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Petitioner: The State VS Respondent: Muhammad Hanif
Court Name: Lahore High Court Judge(s): Raja Shahid Mehmood Abbasi, Sadiq Mahmud Khurram Title: The State vs Muhammad Hanif Case No.:(1) Murder Reference No.82 of 2015 (2) Criminal Appeal No. 280-J of 2019
JUDGMENT
Reported As: 2021 LHC 386 Result: Appeal allowed Judgment JUDGMENT SADIQ MAHMUD KHURRAM, J. Muhammad Hanif son of Noor Muhammad (convict) was tried by the learned Additional Sessions Judge, Burewala along with his co-accused namely Manzoor Ahmad, Abdul Manaf, Muhammad Azam, Ijaz and Allah Ditta (all since acquitted) in the case FIR No. 13 of 2012 dated 10.01.2012 registered at Police Station Saddar Burewala, District Vehari in respect of offences under sections 302, 148, 149 PPC for committing the Qatl-i-Amd of Bashir Ahmad son of Allah Daad and Bashiran Bibi wife of Zafar (deceased) . The learned trial court vide judgment dated 30.09.2015 convicted Muhammad Hanif son of Noor Muhammad (convict) and sentenced him as infra: Muhammad Hanif son of Noor Muhammad: Death under section 302 (b) PPC as Tazir for committing Qatl-i-Amd of Bashir Ahmad son of Allah Daad (deceased) and directed to pay Rs.2,00,000/- as compensation under the section 544-A, Cr.P.C. to the legal heirs of the deceased; in case of default thereof, the convict was further directed to undergo simple imprisonment for six months. The convict was ordered to be hanged by his neck till dead. Manzoor Ahmad, Abdul Manaf, Muhammad Azam, Ijaz and Allah Ditta, the co-accused of the convict were, however acquitted by the learned trial court. 2. Feeling aggrieved, Muhammad Hanif son of Noor Muhammad (convict) lodged the Criminal Appeal No.280-J of 2019 through jail assailing his conviction and sentence. The learned trial court submitted Murder Reference No.82 of 2015 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Muhammad Hanif son of Noor Muhammad. The complainant of the case filed Criminal Appeal No.703 of 2015 against the acquittal of the accused namely Manzoor Ahmad, Abdul Manaf, Muhammad Azam, Ijaz and Allah Ditta, and Muhammad Hanif son of Noor Muhammad (convict) with regard to the Qatl-i-Amd of Bashiran
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Bibi wife of Zafar (deceased). We intend to dispose of the Criminal Appeal No.280-J of 2019, Criminal Appeal No.703 of 2015 and the Murder Reference No.82 of 2015 through this single judgment. 3. Precisely , the facts of the prosecution case, as brought on record through the statement of Muhammad Hanif son of Allah Daad (PW -4) ,the complainant of the case, are as under: - "On 10-1-2012 I alongwith Bashir and Nazir and Bashir Ahmad son of Lal Din came to Burewala City for an urgent piece of work. When we reached Burewala by bus from Khatchi Pakki Bashir Ahmad received a telephonic call from Muhammad Hanif son of Noor Muhammad. Hanif asked Bashir Ahmad that I have discussed some thing urgent who may come immediately at my home situated in Chak No.505/E.B Basti Reema. Bashir told us about the above said telephonic call and he proposed that we all four should go to Basti Reema. We reached near petrol pump at Chak No.505/E.B road. We were settling the amount with rickshaw driver . We alighted at Rajbah situated at some distance ahead Chak No.505/E.B. It was 01:00 p.m when we alighted from rickshaw . Bashir asked us to stay over there and he will be back soon after hearing Hanif. He had hardly covered a few paces then Bashiran Bibi met him there. He began to talk each other . Alongwith Rajbah there was sugar cane crop cultivated in 5/10 Marlas. Hanif armed with Carbine, Ijaz armed with carbine. Allah Ditta armed with dagger , Manzoor armed with hatchet, Munaf armed with hatchet and Azam armed with sickle. Hanif fired with his weapon which landed on the right flank of deceased Bashir . Ijaz fired with his carbine which landed on the right leg of Bashir deceased. Muhammad Hanif fired repeatedly which landed on the back side of Bashir deceased below right shoulder . Bashir while he was turning back Azam accused caught hold of him and he (deceased) fell down. Allah Ditta accused caused dagger blow on the head of Bashir deceased. Manzoor accused caused injury on the head of Bashir deceased with hatchet. Munaf accused caused two injuries on the head of deceased Bashir with hatchet. Hanif and Ijaz accused persons fired with their respective weapons which hit on different parts of Bashiran Bibi deceased. Allah Ditta accused threw Bashiran Bibi down on the ground and Azam accused inflicted a sickle blow which landed on the belly of Bashiran Bibi deceased. After the occurrence accused persons fled away from the place of occurrence with their respective weapons. The motive behind the occurrence is that accused persons suspected that Bashir Ahmad deceased had illicit liaison with Mst. Bashiran Bibi. Due to this reason they committed brutal murder of Bashir Ahmad and Mst. Bashiran Bibi deceased. After the occurrence we checked the bodies of Bashir and Mst. Bashiran Bibi they were no more, on the way to hospital police office r met me I narrated him whole occurrenc e. He wrote down my statement which is ExP-D and my signature at the bottom of statement is ExP-D/1. After words I made a written application to the SHO for nomination of unknown accused persons which is ExP-E and at the bottom of application my thumb impressions as well as signatures are ExP-E/1." 4. After the formal investigation of the case, the report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial Court, wherein the appellant namely Muhammad Hanif son of Noor Muhammad and his co-accused namely Manzoor Ahmad, Abdul Manaf, Muhammad Azam, Ijaz and Allah Ditta (all since acquitted) were sent to face trial. The learned trial court framed the charge against the accused on 12.04.2012, to which the accused pleaded not guilty and claimed trial. 5. The prosecution in order to prove its case got as many as ten witnesses examined. Muhammad Hanif son of Allah Daad (PW-4) and Bashir Ahmad son of Lal Din (PW-5) gave evidence regarding the ocular account. Maqsood Ahmad, Patwari (PW-1) prepared the scaled site plan of the place of occurrence. Muhammad Shafique 512/C (PW- 2) stated that on 12.02.2012 he was handed over two sealed parcels said to contain blood stained earth and one sealed parcel said to contain empties of 12-bore for their onward transmission to the relevant laboratories for analysis and he delivered the same at the said laboratories intact. Muhammad Hussain 454/C (PW-3) stated that on 10.01.2012 he escorted the dead bodies of the deceased Bashir Ahmad son of Allah Daad and Bashiran Bibi wife of Zafar to the hospital for their postmortem examinations and also received the last worn clothes of the deceased from the medical officers. Muhammad Aslam 347/HC (PW-6) stated on 10.01.2012 he recorded the formal FIR (Exh.PP) and on the same day the investigating officer of the case handed over to him three sealed parcels said to contain blood stained earth and empties which on 12.02.2012 he handed over to Muhammad Shafique 512/C (PW-2) for their onward transmission to the relevant laboratories for analysis. Zafar Iqbal, S.I. (PW-
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9) investigated the case from 10.01.2012 till 16.02.2012, arrested the appellant and narrated the facts of the investigation conducted in his statement before the learned trial court. 6. The prosecution also got Dr. Muhammad Yaqoob Kamal (PW-8) examined, who on 10.01.2012 was posted as Medical Officer at THQ Hospital Burewala and on the same day at about 1.30 p.m examined Bashir Ahmad son of Allah Daad (then injured later deceased) and observed as under:- "Injury No.1 A fire arm lacerated wound 3 x 1.5 cm into going deep accompanied by multiple small 'fire arm lacerated wounds each measuring .5 x .5 cm into deep going around the wound on lower and front of right thigh, margins inverted, blackening present. It is entry wound, corresponding holes present in the clothes. Injury No.2 A multiple fire arm lacerated wound each measuring .7 x .7 cm into going deep in an area of 5 x 5 cm. on the right of the abdomen margins inverted, blacke ning present. All entry wounds. Correspo nding holes present on Sweter and Qameez. Injury No.3. A fire arm lacerated wound 6 x 6 cm into going deep on the back and middle of right chest 8 cm away from the midline. Margins everted, no blackening. It is exit of injury No.2. corresponding holes present. Injury No.4 An incised wound 4 x .5 cm into scalp deep on the back of head. Injury No.5. An incised wound 3 x .5 cm into scalp deep on the top and right of head. Injury No.6. An incised wound 2x.5 cm into scalp deep on the top and right of head. Injury No.7. An incised wound 2 x 5 cm into scalp deep on the top and left side of head." Dr. Muhammad Yaqoob Kamal (PW-8) also conducted the post mortem examination of the dead body of the deceased Bashir Ahmad son of Allah Daad on 11.01.2012 and observed the same injuries as mentioned by him in the Medico Legal Examination Certificate (Exh. PS) and further opined as under:- "After performing postmortem of dead body I am of the opinion that death occurred due to hemorrhagic shock caused by injury No.5,6 and 7. Injury No.5,6 & 7 are sufficient to cause death in an ordinary course of nature. All injuries were ante mortem in nature. Probable time between injury and death was 30 to 60 minutes. And probable time between death and postmortem was within 20 to 22 hours." The prosecution also got Dr. Sadia Aslam (PW-10) examined who on 11.01.2012 was posted as WMO at THQ, Hospital Burewala where Dr.Tayyaba (since untraceable) was also posted. Dr. Sadia Aslam (PW-10) stated that she was acquainted with the handwriting of Dr.Tayyaba (since untraceable) and the postmortem examination report (Exh.PT) had been prepared by Dr.Tayya ba (since untraceable). According to the postmortem examination report (Exh.PT), Dr.Tayyaba (since untraceable ) conducted the postmortem examination of Bashiran Bibi wife of Zafar (deceased) and observed as under:- "INJUR Y NO.1-A. An incised wound 8 cm x 4 cm into going deep on left side of abdomen 2 cm on left and above umbilicus. INJUR Y NO.2. A firearm lacerated wound 1.5 cm x 1.5 cm into going deep belong right nipple. (entry wound). margins were inverted and blackening was present. Few pellets .3cm x .3 cm x going deep around the injury . INJUR Y NO.3. A firearm lacerated wound 3 cm x 4 cm x going deep with everted margins 3 cm on left side of right nipple. (Exit wound). Multiple pellets (12) .3x .3cm X skin deep in an area of 12 cm x 10 cm around right breast. Pellets removed and handed over to the police. Corresponding holes were present on the clothes. REMARKS.
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After performing postmortem of dead body she was of the opinion that death occurred due to hemorrhagic shock as a result of injury No.1 by harp edged weapon, which was sufficient to cause death in an ordinary course of nature. All injuries were ante mortem in nature. Probable time elapsed between injury and death was 10 minutes. And probable time between death and postmortem was within 24 hours." 7. On 30.10.2014, the learned ADPP gave up prosecution witness namely Nazir Ahmad as being unnecessary and on 13.01.2015 the learned ADPP gave up prosecution witness namely Ghulam Dastgir Shah as being unnecessary . On 11.09.2015, the learned ADPP closed the prosecution evidence after tendering in evidence the report of the Chemical Examiner for the Punjab Lahore (Exh. PU) regarding the blood-stained earth, the report of the Chemical Examiner for the Punjab Lahore (Exh. PV) regarding the blood-stained earth, the report of Serologist (Exh.PW) and the report of Punjab Forensic Science Agency , Lahore (Exh. PX) regarding the comparison of the Carbine and the empties. 8. After the closure of prosecution evidence, the learned trial court examined the appellant namely Muhammad Hanif son of Noor Muhammad under section 342 Cr.P.C. and in answer to the question why this case against you and why the PWs have deposed against you, he replied that he was innocent and had been falsely involved in the case. The appellant namely Muhammad Hanif son of Noor Muhammad opted not to get himself examined under section 340(2) of the Cr.P.C, however got Zafar Iqbal (DW-1) and Muhammad Nawaz (DW-2) examined in his defence. 9. On the conclusion of the trial, the learned Additional Sessions, Burewala convicted and sentenced the appellant as referred to above. 10. The contention of the learned counsel for the appellant precisely is that whole case is fabricated and false. The learned counsel for the appellant submitt ed that the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence. The learned counsel for the appellant further contended that the statements of prosecution witnesses were not worthy of any reliance. The learned counsel for the appellant finally submitte d that the prosecution has totally failed to prove the case against the appellant beyond the shadow of doubt. 11. On the other hand, the learned Deputy Prosecutor General contended that the prosecution has proved its case beyond shadow of doubt by producing independent witnesses. The learned Deputy Prosecutor General further argued that as a result of the aggression of the appellant the deceased lost their lives. The learned Deputy Prosecutor General further argued that the motive of the occurrence as proved also corroborated the statements of the eyewitnesses. The learned Deputy Prosecutor General contended that there was no occasion for the prosecution witnesses, who were related to the deceased namely Bashir Ahmad son of Allah Daad, to substitute the real offender with the innocent in this case. Lastly , the learned Deputy Prosecutor General prayed for the rejection of appeal. 12. We have heard the learned counsel for the appellant, the learned Deputy Prosecutor General and with their assistance carefully perused the record and evidence recorded during the trial. 13. The whole prosecution case revolves around the statements of Muhammad Hanif son of Allah Daad (PW-4) and Bashir Ahmad son of Lal Din (PW-5). The relationship of the said witnesses with the deceased namely Bashir Ahmad son of Allah Daad is on record. Bashir Ahmad son of Allah Daad, deceased , was the brother of Muhammad Hanif son of Allah Daad (PW-4) and a very close relative of Bashir Ahmad son of Lal Din (PW-5). Muhammad Hanif son of Allah Daad (PW-4) and Bashir Ahmad son of Lal Din (PW-5) were admittedly not the residents of the place of occurrence. According to Zafar Iqbal, SI ( PW-9), the Investigating Officer of the case, the witnesses namely Muhammad Hanif son of Allah Daad (PW-4) and Bashir Ahmad son of Lal Din (PW-5) had their residences at the distance of about 35/40 kilometres from the place of occurrence. Zafar Iqbal, SI (PW-9), the Investigating Officer of the case, during cross-examination stated as under:- "The distance between place of occurrence and residents of the complainant and the PWs is 35/40 K.M." We have also perused the scaled site plan of the place of occurrence (Exh.P A) as prepared by Maqsood Ahmad, Patwari (PW-1) and the rough site plan of the place of occurrence (Exh.PT) as prepared by Zafar Iqbal, SI (PW-9) and find that neither any house nor any shop nor any temporary place of residence belonging to Muhammad Hanif
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son of Allah Daad (PW-4) and Bashir Ahmad son of Lal Din (PW-5) is marked in the same. It is an admitted fact that none of the prosecution witnesses namely Muhammad Hanif son of Allah Daad (PW-4) and Bashir Ahmad son of Lal Din (PW-5) had their residences or their houses or any temporary residence near the place of occurrence. In this manner , both the witnesses namely Muhammad Hanif son of Allah Daad (PW-4) and Bashir Ahmad son of Lal Din (PW-5) can be termed as "chance witnesses" . Both the witnesses namely Muhammad Hanif son of Allah Daad (PW-4) and Bashir Ahmad son of Lal Din (PW-5), being not the residents of the place of occurrence, were under a bounden duty to prove, through evidence , the reason for their chance presence at the place of occurrence, at the time of occurrence. Both the witnesses namely Muhammad Hanif son of Allah Daad (PW-4) and Bashir Ahmad son of Lal Din (PW-5) failed to prove the reason for them to be present at the place of occurrence, a place which was at a distance of as much as about 40 kilometres from their residences. Both the witnesses namely Muhammad Hanif son of Allah Daad (PW-4) and Bashir Ahmad son of Lal Din (PW-5) stated that they had gone to the city of Burewala and from their they accompani ed the deceased to the place of occurrence. We have also noticed that according to Muhammad Hanif son of Allah Daad (PW-4) he was the resident of Mauza Raheem Shah and according to Bashir Ahmad son of Lal Din (PW-5), he was the resident of Mauza Saldera. According to these witnesses the distance between the said two places (Mauza Raheem Shah and Mauza Saldera) was about 5 kilometers. It is not mentioned as to why the witnesses accompanied each other for proceeding to the city of Burewala when they were not even neighbours and also had no previous knowledge of the plans of each other regarding proceeding to the city of Burewala. To put the matter in furtherdoubt, Bashir Ahmad son of Lal Din (PW- 5), claimed that he reached at the house of Muhammad Hanif son of Allah Daad (PW-4) on the day of occurrence only as a chance. Muhammad Hanif son of Allah Daad (PW-4) claimed that they had gone to the city of Burewala for an urgent piece of work, however did not explain the nature of said work or the fact whether the said work was ever done. Zafar Iqbal, SI (PW-9), the Investigating Officer of the case, during the investigation of the case never visited the city of Burewala so as to verify the claim of the prosecution witnesses that prior to the occurrence they had gone to the city of Burewala for the purpose of some work of urgent nature. According to both the witnesses namely Muhammad Hanif son of Allah Daad (PW-4) and Bashir Ahmad son of Lal Din (PW-5) they were present in the city of Burewala when Bashir Ahmad son of Allah Daad (deceased) received a call on his mobile phone device allegedly made by the appellant asking him to come to his house situated in Chak No. 505/EB, Basti Reema. According to both the witnesses namely Muhammad Hanif son of Allah Daad (PW-4) and Bashir Ahmad son of Lal Din (PW-5) they proceeded from the city of Burewala to the place of occurrence on a Rickshaw , however during the course of investigation, the driver of said Rickshaw was not produced before the Investigating Officer to prove this stance of the witnesses. Muhammad Hanif son of Allah Daad (PW-4) stated that he had never earlier visited the place of occurrence and it was only on the day of occurrence that he went there alongwith his deceased brother after his brother had received a phone call. During the investigation of the case, the mobile phone device under the use of Bashir Ahmad son of Allah Daad (deceased) and on which he had allegedly received the call from the appellant was not taken into possession by the Investigating Officer of the case nor produced by the witnesses. Even before the learned trial court no such mobile phone device on which Bashir Ahmad son of Allah Daad (deceased) had received the call was produced. Similarly , the medical officer who examined Bashir Ahmad son of Allah Daad (deceased) when he was injured and who also conducted the post mortem examination of the dead body of the deceased when he had died , did not find any such mobile device. The Investigating Officer of the case, also did not find any such mobile device at the place of occurrence. Even the Call Data Record (CDR) of the said mobile phone device under the use of Bashir Ahmad son of Allah Daad (deceased) was not collected and neither the same was produced before the learned trial court. Bashir Ahmad son of Lal Din (PW-5) during cross- examination admitted as under:- "Police did not taken (sic) into possession the cell phone of Bashir Ahmad deceased." The failure of the prosecution to produce the mobile phone device under the use of Bashir Ahmad son of Allah Daad (deceased) has repercussions resulting in the failure of the prosecution case. The very inception of the prosecution case is put in doubt. We have also noted that the claim of the prosecution witnesses that Bashir Ahmed son of Allah Dad (deceased) asked them to stay whereas he alone proceeded towards the house of the
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appellant after their arrival at Chak No.505/EB is also not believable. Furthermore, the claim of the prosecution witnesses that instead of proceeding to the house of the appellant, Bashir Ahmed son of Allah Dad (deceased) started talking with Bashiran Bibi (deceased) till the time the occurrence took place also falls within the realm of unbelievable and absurd. In this manner , the prosecution witnesses namely Muhammad Hanif son of Allah Daad (PW-4) and Bashir Ahmad son of Lal Din (PW-5) failed miserably to establish the reason for their presence at the place of occurrence at the time of occurrence. This Court has also noted that both the witnesses namely Muhammad Hanif son of Allah Daad (PW-4) and Bashir Ahmad son of Lal Din (PW-5) claimed that after the occurrence, Muhammad Hanif son of Allah Daad (PW-4) held his brother Bashir Ahmad (deceased) in his lap and admitted that his clothes were stained with blood. Muhammad Hanif son of Allah Daad (PW-4) during cross- examination stated as under:- "It is correct that when I hold the body of deceased my clothes smeared with blood , however I did not produce my said clothes to the I.O during investigation." Zafar Iqbal, SI (PW-9), the Investigating Officer of the case, did not take any such blood-stained clothes of Muhammad Hanif son of Allah Daad (PW-4) in possession during the investigation of the case. Zafar Iqbal, SI (PW- 09), the Investigating Officer of the case, who otherwise showed extraordinary interest in the case, did not take the clothes of Muhammad Hanif son of Allah Daad (PW-4) which were stained with blood, into possession and if these were sent to the Punjab Forensic Science Agency , Lahore for examination and grouping with that of the blood- stained clothes of the deceased, the same would have provided the strongest corroboration to the testimony of the two eye witnesses namely Muhammad Hanif son of Allah Daad (PW-4) and Bashir Ahmad son of Lal Din (PW-5). This omission strikes at the roots of the case of the prosecution and lays bare the untruthful and false claim of the said witnesses to have been present at the place of occurrence, at the time of occurrence. Both these witnesses were under a duty to provide a convincing explanation, appealing to a prudent mind, of their presence at the crime spot otherwise their testimony has to be declared questionable and unacceptabl e. Guidance is sought from the principle enunciated by the august Supreme Court of Pakistan in the case of Mst. SUGHRA BEGUM and another versus QAISER PERVEZ and others ( 2015 SCMR 1 142) wherein it has been held as under:- "20. Both the eye-witnesses admitted that their clothes were stained with the blood of the deceased while lifting and handling him but the investigating officer , otherwise showing extraordinary interest in the case, did not take the same into possession because if these were sent to the Chemical Examiner for examination and grouping with that of the blood stained clothes of the deceased, the same would have provided strongest corroboration to the testimony of the two eye-witnesses. This omission strikes at the roots of the case of the prosecution and bespeaks volumes about the dishonest and false claim of the said witnesses." The august Supreme Court of Pakistan in the case of Mst. MIR ZALAI versus GHAZI KHAN and others (2020 SCMR 319 ) has held as under:- "Both the eye-witnesses produced by the prosecution had claimed that while handling Afsar Khan deceased their clothes had been smeared with the blood of the deceased but admittedly no such blood-stained clothes of the said eye-witnesses had been secured or produced". The august Supreme Court of Pakistan in the case of NADEEM alias KALA versus The State and others (2018 SCMR 153 ) has held as under:- "For the following reasons the prosecution case against the appellant is doubtful in nature:- (a) ....... (b) Presence of both the witnesses of ocular account i.e. Tariq Mehmood complainant (PW.8) and Tahir Mehmood (PW.9) at the place of occurrence is also not free from doubts. During cross-examination the complainant stated that Maqsood Ahmad (deceased) in injure d condition was shifted to Civil Hospital on a carry van but he could not disclose the registration number of the van or name of the driver of vehicle. He also deposed during his cross- examination that his…
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