Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
2018 Y L R 599 [Lahore] Before Sayyed Mazahar Ali Akbar Naqvi and Mujahid Mustaqeem Ahmed, JJ ZULFIQAR and others---Appellants Versus The STATE and others---Respondents Criminal Appeals Nos.24-J, 25-J and Murder Reference No.198 of 2012, heard on 13th April, 2017. (a) Penal Code (XLV of 1860)--- ----Ss. 302(b), 394 & 34---Qatl-i-amd, voluntarily causing hurt in committing robbery, common intention---Appreciation of evidence---Benefit of doubt---Prosecution case was that on 13.3.2007 at about 8.45 p.m. the accused persons assaulted on brother of complainant, made firing upon him and ran away---Brother of complainant was shifted to hospital in injured condition but died of the injuries in hospital after two days on 15.3.2007---Motive for the occurrence allegedly was that deceased was creating hindrance in the nefarious activities of accused persons---Ocular account was furnished by brother/complainant and cousin of the deceased---Complainant had deposed in the line of version narrated in the FIR, however, he made certain improvements---Complainant, in order to justify his presence at the place of occurrence, claimed that he, along with witness had visited the shop of the deceased---Complainant could not state any specific purpose for visiting deceased at such time of night---Complainant had stated in the FIR that he along with witness had seen the occurrence, however, at trial he claimed that he along with two witnesses had witnessed the occurrence---Complainant did not divulge as to why he could not mention the name of second witness in the FIR---Name of second witness was also not mentioned as eye-witness in the inquest report prepared by the Investigator---Circumstances showed that second witness was introduced as eye-witness at much belated stage---Record transpired that signature of second eye-witness were available on the recovery memo but a careful comparison of his signatures on said document would show that they did not match with his signature on rest of the documents---Said circumstances indicated that presence of second witness was fabricated---Complainant had not claimed in the FIR that the deceased had caught two of the accused or grappled with them but in trial, he improved his version by deposing that after receiving fire shots the deceased in injured condition caught hold of two accused and during grappling shirt of one accused was removed, whereas jacket of the other accused was taken off and that the assailants ran away from the spot in the car even leaving behind slippers by one of them---Said articles were handed over to the Investigating Officer by the complainant---FIR nowhere mentioned that during grappling, certain articles of the accused persons including a pistol had dropped---Complainant did not claim in trial that pistol of any accused was dropped during grappling---Complainant kept the said articles with him for more than twenty three hours and did not mention the same in his statement, which shook credibility of the complainant---None of the witnesses at the time of identification parade, stated about the accused from whom pistol was dropped, the shirt and jacket were removed or who had left the slippers at the spot---Said omission on the part of the witnesses was a strong circumstance to hold that even the recovery of pistol, shirt, jacket and slippers were nothing but a sham attempt to fabricate evidence to strengthen the prosecution case---Complainant had claimed that he remained busy in medication of the injured and could not get the case registered but at the same time, he admitted during his cross-examination that police had arrived at the hospital but he did not try to lodge a crime report---Said indifferent and unusual conduct of the complainant created doubt and dent in his version---Allegedly, four persons from complainant party were present at the spot and assailants were three in number---Complainant had alleged that two of the assailants had been caught hold of by the deceased---Despite that facts, eye-witnesses, who were real brother and cousin of the deceased remained standing as silent spectators and even when occurrence was over, did not report to Rescue No. 1122 or Rescue No.15---Complainant did not describe in the FIR any source of light inspite of the fact that it was a night time occurrence---Complainant, however, had deposed that witnesses had witnessed the occurrence in the light of bulb installed at the shop, which was not secured by the Investigating Officer---Record showed that deceased and the assailants were previously known to each other and even the deceased used to stop them from doing nefarious activities---Deceased remained conscious for many hours in the hospital while in injured condition but he had not disclosed the names of real culprits, meaning thereby, that the injured could not identify the perpetrators of offence---Circumstances established that prosecution case was not free from doubt, benefit of which would go in favour of accused persons as a matter of right and not of grace---Accused persons were acquitted in circumstances by setting aside convictions and sentences recorded by the Trial Court. Tariq Pervez v. The State 1995 SCMR 1345 and Muhammad Akram v. The State 2009 SCMR 230 rel. (b) Penal Code (XLV of 1860)--- ----Ss. 302(b), 394 & 34---Qatl-i-amd, voluntarily causing hurt in committing robbery, common intention---Appreciation of evidence---Recovery of weapon of offence and positive Forensic Report---Effect---Allegedly, an empty of 30-bore was recovered from the spot along with pistol 30-bore which were handed over to the Investigator by the complainant---Report of Forensic Science Laboratory showed that crime empty matched with the pistol---Both the crime empty and the pistol were sent together to the laboratory for analysis as such, positive report of the laboratory lost its intrinsic value particularly when prosecution could not pin point as to which of the accused was armed with pistol at the scene of occurrence---Another pistol was recovered at the instance of the accused but the same had not matched with the crime empty recovered from the spot, as such said pistol could not be connected with the commission of crime. (c) Penal Code (XLV of 1860)--- ----Ss. 302(b), 394 & 34---Qatl-i-amd, voluntarily causing hurt in committing robbery, common intention---Appreciation of evidence---Identification parade---Scope---Prosecution had claimed that accused persons were correctly identified by the witnesses with their specific role in identification parade---Record showed that identification parade was not conducted immediately on the arrest of the accused persons---High Court observed that in such state of affairs, it was not believable that the witnesses, who had seen fleeting glimpses of accused persons, would remember their features for such long period, particularly when their features and contours had not been mentioned in the FIR or in their statements recorded under S. 161, Cr.P.C.---Accused persons were kept in police station and that the witnesses had visited the police station during investigation; possibility that police had got accused persons identified by witnesses prior to identification parade could not be ruled out, which created doubt, benefit of which would resolve in favour of accused persons---Accused persons were acquitted by setting aside convictions and sentences recorded by the Trial Court. Lal Pasand v. The State 1971 SCMR 569; Ghulam Hussain and others v. The State 2005 YLR 405 and Muhammad Yaqoob and another v. The State 1989 PCr.LJ 2227 rel. Shahid Zaheer Syed and Mrs. Nighat Saeed Mughal for Appellants. Mian Muhammad Awais Mazhar, Deputy Prosecutor General for Respondent. Muhammad Ayub Tahir Joyia for the Complainant. Date of hearing: 13th April, 2017. JUDGMENT MUJAHID MUSTAQEEM AHMED, J.---Qasim Ali, Zulfiqar son of Khan Muhammad and Talib Hussain, appellants along with Amir and Zulfiqar Ali son of Gulzar, co-accused were tried by the learned Sessions Judge, Faisalabad in case FIR No. 256 dated 14.3.2007 under sections 302/394/34, P.P.C. registered at Police Station Chak Jhumra, Dist. Faisalabad. At the conclusion of trial, the learned trial Court vide judgment dated 21.12.2011 convicted the appellants under sections 302(b)/34 P.P.C. and awarded Death penalty to Qasim Ali and Zulfiqar son of Khan Muhammad, appellants while Talib Hussain, appellant was sentenced to suffer imprisonment for life. All the three appellants were also directed to pay compensation of Rs.2,00,000/- each to legal heirs of the deceased or in default thereof to undergo six months S.I. each under section 544-A, Cr.P.C. The appellants were also convicted under section 392/34, P.P.C. and each one of them was sentenced to suffer ten years R.I. with a fine of Rs.1,00,000/- or in default thereof to further undergo six months S.I. each. Zulfiqar son of Gulzar and Amir Ali alias Ehsan co-accused were, however, acquitted. 2. Feeling aggrieved of the above noted conviction and sentences, Zulfiqar son of Khan Muhammad, appellant has approached this Court by way of Cr. Appeal No. 24-J of 2012, whereas Qasim Ali and Talib Hussain, appellants have filed Cr. Appeal No. 25-J of 2012. The learned trial court has also submitted Murder Reference No. 198 of 2012 in terms of section 374 Cr.P.C. seeking confirmation of sentences of death imposed on Qasim Ali and Zulfiqar son of Khan Muhammad, convicts. During pendency of these matters, as pointed out, Talib Hussain, one of the appellants in Cr. Appeal No. 25-J of 2012 has been murdered, therefore, a report was sought by this Court in this regard which has been received from the S.H.O. of Police Station Langrana, Distt. Chiniot verifying the factum of his murder. This being the position, Cr. Appeal No. 25-J of 2012 to the extent of Talib Hussain, appellant abates under Section 431 Cr.P.C. With regard to rest of the appellants, these matters being interconnected are hereby decided together through this single judgment. 3. Occurrence in the present case took place on 13.3.2007 at 8.45 p.m. in front of tea-shop installed at Jhumra Road within the vicinity of Chak No. 191/R.B. of Police Station Chak Jhumra in which Zahoor Ahmad, a brother of Muhammad Yar, complainant (PW.12) sustained injuries at the hands of mischief mongers and was taken to Allied Hospital, Faisalabad where he was admitted and the doctor observed three (two firearm and a blunt) injuries on his person. After obtaining M.L.R. Muhammad Yar, complainant reported the matter to police on 14.3.2007 at 7.20 p.m. by submitting complaint (Ex. PD) on the basis of which FIR (Ex.PD/1) was registered at the police station under section 324/34, P.P.C. Zahoor Ahmad, succumbed to the injuries on 15.3.2007 and offence under Section 324 P.P.C. was substituted with the provisions of sections 302/394/34, P.P.C. read with Section 13 of the Arms Ordinance, 1965. 4. Narrating the facts in the statement (Ex.PD) the complainant stated that his brother Zahoor Ahmad had established a tea-shop at main road of Chak Jhumra adjacent the outer wall of Friends Fabrica Weaving Factory where he along with Muhammad Nawaz (given up) went to see his said brother at 8.45 p.m. on 13.3.2007. It was alleged that at about 8.45 p.m. a car (registration number or other particulars not given) stopped near the tea-shop and three unknown persons of youth age, two armed with .30 bore pistols and the third one having 12 bore gun, alighted from it. They declared that they had come to settle score with Zahoor Ahmad for creating hindrance in their (nefarious) activities and ordered him to hand over whatever he had with him. The story further proceeds that on resistance by Zahoor Ahmad, the assailants armed with pistols fired single shot each hitting Zahoor Ahmad on left side of his chest and lower left side of abdomen. On receiving injuries Zahoor Ahmad fell down upon which the third one holding gun gave a butt blow hitting on his left buttock. The complainant claimed that due to fear of life he and other P.Ws. did not step forward as they had been threatened by the assailants not to come nearer. After the occurrence the marauders went towards Faisalabad in their car. The injured was taken to Allied Hospital, Faisalabad by the complainant and P.Ws. where he was admitted and given medical treatment. 5. On 13.3.2007 Dr. Ghulam Qadir, PW.3 medically examined Zahoor Ahmad, injured and found the following injuries: 1. A firearm wound of entry 3 x 2 cm x depth not probed on front of left lower chest. Omentum was protruding out from the wound. Area of blackening was present around the wound. Corresponding holes and blackening present on clothes. 2. A firearm wound of entry cm x cm x DNP on front of left mid abdomen over left mid clavicle line about 12 cm left lateral to umbilicus with blackening and collar of abrasion present around the wound. Corresponding holes and blackening present on clothes. 3. A lacerated wound 1 cm x 1 cm x DNP on left buttock. Zahoor Ahmad, while admitted in the hospital, died of the injuries on 15.3.2007 and Dr. Liaqat Ali, PW.9 on same day performed autopsy on the dead body and found as many as 9 injuries out of which injuries Nos. 1 to 3 were as under: 1. A firearm entry wound 5 cm x 1 cm by margins black with one stich in, on inner side of the bone, on front of left chest 6 cm below left nipple. 2. A firearm entry wound 3 cm x 2 cm with black margins along with two loose stitches, at left sub costal region middle part. 3. A lacerated wound 1 cm x 1 cm by skin deep on back and outer side of left buttock upper part. (Rest of injuries were surgical wounds, hence need not to reproduce here.) All the injuries were ante mortem. Injuries Nos.1 and 2 were caused by firearm weapon while injury No. 3 was caused by blunt means. Probable time that elapsed between injuries and death was within 24 to 36 hours and between death and post mortem was within 8 to 12 hours. The doctor opined that death had occurred due to cardio pulmonary arrest due to haemorrhage and shock caused by injuries Nos. 1 and 2 which were sufficient to cause death in ordinary course of nature. 6. Muhammad Akram, Sub-Inspector had initially carried out investigation of this case. He, however, expired before commencement of trial of this case and at trial investigation conducted by him was proved by Liaqat Ali, Sub-Inspector (PW.16) who had been working with him. The record depicts that after registration of case Muhammad Akram, S.I./investigator visited the spot, prepared rough site plan and collected blood stained earth from the place of occurrence vide memo Ex.PB. The complainant also produced before him articles which the deceased had snatched from the accused during grappling at the time of occurrence comprising .30 bore pistol, an empty of .30 bore, shirt, jacket and slippers (P7, P8, P9 and P10/1-2) which he took into possession vide memo Ex.PT. He had also inspected the dead body and prepared injuries statement and inquest report Exs.PK and PL respectively. On 21.6.2007 he apprehended Qasim Ali, appellant under Section 54 Cr.P.C. and lodged him in jail for the purposes of identification parade which was conducted in jail premises on 7.7.2007 under the supervision of Mr. Muhammad Kazim Awan, learned Special Judicial Magistrate (PW.10). He also recovered a .30 bore pistol (P.13) with three live bullets (P.14/1-3) at the instance of Qasim Ali, appellant which he took into possession vide recovery memo Ex.P.W. The investigation was also partially conducted by Ghulam Sarwar, Sub-Inspector PW.15. On 3.5.2008 he arrested Zulfiqar, appellant from court premises and sent him to judicial lock up for identification parade. On 8.5.2008 identification parade of Zulfiqar appellant was conducted in jail under the supervision of P.W.10. 7. After completion of investigation, the appellants along with their co-accused were challaned to Court to face trial. 8. At commencement of the trial, charge was framed against the accused persons to which they denied and claimed trial. In order to prove charge against the accused persons, the prosecution produced as many as 16 PWs. out of which medical evidence was provided by PWs. 3 and 9; ocular account was provided by PWs. 12 and 13 whereas the investigation was proved by PWs. 15 and 16. Proceedings of identification parade with regard to the appellants were proved by PW.10. At the close of prosecution evidence the appellants were examined under section 342, Cr.P.C. They denied and dismissed each piece of prosecution evidence and claimed innocence being involved falsely by the police in connivance with the complainant. They however, neither entered the witness box under section 340(2), Cr.P.C. nor produced evidence in defence. At the conclusion of trial, learned trial Court convicted and sentenced the appellants as noted above. 9. By opening his arguments, learned counsel for the appellants contends that there is delay of more than 23 hours in lodging the FIR for which no reasonable explanation has been given by the complainant. He next argues that presence of eye-witnesses at the spot is unnatural one and they were chance witnesses as such they cannot be relied upon to record conviction and punishment in a case on capital charge without corroboration from independent source which is lacking in the present case. Further argues that present occurrence having been committed at night by unknown persons whose features and contour had not been mentioned in the FIR great caution had to be exercised while connecting the appellants with an offence entailing capital punishment but the evidence provided by the prosecution in this respect is very poor and against the actuality which was not confidence inspiring. Learned counsel also contends that there are material contradictions between the statements of the eye-witnesses. Learned counsel maintains that the complainant made dishonest improvements at trial and tried to bridge up the flaws by making such improvements. He stated in the FIR that he along with Muhammad Nawaz P.W. was present at the place of occurrence at the relevant time but later on introduced one Muhammad Riaz PW. 13 to have also witnessed the occurrence but there is no plausible explanation as to why his name was not incorporated in the FIR. Further submits that in the FIR the complainant did not mention that certain articles of the accused were left at the spot while grappling with the deceased and such improvements were sufficient to discard the oral testimony of the witness being not credible and all these things reflect that it was an unwitnessed night time occurrence and presence of the complainant and the eye-witness was manoeuvred. He also argues that the identification parade qua both the appellants is sham, fake and not in accordance with law. It is further added that recovery of .30 bore pistol at the instance of Qasim Ali, appellant is inconsequential as the crime empty produced by the complainant allegedly collected from the spot had already matched with the .30 bore pistol taken into possession from the spot by the complainant and later on handed over to the investigator and finally that the prosecution has miserably failed to prove its case and the appellants deserve to be acquitted. 10. Conversely, learned Law Officer assisted by learned counsel for the complainant defended the impugned conviction and sentences by arguing that presence of the complainant and the witnesses at the spot was fully established inasmuch as soon after the occurrence the complainant himself along with the eye-witnesses took the deceased to the hospital in injured condition. Learned Law Officer further contends that the appellants were not previously known to the complainant party and there was no previous enmity or animosity between the parties to falsely implicate the appellants leaving behind real culprits. Learned counsel further contends that the complainant had stated in the FIR that he along with Muhammad Nawaz, P.W. had visited the tea-shop of the deceased. He had never claimed that Muhammad Riaz, P.W. had also accompanied them to the said shop rather it was case of the prosecution that occurrence was also witnessed by Muhammad Riaz PW. who happened to pass by the place of occurrence at the relevant time and in any case even producing Muhammad Riaz, P.W. at trial and leaving Muhammad Nawaz, P.W. makes no difference as both of them had seen the occurrence and in any case he had got recorded supplementary statement on the same day in which he stated that Riaz had also seen the occurrence. Learned Law Officer heavily relied on identification parades conducted in this case by saying that two identification parades on different dates were conducted and the supervisory officer/Magistrate fully observed legal formalities and the appellants were correctly identified by the witnesses with their specific roles as such it was a fool proof case and the prosecution has fully proved the case against the appellants. Learned counsel submits that the appellants had committed brutal murder of an innocent person as such they do not deserve any leniency even in the matter of sentence. 11. Learned counsel for the parties have been heard at length and record gone through with their assistance. 12. The prosecution case mainly rests upon ocular account provided by Muhammad Yar, complainant and Muhammad Riaz, PWs. 12 and 13 who are real brother and cousin of the deceased respectively and the identification parade proved by Mr. Muhammad Kazim Awan, Magistrate coupled with recoveries of weapon of offence at the instance of Qasim Ali, appellant. 13. The complainant entered the witness box as P.W. 12 and deposed in the line of version narrated in the FIR. However, he made certain improvements which would be taken care of in the later part of this judgment. The complainant deposed at trial that on the fateful date and time he along with Muhammad Nawaz, (given up) was present at the tea-shop of the deceased when a car came from Jhumra-Faisalabad Road and stopped in front of tea-shop of the deceased. Qasim Ali and Zulfiqar, appellants both armed with .30 bore pistols and Talib Hussain (appellant since murdered) armed with .12 bore gun alighted from the car and raised lalkara to the deceased to teach him a lesson for creating hindrance in their activities. Thereafter, Zahoor Ahmad resisted when Qasim, appellant fired with his pistol hitting Zahoor on left side of his chest. Then Zulfiqar, appellant fired shot with his pistol which landed on left lower part of his abdomen. Zahoor Ahmad caught hold of both the said accused as a result of which shirt of one accused and jacket of other were removed. Slippers of an accused were also left at the spot. Talib Hussain accused inflicted butt blow of his gun at Zahoor Ahmad which hit his left buttock. The accused persons threatened that if anybody came near he would face the same consequences. He, Muhammad Riaz and Muhammad Nawaz, PWs. saw the occurrence in the light of electric bulb. The accused made good their escape while sitting in the car. He further deposed that he got recorded supplementary statement before the investigating officer on 14.3.2007 that Riaz son of Sarang had also witnessed the occurrence. He claimed that he handed over pistol 30 bore, one crime empty of 30 bore, one shirt of accused, one jacket of accused and pair of "chappal" to the investigating officer. He also deposed that he along with other eye-witnesses joined identification parade and identified the accused/appellants with their respective roles. 14. The prosecution gave up Muhammad Nawaz and instead produced Muhammad Riaz at trial as P.W. 13 who tried to depose in line with the version of the complainant. 15. Since main crux of arguments of learned counsel for the appellants was that it was a night time occurrence which had not been seen by any one and the eye-witnesses had been later on manoeuvred, we examine and analyse the evidence in the light of arguments made by learned counsel for the parties. 16. In order to justify his presence at the place of occurrence, the complainant claimed that he along with Muhammad Nawaz had visited at the shop to see Zahoor Ahmad. He, however, could not state any specific purpose for visiting Zahoor Ahmad at such time of night. Although no hard and fast rule can be framed about human behaviour but in the normal course of events it does not appeal to mind that the complainant and Muhammad Nawaz, P.W. would visit the shop of Zahoor Ahmad at such night time without any specific purpose in spite of the fact that he might be available to the complainant and the P.Ws. after/within one hour or so at his residence in the village. 17. In the FIR the complainant stated that he along with Muhammad Nawaz, had witnessed the occurrence. However, at trial he claimed that he along with Muhammad Nawaz and Muhammad Riaz PWs had witnessed the occurrence. The complainant did not…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.