD and were containing few CC of blood. ABDOMEN: Walls, right ileac fossa damaged and already described and rest of the abdominal walls are NAD and healthy . Peritoneum, mouth, pharynx and esophagus, diaphragm, pancreas, liver, spleen, kidneys, bladder and organs of generation were found NAD and bladder contains few CC of urine. Vaginal swabs were taken for DNA test. Stomach was containing few CC of mixed digested food, small intestine containing chyme and gases, large intestine containing gases and fecal matter . Probable time between injury and death within few minutes and probable time between death and postmortem more than 12 hours and less than 24 hours. FINAL OPINION: After thorough internal and external exam ination of the dead body , I am of the opinion that above described injuries are ante mortem in nature and are caus ed by some firearm weapon, while injury No.1 collectively caused the destruction of vital organs (brain) leading to the several hemorrhage and neurogenic shock and death while the other injuries enhances the rate of death. Injury No.1 is the main cause of death. Such types of injuries are sufficient to cause death in ordinary course of nature. However , final opinion will be given after receiving the report from chemical examiner and Histopathology . After conducting post mortem, I handed over post mortem report and other files for chemical examiner and dead body of Parveen Bibi deceased to Sajjad Ahmad 1982-C, post mortem report No.KA-04/201 1 Ex.PP/1-6 and diagrams are true computer copies post mortem report which bears my signatures. 5. The learned Prosecutor gave up the prosecution witnesses, namely , Bashir Ahmad, Zulfiqar Ali 1782/C and Allah Wasaya, constable which tendering into evidence, the report of Forensic Scien ce Laboratory regarding marks examination report No.000024814 dated 10.7.2013 (Exh.PY) and report of Serologist bearing No.562 dated 20.08.2013 regarding blood stained earth of Muhammad Ali and Parveen Bibi, deceased (Ex.PZ), closed the prosecution' s evidence. Both the accused/appellants when examined under Section 342 Cr.P.C, refuted the entire
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evidence produced by the prosecution and in reply to a question as to why this case against them and why the PWs have deposed against them, Muhammad Gulzar , appellant replied as under :- "PWs are closely related to the deceased and are highly inimical towards me and my co-accused and they have involved me and co-accused in this case falsely in order to grab handsome money from us in connivance with local police." In responding to question have you anything else to say, the accused/appellant Muhammad Gulzar replied as under:- "I am innocent. I rely upon the statement of my co-accused Muhammad Mukhtar . whereas Muhammad Mumtaz, appellant replied as under :- "PWs are closely related to the deceased and are highly inimical towards me and my co-accused and they have involved me and co-accused in this case falsely in order to grab handsome money from us in connivance with local police." In responding to question have you anything else to say, the accused/appellant Muhammad Mumtaz replied as under:- "I am innocent. I rely upon the statement of my co-accused Muhammad Mukhtar . 6. The appellant-Muhammad Mumtaz neither opted to appear as his own witness under Section 340(2) Cr.P.C. nor produced any defence evidence, however , he relied upon the defence evidence already produced by him. The appellants in their defence, produced Sheikh Muhammad Saleem (DW-1) and Muhammad Imran (DW-2) whereas Ali Muhammad, Secretary Union Council No.27, City West, Mailsi was produced as CW-1. On the conclusion of trial, the learned trial Court has convicted and sentenced the appellants-Muhammad Gulzar and Muhammad Mumtaz through the impugned judgment dated 07.03.20915 as alluded to in para No.1 of the instant judgment, hence this appeal. 7. Learned counsel for the appellants submits that it was an un-witnessed midnight occurrence and as such, a blind murder , taken place inside a deserted dera situated in the agricultural land far away from village Abadi; adds that keeping in view the motive set out in the FIR, there was no motive with the appellants for committing murder of the deceased; adds that source of light as well as presence of PWs at the place of occurrence at the time of occurrence, could not have been establi shed; Learned counsel for the appellan ts while referring inquest report submits that after coming to know about the occurrence, the FIR has been lodged by PW-1, at the instance of PW- 2, acting as a puppet in his hands who is the land owner , having political enmity; lastly prayed for acquittal of the appellants. 8. On the other hand, learned Deputy Prosecutor General assisted by the learned counsel for the complainant have supported the impugned judgment by maintaining that the appellants are named in the FIR lodged with reasonable promptitude, that eyewitnesses have fully implicated the appellants in the occurre nce, that medical evidence is in line with ocular account, that the appellants have failed to point out any ill-will, malafide and animosity on the part of PWs for their false implication in the case and prayed for dismissal of the appeal. 9. Arguments advanced by the learned counsel for the parties have been heard and record perused. 10. Before analyzing the evidence of the prosecution in the light of arguments of learned counsel for the parties, it may be appropriate that some undisputed features of the case, be enumerated herein below:- (i) As per prosecution, the occurrence had taken place at 2:00 a.m. during the intervening night on 14/15.03.201 1; (ii) two persons, namely , Muhammad Ali son of the complainant (aged about 45/46 years) and Mst. Parveen (aged about 23/24 years) daughter of Haq Nawaz, who had no lit were murdered; (iii) the cause of death of both the deceased according to the M.Os, eye witnesses i.e. PW-1, PW-2, PW-5 and PW -6 was the result of firearm injuries, (iv) the place of occurrence is dera located in the land of Mehar Muhammad Aslam; (v) motive according to the FIR and the deposition of PW-1 behind the occurrence was that the accused had suspicion that Muhammad Ali had illicit relations with Mst.Parveen Bibi; (vi) no recovery had been affected on the pointing out of the appellants during the course of investigation;
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vii) the prosecution has not been able to establish any source of light available at the place of occurrence; 11. Proceedings with the case, in a chronological order , it is observed that Akbar Ali, SI (PW-9), the first Investigating Officer, when reached at the place of occurrence, Ghulam Nabi-complainant, presented him a written complaint Ex.PA and a motorcycle bearing registration No.9896-MLN Honda 125-C, red colour P-1. The Investigating Officer, after making an endorsement on the complaint in the form of his police proceeding at 7.30 a.m. at Mauza Jamalpur , sent the same to Police Station for registration of the case whereupon FIR was accordingly registered. He kicked of his investigation by preparing inquest reports of deceased Muhammad Ali and Mst. Parveen Bibi Ex.PK and PN as required under Rules 25-35 of the Police Rues 1934 which reads as under:- Rule 25.35. The Inquest Report : (1) When the investigation has been completed the investigating officer shall draw up a report, in duplicate by the carbon copying process, in Forms 25.35 (1) A. B. or C. according as the deceased appears to have died:- A from natural causes. B by violence. C by poisoning. (2) Such report shall state the apparent cause of death, give a description of any mark or marks of violence which may be found on the body and describe the manner in which and the weapon or instrument with which such marks appear to have been inflicted. (3) The report shall be signed by the police officer conducting the investigation and by so many of the persons assisting in the investigation as concur therein and shall be forwarded without delay through the Superintendent to the District Magistrate or, if the District Magistrate has so directed, to the Sub-Divisional Magistrate. (4) The following documents shall form part of such report:- (a) The plan of the scene of death. (b) The inventory of clothing, etc. (c) A list of the articles on and with the body , if the body is sent for medical examination. (d) A list of articles sent for medical examination, if any . (5) In cases of death by hanging, the report shall give particulars as to the weight and sufficiency of the support and the nature of the thing used to bear the weight of the body. (6) The carbon copy of such shall be filed in the police station register No.VI. (7) A copy of all reports relating to deaths caused by railway accidents shall, when made by a police officer other than a railway police of ficer, be forwarded to the Assistant Inspector-General, Government Railway Police. The observations of the Investigating Officer (PW-9) which he recorded while preparing the inquest report Ex.PK and Ex.PN, while discharging his official obligations, being privileged to have a visual touch with the scene of crime in its column No.8 of the same, observed that________regarding both the deceased in Ex.PK and Ex.PN. The same fact has been affirmed by the lady Dr. Kalsoom Ibqal (PW-6) who whiles conducting the post mortem on the dead body of Mst. Parveen has observed that, "A dead body of a female aged about 22/23 years lying supine on postmortem table. Length 4' 3" weight 50/55 k.g. rigor mortis developed, postmortem staining were present on the dependent parts of the body . Purification Nil. Condition of eyes opened, condition or orifices, mouth semi opened containing nostrils , all the sphincters relaxed, congestion present. Patehtcheal haemorrhage No. and opined that the time elapsed between the death and post mortem more than 12 hours and less than 24 hours. From the above, it appears that dead bodies of the deceased, remained un-attended after the occurrence. The delay in postmortem examination over the dead bodies of the deceased, also creates doubt about the presence of the PWs at the crime scene at the relevant time of occurrence. Moreover , the Investigating Officer had also got prepared a scaled plan as required under Rule 25.13 of Police Rules, 1934 which reads as under:- Rule 25.13. Plan of scene. - (1) In all important cases two plans of the scene of the offences shall be prepared by a qualified police officer or other suitable agency one to be submitted with the charge sheet or final report and the other to be retained for departmental use.
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(2) The following rules shall govern the preparation of maps or plans by patwaris or other expert:- (i) Pursuant to paragraph 26 of the Patwari Rules, the Financial Commissioner , with the concurrence of the Inspector General of Police, issues the following instructions concerning the preparation by patwaris of maps needed to illustrate police inquiries . (ii) In ordinary cases no demands for such maps will be made upon patwaris. (iii) In the case of heinous crime, especially in cases of murder or riots connected with land disputes, the police officer investigating he case will, if he considers an accurate map is required, summons to the scene of the crime the patwari of the circle in which it occurred and cause him to prepare two maps, one for production in court as evidence and the other for the use of the police investigating agency. In the former reference relating to facts observed by the police officer should be entered while in the later references based on the statement of witnesses which are not relevant in evidence may be recorded. He will be careful not to detain the patwaris longer than is necessary for the preparation of maps. (iv) It is necessary to define clearly the responsibility of the patwari and police officer in respect of these maps. (v) The police officer will indicate to the patwari the limits of the land of which he desires map, and the topographical items to be shown therein. The patwari will then be responsible for drawing the maps correctly , by tracing, if necessary , the second copy, for making accurately on maps all these items and for entering on the maps due distances. He will not write on the maps, intended for production as evidence in the court any explanations. The police officer may write any explanations on the traced copy of the map. (vi) It is for the police officer himself to add to the second copy of the map such remarks as may be necessary to explain the connection of the map with the case under inquiry . He is also responsible equally with the patwaris for the correctness of all distances, but on the copy of the map drawn by the patwari for presentation, in court he will make no remarks or explanations based on the statements of witnesses. (vii) It will be convenient if all the entries made by the patwari are made in black ink, and those added by the police officer in red ink. (vii) Patwaris will not in any case be required by a police officer to make a map f an inhabited enclosure or of land inside a town or village site. 12. The draftsman Shaukat Ali, Patwari appeared as PW-7, he stated that on 15.03.201 1 he was posted at Jamalpur . On the direction of police, he prepared a scaled site plan of the place of occurrence on pointing out of complainant and PWs in duplicate which is Ex.PQ and Ex.PQ/1 with scale 200 karams equal to one inch. In cross- examination, said draftsman (PW -7) deposed as under:- "I have no where given any note in both the scaled site plan Ex.PQ and Ex.PQ/1 that the name of the PWs were so and so who pointed me points No.1 to 9 in this site plan. The room situated on the eastern was without shutters and doors. Volunteered both doors and roof were in broken condition. There was bot furniture or utensil in that room and the same was vacant. I have no where pointed out in the scaled site plan any fire place (Chulha) or any bath room situated in the compound of the house. I have not pointed out the place in my scaled site plan from where the I/O had taken into possession the motorcycle. The actual Abadi of Mauza Jamalpur is about 11/2 k.m. away from the place of occurrence. The nearest Abadi of the place of occurrence is Mauza Jamalpur." 13. Although, there is a judicial consensus that the site plan is not a substantive piece of evidence. It has been held in the case reported in State of U.P., Appellant v. Babu and others, Respondents (AIR 2003 Supreme Court 3408) and Tori Singh and another , Appellants v. State of Uttar Pradesh, Respondent (AIR 1962 Supremes Court 399) wherein it has been held that, "A rough sketch map prepared by the sub-inspector on the basis of statements of investigating and showing the place where the deceased was hit and also the places where the witnesses were at the time of the incident would not be admissible in evidence in view of the provisions of S. 162 of the Code of Criminal Procedure, for it is in effect nothing more than the statement of the Sub-Inspector that the eye- witnesses told him that the deceased was at such and such place at the time when he was hit. The sketch- map would be admissible so far as it indicates all that the Sub-Inspector saw himself at the spot; but any
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mark put on the sketch-map based on the statements made by the witnesses to the Sub-Inspector would be inadmissible in view of the clear provisions of S. 162 of the Code of Criminal Procedure as it will be no more than a statement made to the police during investigation. Therefore, such marks on the map cannot be used to found any argument as to the improbability of the deceased being hit on that part of the body where he was actually injured, if he was standing at the spot marked on the sketch-map." In the case reported in Abdul Aziz and another v. The State (PLJ 1985 Cr.C. (Lahore) 446 (DB) , wherein it has been held that, ---Site plan--- Evidentiary value of---Held: Unless corroborated from independent reliable source, reliance on evidence of interested witnesses to be unsafe. The Hon'ble Supreme Court of Pakistan in the case reported as…
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