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Petitioner: Hafeez Ahmed & another, Chaudhary Abdul Aziz, The State VS Respondent: Hafeez JUDGMENT
Court Name: Lahore High Court Judge(s): Sadaqat Ali Khan, Ch. Abdul Aziz Title:Hafeez Ahmed & another, Chaudhary Abdul Aziz, The State vs Hafeez
JUDGMENT
Reported As: 2022 LHC 8058 Result: Appeal Dismissed Judgment JUDGMENT Ch. Abdul Aziz, J. Hafeez Ahmed and Waleed Hussain (appellants) along with Aneeb Hussain, Gulraiz Yaqoob, Zahoor Akhtar, Sayab Zahoor, Liaquat Ali, Tanzeel Ulfat alias Adeel and Nabeel Anjam involved in case FIR No.162/2017 dated 27.05.2017 registered under Sections 302, 337-A (i), 337-A (ii), 337-F (vi), 337-L (2), 148, 149 & 109 PPC at Police Station Kallar Syedan, Rawalpindi were tried by learned Additional Sessions Judge/Model Criminal Trial Court, Rawalpindi. Trial court vide judgment dated 29.02.2020 while acquitting the afore-said co-accused proceeded to convict and sentence the appellants in the following terms:- (1) Hafeez Ahmed (appellant) Under Section 302 (b) PPC to suffer death sentence. He was also directed to pay compensation of Rs.2,50,000/- to the legal heirs of Muhammad Afzaal (deceased) under Section 544-A Cr.P.C. and in default whereof to undergo simple imprisonment for 06-months and amount of compensation was ordered to be recoverable as arrears of land revenue. (2) Waleed Hussain (appellant) Under Section 337-F (vi) PPC to pay Daman of Rs.60,000/- in terms of Section 337-N (2) PPC to victim Ajmal Maqbool and in default whereof he was ordered to be kept in jail and dealt with in the same manner as if sentenced to simple imprisonment. Challenging their conviction and sentence, Hafeez Ahmed and Waleed Hussain (appellants) filed Criminal Appeal No.113 of 2020, whereas Chaudhry Abdul Aziz (complainant) approached this Court through Criminal Appeal No.190 of 2020 against the acquittal of respondents No.2 to 8. At the
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same time, the complainant preferred Criminal Revision No.63 of 2020 for the enhancement of sentence of respondent No.3. Likewise, trial court sent reference under Section 374 Cr.P.C. which was numbered as Murder Reference No.34 of 2020 for the confirmation or otherwise of death sentence awarded to Hafeez Ahmed (convict). All these matters since are inter se connected, thus are being disposed of through this single judgment. 2. Succinctly stated the case of the prosecution as it gleans from FIR (Exh.PA) is to the effect that on 27.05.2017 Chaudhary Abdul Aziz (PW.10) along with his son Muhammad Afzaal who was a constable in Police Special Branch, Rawalpindi, came to the house of his brother-in-law (Sala) situated at Pindori Chauhdrian, Tehsil Kallar Syedan; that there was a dispute of land between nephew of Riasat Ali, namely, Ajmal Maqbool; that at about 4:00 p.m. he and his son attracted to a commotion, reached Bhata Road near the house of Muhammad Abbas and saw Hafeez Ahmed armed with pistol, Zaheer Ahmed armed with pistol .30 bore, Liaqat Ali armed with iron rod, Aneeb Ahmed armed with pistol .30 bore, Nabil Ahmed armed with iron rod, Waleed armed with rod, Adeel, Taseen Nazir armed with iron rod and Gulraiz armed with iron rod; that the accused were beating to Ajmal Maqbool and Nazakat Ali; that Liaquat Ali, Nabeel Ahmed, Waleed Ahmed, Adeel Ahmed, Taseen Nazir, Gulraiz and Qadoos gave repeated iron rod blows to Ajmal Maqbool which landed on different parts of his body; that Zahoor Ahmed inflicted pistol butt blow which landed at the head of Nazakat Ali; that when the complainant and his son Muhammad Afzaal stepped forward in order to rescue the victims, Hafeez Ahmed (appellant) made .30 bore pistol shot which hit at his mouth; that the second fire made by Hafeez Ahmed (appellant) landed at the chest of Muhammad Afzaal; that due to the afore-said injuries, Muhammad Afzaal fell down; that besides the complainant, the incident was witnessed by Shaukat Ali and Riasat Ali; that the perpetrators while making firing made good their escape, whereas Muhammad Afzaal succumbed to the injuries while being shifted to Civil Hospital, Kallar Syedan; that the incident occurred at the abetment of Sayab Zahoor. Motive behind the occurrence statedly was the dispute of land. 3. On 27.05.2017 Anwar Javed SI (PW.15) after the receipt of information qua the incident reached THQ Hospital, Kallar Syedan where Abdul Aziz (complainant) made oral statement/Fard Bian (Exh.PN) which was read over to him in token of its correctness. Thereafter, he prepared application for postmortem (Exh.PU), drafted inquest report (Exh.PV) and handed over the dead body to Muhammad Kamran Constable for its autopsy at THQ Hospital Kallar Syedan. He also examined both the injured, namely Ajmal Maqbool and Nazakat and prepared their injury statements (Exh.PD/1 & Exh.PE/1). Subsequently, he visited the spot, recorded the supplementary statement of the complainant, collected blood through cotton from the place of occurrence through memo Exh.PL. From the spot, he also took into possession two crime empties of .30 bore pistol vide memo Exh.PM. He also prepared rough site plan (Exh.PW). On 05.06.2017 he arrested accused Aneeb, Waleed, Abdul Qadoos and Gulraiz and interrogated them. On 11.06.2017 accused Aneeb, Abdul Qadoos, Waleed Hussain and Gulraz made respective disclosures and in pursuance thereof led to the recovery of pistol (P.8), iron rod (P.11), iron rod (P.10) and iron rod (P.12) which were secured through memos Exh.PO, Exh.PQ, Exh.PP and Exh.PR respectively. On 04.07.2017 he arrested Hafeez Ahmed (appellant) who on 10.07.2017 in pursuance of disclosure got recovered pistol (P.5) which was secured vide memo Exh.PK. He arrested Zahoor Ahmed accused on 05.09.2017 who on 10.09.2017 got recovered pistol (P.13) vide memo Exh.PZ. 4. Prosecution in order to prove its case against the appellant produced 15-PWs, out of whom, Dr. Arsala Arjumand Consultant (PW.3) and Dr. Ahsan Waqas Khan Niazi (PW.12) furnished the medical evidence, Shoukat Ali (PW.9), Abdul Aziz (PW.10), Ajmal Maqbool (PW.11) and Nazakat Ali (PW.13) provided ocular account of the occurrence and Anwar Javed SI (PW.15) investigated the case. The remaining PWs, more or less were formal in nature.
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5. On 27.05.2017 Dr. Ahsan Waqas Khan Niazi (PW.12) conducted the autopsy of Muhammad Afzaal and noted the following injuries:- (1) Lacerated wound approximately 1.5 x 1.5 cm in the soft pellet anterior to epiglottis with brain matter leaking from the hole in the sphenoid bone. (2) (a) Lacerated wound 1 x 1 cm below the lower ribcage in the mid clavicular line, margin invertive with abrasion collar .5 x .5 cm superior aspect of the hole. (b) Upon dissection, the projectile (bullet) recovered beneath the skin in left flank just superior to iliac crest. The doctor gave the following opinion:- "In my opinion, death occurred due to cardio pulmonary arrest by complication of massive brain injury and irreversible hypo-volemic shock, both internal and external haemorrhage. Injuries were inflicted by firearm, ante mortem in nature and sufficient to cause death in ordinary course of nature. Probable time that elapsed between injuries and death was within minutes whereas between death and postmortem was 2 to 4 hours." Dr. Ahsan Waqas also conducted the medico legal examination of Nazakat Ali on 27.05.2017 observed the injury which reads as under:- (1) Incised wound measuring 2 x .5 cm in left occipital region, 9 cm above left ear, depth probed and exposed bone seen. On the same day, Dr. Ahsan Waqas medically examined Ajmal Maqbool and noted the following injuries:- (i) Swelling on posterior aspect of right hand tender and movement of little and 4th (ring finger) restricted. (ii) Lacerated wound in right parietal region of skull measuring 5 x .5 cm lateral to midline, depth probed and bone not exposed. (iii) Parallel/linear shape contusion/bruises on the back. Multiple in number occupying the region of upper back (patterned bruises with parallel lines of pechiae with central sparing). (iv) Subjective complaint of pain int eh sternum, no swelling seen tender on palpation. 6. After the conclusion of prosecution evidence, the learned trial court also examined the appellants and their co-accused under Section 342, Cr.P.C. Both the appellants in response to question "why this case registered against you and why the PWs have deposed against you" made almost the same reply. For ready reference, the reply tendered by Hafeez Ahmed (appellant) is mentioned below:- "The instant case has been registered against me and others with mala fide intentions and ulterior motives. Ajmal Maqbool, Nazakat Ali, Muhammad Afzaal and 05 other unknown persons came to village of occurrence on 27.05.2017 and forcibly started ploughing disputed land, showing their displeasure against the order passed by the civil court in a civil suit for Permanent Injunction filed by Maqbool Hussain father of Ajmal Maqbool PW against Aneeb Hussain, Nabeel, Waleed, their father Liaqat Ali, Hafeez Ahmed, Sabtain Hafeez, Siab Zahoor and his father Zahoor Akhtar. On 17.09.2016 wherein status quo order was passed on the same day, whereas, written reply was filed by the aforementioned defendants on 17.11.2016 and status quo order was vacated on 20.05.2017. Ajmal Maqbool etc feeling aggrieved although filed appeal, however, while forming unlawful assembly after due deliberation unlawfully started ploughing the said land on fateful day. It is also worth mentioning here that the said appeal was also dismissed vide order dated 15.11.2017. Dishonesty of the prosecution can also be measured from the fact that they neither produced relevant record during the investigation nor tendered the same in evidence before this court. Abdul Qadoos accused when found Ajmal Maqbool unlawfully ploughing the said land he alone went to them and stopped them from doing so, which provoked Ajmal Maqbool etc and they started
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beating Abdul Qadoos and gave him fist and kicks blows. Many co-villagers attracted there and while observing the entire situation in order to safe life of Abdul Qadoos pelted stones etc upon Ajmal Maqbool and other which resulted into causing some minor injuries to Ajmal Maqbool and Nazakat Ali. As the foretasted unexpected situation cropped up unknown accused persons accompanying Afzaal deceased started firing and a fire was accidently hit Muhammad Afzaal deceased who succumbed to the injury in a few minutes at the spot. Ajmal Maqbool etc fled away from the place of occurrence leaving behind Muhammad Afzaal in injured condition who died at the spot. Information of the occurrence was imparted to the police post Chowk Pindori having territorial jurisdiction upon which they came to the place of occurrence, examined the injured Abdul Qadoos, prepared his injury statement and sent him through a constable to THQ hospital Kallar Syedan for his medical examination who was medical examined at 05:30 pm. The incharge police post along with other police officials collected the empties of .9 mm pistol and .32 bore pistol from the place of occurrence and shifted the dead body to THQ Kallar Syedan. Abdul Aziz complainant was present in his house at his village Hafyal admittedly 60/65 km away from the place of occurrence who after receiving the information of unfortunate incident came to the hospital. Shoukat Ali PW.9 is resident of village Chak Jalal Din Bismillah Abad, Teshil Rawalpindi, 40/45 kilometers away from village of occurrence. Shoukat Ali and his entire family is also voter member of union council Chak Jalal Din. Muhammad Hafeez and other accused persons were neither present at the place of occurrence nor participated in any manner whatsoever. Hafeez accused admittedly have 3 sons who are disabled since birth they are also deaf and disable in walking. Muhammad Hafeez is not resident of village of occurrence and admittedly he is residing in Rawalpindi with his family. On the fateful day he was present in his house where he received the information of death of Afzaal Hussain at the hands of his own cronies. PWs are closely related inter se, hostile and inimical towards me and others and have suppressed the real facts and falsely implicated myself and others in connivance with the local police." The appellants did not opt to appear under Section 340 (2) Cr.P.C., however produced Dr. Waqar Ahmed (DW.1) and Shaukat Ali (DW.2) in their defence. On the conclusion of trial, the appellants were convicted and sentenced as afore-sated, hence the instant criminal appeals, criminal revision and murder reference. 7. It is contended by learned counsel for the appellants/convicts that though the FIR appears to have been promptly registered but it was made to look so through the tampering of record and indeed the case was registered much after the projected time; that the ocular account in this case was furnished by four witnesses, out of whom PW.9 Shaukat Ali and PW.10 Abdul Aziz miserably failed to prove their acclaimed presence, thus were chance witnesses; that though two other eyewitnesses, namely, Ajmal Maqbool and Nazakat Ali claimed to have received injuries during the incident but it was proved to be doubtful from the medical evidence furnished during trial; that the eyewitness account was strongly belied from the medical evidence furnished by PW.12 Dr.Ahsan Waqas Khan; that though the prosecution came forward with the specific motive but failed to prove it; that the positive report of PFSA according to which pistol recovered from appellant Hafeez Ahmed matched with two crime empties lost its significance as the pistol was recovered without adhering to the provisions of Section 103 Cr.P.C and that though prosecution failed to prove its case against appellant Hafeez Ahmed but still he was awarded conviction. With these submissions, it was urged that the conviction awarded to appellant be set-aside. 8. On the other hand, learned law officer assisted by learned counsel for the complainant came forward with the submissions that the FIR in this case was promptly registered wherein all the necessary details of the incident were provided; that the eyewitnesses besides proving their presence at the spot also furnished confidence inspiring tale of the incident; that two eyewitnesses received injuries during the incident which otherwise are stamps of their truth; that the ocular
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account is in absolute conformity with the medical evidence, thus there is no reason to discard it; that pistol recovered from convict Hafeez matched with two crime empties secured from the spot and it provides corroboration to the case of prosecution; that corroboration can further be sought from the duly proved motive and that since the guilt of appellants was well established during trial, hence the conviction awarded to them calls for no interference. Learned counsel for the complainant while arguing Criminal Appeal No.190 of 2020 and Criminal Revision No.63 of 2020 submitted that the presence and involvement of the acquitted accused in the crime was proved beyond any doubt, thus they are to be appropriately convicted; that the delinquency attributed to convict Waleed was also proved from ocular and medical evidence, thus his sentence is to be enhanced. 9. Arguments heard. Record perused. 10. It divulges from record that on 27.05.2017 complainant Abdul Aziz (PW.10) along with his slain son Muhammad Afzaal went to see one of his relatives Riasat Ali, living in a neighbourhood known as Pindori Chaudhrian. At about 4:00 p.m. both of them came out of the house after attracting to a hue and cry coming from the street. They saw Ajmal Maqbool and Nazakat Ali (PW.11 & PW.13) being beaten by a group of assailants comprising upon appellants/convicts and eight others. In an endeavour to save the two victims from assault, Muhammad Afzaal stepped forward but fell victim to shots fired by Hafeez Ahmed (appellant) from his .30 bore pistol and died after the receipt of injuries on mouth and chest. So far as, Waleed (appellant) is concerned, though he was nominated in the FIR but without attribution of any specific role. Out of the ten assailants so nominated in the crime report, only Hafeez and Waleed returned with the guilty verdict, whereas the rest were acquitted by the trial court against which complainant preferred Criminal Appeal No.190 of 2020. 11. The plain review of FIR (Exh.PA) reveals that it was registered within 03-hours & 20-minutes of the incident on the basis of complaint (Exh.PN) presented before the police. The prompt registration of FIR is essentially a factor to be examined by us as the same was projected by the prosecution as an aspect out-rightly excluding the hypothesis of consultation and concoction. Before inching any further, it seems appropriate to mention here that the vicinity of crime was a place known as Pindori, situated within the territorial jurisdiction of Police Station Kallar Syedan. The father of deceased, namely, Chaudhry Abdul Aziz (PW.10) imparted the tale of incident to Anwar Javed SI (PW.15) through oral statement/Fard Bian (Exh.PN) upon his arrival to THQ Hospital Kallar Syedan at about 7:00 p.m. The afore-mentioned claim of prosecution, if remains unrebutted, it makes the case in hand arising out of promptly lodged FIR. We are not oblivious of the fact that our system of police investigation has taken a nose dive on multiple counts and one out of them is menace of tampering the record through which even the crime reports chalked out with delay are made to look as if spontaneously reported. For achieving such object, generally Registrar No.1 (FIR Register) and Register No.2 (Station Diary) maintained under 22.45 of Police Rules, 1934 are stopped and necessary details are incorporated after afflux of some time. Such misdeeds on occasions remain hidden even during trial but often the circumspective perusal of record lifts veil from the delinquency of the police, giving traces that the crime report was registered much after the canvassed crime. The inquest report which is prepared under 25.35 of Police Rules, 1934 is a document, the careful perusal of which can give a clue about the possibility of the case not having been registered at the time mentioned in Column No.1 of FIR. The inquest report is prepared as part of initial investigation and carries material information about the homicide incident gathered from the witnesses, examination of corpse and inspection of the spot. It would be advantageous to have a look as to how 25.35 of Police Rules, 1934 is structured, thus the foregoing provision is referred hereunder:- "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 Form 25.35 (1) A,B or C
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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." The prescribed format of the inquest report contains 34-columns meant for mentioning various details like the inter se distance of the crime scene and the Police Station, the time of furnishing information of crime to police, the particulars of deceased and the witnesses who identified him, the status of the dead body and the description of injuries, the kind of weapon used for the murder, the articles found near the dead body if it is still placed on the crime scene as well as the brief facts of the incident. The importance of the inquest report can well be gauged from the fact that the details required to be mentioned therein are to be incumbently provided to the medical officer before the autopsy. These requirements are primarily part of the check and balance system devised to oust the possibility of some foul play and aimed at ensuring that statements of witnesses are recorded positively before the postmortem examination. Needless to mention here that if the statements of witnesses are recorded by the police subsequent to the postmortem examination, it gives vent to adjust the ocular account in consonance with the proposed medical evidence. For holding postmortem examination, certain guidelines are given for medical officer which are mentioned in CHAPTER-III titled as MEDICO-LEGAL POST MORTEM EXAMINATION of "A TEXT BOOK OF FORENSIC MEDICINE AND TOXICOLOGY" by DR.S.SIDDIQ HUSSAIN. Instead of mentioning in detail, the guidelines so given, we consider it appropriate to have resort to brevity and mention some of them which are as under:- Postmortem examination should only be undertaken when there is a written order either from Superintendent of Police, or District Magistrate usually from Prosecuting Inspector (for Superintendent of Police.) Read carefully, police report, before starting, i.e. appearance and situation of body, cause of death, statements of witnesses, alleged weapon, etc. Time of receipt of police papers should be entered on the register. It should be thorough and complete. All the three cavities of the body, i.e. skull, thorax and abdomen should be opened and examined even if the cause of death has been found in one of them, because you have to state not only the injuries to certain organs, but also to certify that other organs are healthy. It is never too late to make an autopsy, no matter, how far decomposition is advanced, as information may be had from teeth, hair, injuries to bones, as fractures, bullet wounds, etc. and shots may be recovered from inside the body. When the police bring the papers to you, see that following documents are present:- (i) Statement of injuries by the police.
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(ii) Death report on the prescribed form. (iii) Statement of witnesses. (iv) If examined during life, by a doctor, then copy of the medico legal report, operation notes, hospital notes, etc. In the case of a wound by firearm, any bullet or shots recovered from the body should be initialed (if big enough) and handed to the police in a sealed parcel. All the columns of the prescribed postmortem report should be filled. Postmortem examination should be done as soon as possible after the receipt of police papers to avoid trouble and inconvenience to the relatives of he dead person." (emphasis provided) The medical officer is required to sign each page of the inquest report as token of its receipt before the commencement of postmortem examination. Needless to mention here that the requirements so mentioned above are primarily focused at ensuring that before the commencement of autopsy statements of eyewitnesses are on file, the kind of weapon used in the crime and locales of injuries inflicted by accused have been conveyed to police so as to exclude the possibility of subsequent tampering. While reverting back to the record of case in hand, it is observed that none of the four pages of inquest report (Exh.PV) carries the signatures of the doctor. We are astounded to observe that though according to prosecution case the application for postmortem examination (Exh.PU) was statedly presented before the medical officer on 27.05.2017 but it was signed four days thereafter on 31.05.2017. Vividly, the shortcomings so mentioned above give a clue that the inquest report (Exh.PV) and application for autopsy (Exh.PU) were not handed over to the medical officer prior to the postmortem examination. The defence counsel realizing the importance of these inconsistencies cross-examined Dr.Ahsan Waqas Khan Niazi (PW.12) but no acceptable legal explanation is found forthcoming. On account of the immense importance of these anomalies, we are persuaded to refer hereunder relevant excerpt from the cross-examination of Dr.Ahsan Waqas Khan (PW.12):- "According to postmortem report, post-mortem report and police papers were handed over to police as mentioned on the last page and last column of the post-mortem report. In inquest report Exh.PV does not bear my endorsement, signature or stamp. The application for post-mortem Exh.PU was endorsed by me on 31.5.2017." The absence of the signatures on the pages of inquest report (Exh.PV) and upon the application (Exh.PU) has derived us to nourish doubt about the acclaimed time of registration of FIR rather it gives reflection that both the documents were…
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