Full Judgment Text & Judicial Ruling

2017 P Cr. L J Note 152 [Lahore] Before Aalia Neelum and Sardar Muhammad Sarfraz Dogar, JJ MUHAMMAD USMAN and another---Appellants Versus The STATE and others---Respondents Criminal Appeals Nos. 2331, 2459 of 2010 and Murder Reference No.527 of 2010, heard on 23rd September, 2015. Penal Code (XLV of 1860)--- ----Ss. 302, 109, 148 & 149---Qatl-i-amd; abetment; rioting, armed with deadly weapon; common object---Appreciation of evidence---Benefit of doubt---Delay of five days, inordinate and unexplained---Recovery of crime weapon held to be useless in absence of empties---False implication, plea of--- FIR recorded at a different time than as alleged---Site plans were silent about material points---Material witnesses/best evidence not produced---Blood trails not noticed by Investigating Officer---Accused were alleged to have murdered brother of complainant by causing firearms injuries due to some previous enmity---Trial Court, having convicted accused persons, sentenced them to death; while the co-accused were acquitted---Complainant had not filed any Rapt regarding the occurrence---Complainant and eye-witnesses both could not explain as to why they had not reported the incident to police for five days, which raised the presumption that said period had been utilized to concoct a story to falsely implicate the accused introducing false witnesses---Involvement of accused in the present case was, therefore, result of deliberation and consultation---Said inordinate delay having created serious doubt regarding veracity of the case, conviction was not safe to be based thereon---FIR appeared to have been lodged subsequent to the time at which the same as purported to have been recorded---Complainant had got the complaint prepared by prosecution witness at his house, and not at the police station, which created considerable doubt about correctness of the evidence of the complainant---Eye-witnesses had not explained reason of their presence at the place of occurrence---Neither the shopkeeper, in whose shop the deceased was alleged to have fallen into after getting the injuries and whose shop had also been hit with fire shots by the accused, nor any other shopkeeper, had been produced as witness by prosecution---Complainant had alleged that the deceased after receiving arm injuries ran towards, and fell down in the shop; whereas doctor had deposed that if someone had received fire arm injuries on his head, he would fall on ground as result thereof, which was not the case of prosecution---Place, from where the bloodstained earth was collected, had not been shown in the site plans---No trail of blood could have been noticed by Investigating Officer, as the incident had been reported with delay of five days; however, blood trail could be noticed in the shop, which could be secured to corroborate the ocular account---Complainant had alleged to have been sitting at a particular place along with the deceased, while the deceased was shot, but the site plans were silent about position of the deceased---None of the eye-witnesses sitting along with the deceased had received a single injury or scratch on their persons---All injuries on body of the deceased were result of straight fires, thus, the same could not be caused in sitting position---Complainant, improving his statement, had deposed that they were sitting near each other, but fire hit the deceased while he was standing---Complainant had made belated attempt to improve his testimony to bring the same in line with the medical evidence---Many omissions and contradictions existed in evidence of prosecution witnesses affecting the entire fabric of the prosecution case---Prosecution had withheld best evidence available with them and non-production of material witnesses caused serious doubt, as the non-production suggested that they would not support the prosecution case---Occurrence had not taken place in the mode and manner as alleged by prosecution---Recovery of weapon of the offence was useless for two reason: firstly, neither any crime empties had been recovered from the crime scene, nor the weapons had been sent to Forensic Science Laboratory for obtaining expert opinion; secondly, a different weapon than the one alleged had been recovered from one of the accused---Motive set up by prosecution had not been established through evidence---Prosecution had failed to prove the case beyond shadow of reasonable doubt---High Court, extending benefit of doubt, acquitted all accused---Appeal was allowed accordingly. [Paras. 13, 14, 15, 16, 17, 18, 19 & 20 of the judgment] Akhter Ali and others v. The State 2008 SCMR 6 and Muhammad Akram v. The State 2009 SCMR 230 rel. Azam Nazir Tarar for Appellant (in Criminal Appeal No. 2331 of 2010). Falak Sher Nagra for Appellant (in Criminal Appeal No.2459 of 2010). Falak Sher Nagra for the Complainant (in Criminal Appeal No.2331 of 2010). Humayoun Aslam, Deputy Prosecutor General for the State. Date of hearing: 23rd September, 2015. JUDGMENT AALIA NEELUM, J.---Muhammad Usman son of Faizul-Hassan, Caste Jappa, resident of Chak No.125/JB, Tehsil and District, Jhang (Crl. Appeal No.2331 of 2010) along with Imran-ul-Hassan (since acquitted), Ghulam Shabbir (since acquitted), Zahoor Ahmad (since acquitted), Faiz-ul-Hassan and Manzoor Ahmad (since acquitted) being involved in case FIR No.905 dated 08.12.2007, offences under sections 302, 109, 148, 149, P.P.C., registered at Police Station, Saddar Chiniot and were tried by Mr. Arshad Hussain Bhutta, learned Additional Sessions Judge, Gujranwala. The learned trial court seized with the matter in terms of judgment dated 18.09.2010 convicted the appellant under section 302(b), P.P.C., and sentenced to death and to pay a sum of Rs.4,00,000/-as compensation to the legal heirs of the deceased and in default whereof to further undergo simple imprisonment for the period of six months. 2. Feeling aggrieved by the judgment of the learned trial court, Muhammad Usman appellant has assailed his conviction through filing Crl. Appeal No.2331 of 2010. The learned trial court forwarded Murder Reference No.527 of 2010 for confirmation of death sentence inflicted upon the convict. Whereas Muhammad Yousaf son of Akbar Ali, complainant/appellant feeling aggrieved by the same judgment of the learned trial court, has preferred Criminal Appeal No.2459 of 2010 against the acquittal of respondents/accused, namely (1) Imran-ul-Hassan, (2) Ghulam Shabbir, (3) Faiz-ul-Hassan, (4) Manzoor Ahmad and (5) Zahoor Ahmad. As all the matters are arising out of one and the same judgment of the learned trial court, therefore, these are being disposed of through this consolidated judgment. 3. Precisely the facts leading to the conclusion of all the matters are that in the FIR, (Exh.PB/1) lodged on the complaint (Exh.PB) of Muhammad Yousaf son of Akbar Ali (PW-2) on 08.12.2007 is that, on 04.12.2007 at about 1-1/2 p.m. (noon), he (the complainant) along with his brother Muhammad Younas (the deceased) and Hafeez Ullah (PW-given up) were sitting on bajri/granite near main chowk of Chak No.125/JB and were having a talk qua themselves. Suddenly, accused persons (1) Muhammad Usman, (2) Muhammad Imran, (3) Ghulam Shabbir, all armed with repeater .12 bore (4) Zaheer armed with rifle and (5) Hasnain Ali armed with pistol .30-bore emerged there from two sides of chowk while raising lalkaras. The accused-Muhammad Usman maintained that Younas be eliminated and had made fire with his repeater .12-bore which landed near the right eye of Younas, Muhammad Imran fired with his repeater .12-bore which landed on the right side of head of Younas, Ghulam Shabbir fired with his repeater which landed on the right knee of Younas whereas Zahoor (since acquitted) and Hasnain (since acquitted) were indulged in aerial firing and created harassment. Brother of the complainant on receiving injuries rushed towards shop of Mumtaz Hussain (not produced) just to save his life and he fell down inside the shop. The accused persons fired upon the shop which hit the shutter, walls and other goods present in the shop and created terror. Accused persons also threatened that if anyone came ahead, he will also be eliminated. On hearing hue and cry, Muhammad Yousaf son of Shahamand (PW-3) and Javed Iqbal (PW-given up) reached at the spot and witnessed the alleged occurrence. Accused persons thereafter fled away from the place of alleged occurrence. The motive behind the occurrence was that on 02.12.2007 at 7:00 a.m. a brawl took place between Muhammad Younas etc. and accused persons Muhammad Usman etc. and Muhammad Younas had slapped and disgraced Usman etc, whereupon, accused persons threatened to take revenge of the disgrace. Due to this motive, the accused persons on the abetment of Faiz Ahmad and Manzoor, committed this occurrence. 4. On 03.12.2007 at evening time, Akbar Ali (PW-not produced) and Muhammad Nawaz (PW-given up) were sitting in the baithak of Faiz Ahmad to patch up the incident taken place on 02.12.2007 where all the accused were also sitting. When Faiz Ahmad and Manzoor Ahmad, accused stated that after taking revenge of insult, they will think over for patch-up. For taking revenge, the accused persons have fired at brother (Younas) to kill him. Muhammad Younas was taken to the Tehsil Headquarter Hospital, Chiniot and got medical certificate after his medical examination. Due to critical condition, the Doctor referred Younas (then injured) to Allied Hospital, Faisalabad, who at that time, was fighting with life and death. Due to this reason, the FIR was delayed. 5. On the written complaint (Ex.PB) of the complainant-Muhammad Yousaf (PW-2) FIR (Ex.PB/1) was chalked out by Nasrullah, H.C/170 (PW-7). Thereafter investigation was entrusted to Muhammad Arif, S.I. (PW-11), who visited the place of occurrence and prepared un-scaled site plan (Ex.PM), thereafter recorded statements of the prosecution witnesses. On 11.12.2007, the Investigating Officer (PW-11) telephonically received information that injured-Muhammad Younas has expired in the Allied Hospital, Faisalabad. He (PW-12) visited Allied Hospital, Faisalabad and prepared injury statement (Ex.PG) and inquest report (Ex.PH). The dead body of deceased-Muhammad Younas was escorted by Rizwan Ali 829/Constable (PW- 10) for autopsy and after postmortem examination, last worn clothes i.e. shalwar (P-1) and Qameez (P-2) were taken into possession by the Investigating Officer (PW-11) vide recovery memo. Ex.PN and a phial. During investigation, the complainant-Muhammad Yousaf (PW-2) on 12.12.2007 produced last worn clothes of the deceased which were worn by the deceased at the time when he received injuries and same were taken into possession by the Investigating Officer through recovery memo. Ex.PA. Thereafter Riaz Ahmad, Draftsman (PW-9) on 31.12.2007 visited the place of occurrence and took rough notes on the pointing of the PWs. Thereafter on 11.01.2008, the Draftsman (PW-9) prepared scaled site plans (Ex.PL and Ex.L/1) to the Investigating Officer. On 10.02.2008, he arrested the accused-Muhammad Usman and recovered rifle .7 MM (P-6) from his possession and he (PW-11) secured the same through recovery memo Ex.PC while preparing the site plan of place of recovery (Ex.PC/1). He (PW-11) also recorded statements of PWs. On the same day i.e. 10.02.2008 he (PW-11) also arrested the accused-Imran-ul-Hassan (since acquitted) and also recovered repeater .12-bore (P-3) which was taken into possession by him (PW-11) through recovery memo. (Ex.PD) while preparing the site plan of place of recovery (Ex.PD/1). Thereafter investigation came up before Muhammad Yousaf, S.I. (PW-12) on 14.02.2008. On 24.02.2008, during the course of investigation, after disclosure, accused Zahoor Ahmad led to the recovery of .12-bore gun (P-4) and he (PW-12) secured the same through recovery memo. (Ex.PJ) while preparing the site plan of place of recovery (Ex.PJ/1). On the same day i.e. 24.02.2008 after disclosure, accused-Ghulam Shabbir (since acquitted) led to the recovery of repeater .12-bore gun (P-5) and he (PW-12) secured the same through recovery memo. (Ex.PK) while preparing the site plan of place of recovery (Ex.PK/1). He (PW-12) also recorded statements of PWs. 6. Having found the appellant and others guilty, the Investigating Officer prepared report under section 173, Cr.P.C. on 04.03.2008 and sent the same to the court of Session en-routed through Illaqa Magistrate as provided under section 190(2) of Cr.P.C. The accused were charge-sheeted by the learned trial court in terms of order dated 06.09.2008, to which they pleaded not guilty and claimed trial. The prosecution in order to advance its case, produced as many as eighteen (18) prosecution witnesses. Muhammad Yousaf son of Akbar Ali (PW-2) is the complainant of the case, whereas his testimony was supplemented by Muhammad Yousaf son of Shahamand (PW-3). On presentation of written complaint, Nasrullah Khan, H.C (PW-7) had chalked out formal FIR and Riaz Ahmad, Draftsman (PW-9) had prepared scaled site plan. The Investigation in this case was conducted by Muhammad Arif, S.I. (PW-11) and Muhammad Yousaf, S.I. (PW-12). 7. Dr. Ejaz Hussain (PW-6) on 04.12.2007 conducted the Medico-legal Examination of injured-Muhammad Younas and prepared Medico-legal Certificate (Exh.PH). 8. Dr. Muhammad Shareef (PW-5) on 11.12.2007 at 11:45 p.m. (night) had conducted postmortem examination upon the dead body of Muhammad Younas and observed following injuries on his person: INJURIES. A lacerated wound of 1 x 1 cm with inverted edges on the right side of head at a distance of 4 cm from right pinna (entry wound). A lacerated wound of 1/2 x 1/2 cm with inverted edges on the right temple, close to right eye brow (entry wound). A lacerated wound of 1/2 x 1/2 cm partially healed and slightly crusted. On the outer-side of right knee. After conducting the postmortem examination, the doctor rendered the following opinion. OPINION. In his opinion, the cause of death in this case was due to cardiopulmonary arrest as a result of injury No.1 causing brain death. Injury No.1 was sufficient to cause death in any ordinary course of nature. All the injuries were ante-mortem and caused by fire arm. One Metallic foreign body (pellet) recovered from skull sealed and handed over to the above said constable. The probable time between injury and death was seven days and between death and postmortem was five hours. On completion of postmortem, I handed over a well stitched dead body along with carbon copy of post mortem report, signed police papers, one sealed vial and last worn clothes of the deceased to the above said Constable. 9. Learned Deputy District Public Prosecutor gave up PWs Javed Iqbal, Hafeezullah, Muhammad Nawaz son of Muhammad, Muhammad Nawaz 939, Bashir Khan and Mumtaz Hussain on 26.02.2010 being un-necessary and closed the prosecution evidence on 07-07-2010. 10. The accused-appellant was also examined under section 342, Cr.P.C. wherein neither he opted to adduce evidence in his defence nor to appear as his own witness in terms of section 340(2), Cr.P.C. in disproof of the allegations levelled against him in the prosecution evidence. While replying to the question as to why this case against him and why the PWs have deposed against him, the accused-appellant made following deposition: "I am innocent. In fact one Faisal Jappa a close relative of the complainant party was murdered prior to the occurrence and the complainant party had suspicion that I was responsible for his murder being close friend of his enemies. On the day of occurrence I along with Ahmed Sher Jappa and Khalid son of Shera Muslim Sheikh were passing in front of the shop of Mumtaz. Younas since deceased along with Manzoor son of Yousaf and three unknown persons were present in the shop of Mumtaz who made firing upon us and in retaliation, Ahmed Sher Jappa and Khalid son of Shera Muslim Sheikh who were also armed with fire arms fired at Younas since deceased and others. The firing continued for about 45 minutes. Manzoor son of Yousaf also sustained injuries in the occurrence. He was neither cited as a witness nor produced during investigation just to suppress the true facts. It is noteworthy that Younas since deceased was a hardened and desperate criminal having lot of criminal record admitted by the prosecution and Manzoor son of Yousaf was also a hardened criminal who had assaulted upon me, Khalid son of Shera and Ahmed Sher Jappa. During Investigation it was also concluded that the complainant party were aggressors and we were aggressed upon. It is also pertinent to point out that Mumtaz the shop keeper who is close relative of the complainant party did not come forward to support the case of prosecution. I was involved by the complainant party in this case falsely." 11. The learned trial court after evaluating the evidence available on the record and in the light of arguments advanced from both sides, found that the prosecution version proved beyond shadow of reasonable doubt against the accused-appellant, resulting into his conviction in the afore-stated terms. 12. We have heard the arguments advanced by the learned counsel for the parties. We have also gone through the record with able assistance of learned counsel for the appellant and learned counsel for the complainant as well as learned Deputy Prosecutor General. 13. The occurrence in this case as per FIR (Ex.PB/1) took place on 04.12.2007 at 1:30 p.m. (noon) and the incident was reported to the police on 08.12.2007 at 3:15 (noon). The police station Saddar, District, Chiniot was at a distance of 8-1/2 miles from the place of occurrence. The occurrence took place in the main chowk of Chak No.125/JB in front of shop of Mumtaz Hussain. The complainant did not file any rapt regarding the occurrence. There is delay of five (5) days in filing the complaint. From the prosecution evidence, it reveals that the complainant (PW-2) took Muhammad Younas (then injured) to the Civil Hospital, Chiniot. Muhammad Yousaf-complainant (PW-2) deposed that "if one goes from the place of occurrence to Civil Hospital, Chiniot, Tehsil Chowk falls in the way. The police station saddar Chiniot is near the said chowk. None from us alighted from the car to report the matter to the police." Whereas Yousaf son of Shahamand (PW-3) deposed that "I had not accompanied the injured to the hospital." It is the case of the prosecution that the complainant (PW-2) remained busy in the treatment of his injured brother-Muhammad Younas and he (PW-2) could not manage to go to the police station for lodging the FIR. The alleged incident had taken place at the main chowk where prosecution witnesses Hafeezullah, Haq Nawaz (PW-given up) and Muhammad Yousaf (PW-3) were stated to be present but no one had reported the incident to the police, which had taken place. Yousaf son of Shahamand (PW-3) deposed during cross-examination that "I had not accompanied the injured to the hospital. There were some PCOs in chak No.125/JB the place of occurrence. I had not informed the police through telephone." On the other hand, the complainant (PW-2) deposed during cross-examination that "the car was arranged through telephonic call. Telephonic call was made by Haq Nawaz. The car was owned by his friend Syed by Caste." But they had not informed to the local police about the occurrence, it is established beyond doubts that the prosecution witnesses hold mobile phone but did not inform the police about the occurrence. In this regard, no explanation was furnished by the complainant (PW-2), as to what prevented him, from reporting the incident to the police soon after making call for car. In absence of any explanation for delay of five days, it could be presumed that the same was utilized to concoct story, false implication of accused and introducing of false witnesses. Delay in lodging the First Information Report often results in embellishment, which is creation of after-thought. Therefore, involvement of the accused in the case is a result of deliberation and consultation. Thus the inordinate delay of five (5) days in reporting the incident to the police had not been satisfactorily explained by the complainant (PW-2) and prosecution witnesses and this fact creates serious doubt regarding the veracity of the case, and it was not safe to base conviction on it. 14. In the above circumstances, it reveals that the First Information Report was recorded subsequent to the time at which it purported to have been recorded and was the result of deliberation and consultation. The complainant-Muhammad Yousaf (PW-2) deposed during cross-examination that "application Ex.PB was drafted by Ahmed Ali-PW (since dead). The said application was drafted in the house of Ahmed Ali-PW situated in Satellite Town, Chiniot.------Ahmad Ali did not accompany me to the police station for registration of case." It is not disputed that Muhammad Yousaf (the injured) was under treatment at Allied Hospital, Faisalabad whereas the complainant (PW-2) instead of going to Police Station Saddar Chiniot, went to the house of Ahmed Ali and got prepared complaint (Ex.PB) which creates considerable doubt about the correctness of the evidence of the complainant (PW-2). The Hon'ble Supreme Court of Pakistan in the case of "Akhter Ali and others v. The State"(2008 SCMR 6) held that" "It is also an admitted fact that the FIR was lodged by the complainant after considerable delay of 10/11 hours without explaining the said delay. 10/11 hours delay in lodging of FIR provides sufficient time for deliberation and consultation when the complainant had given no explanation for delay in lodging the FIR." 15. The ocular account of this case had been furnished by Muhammad Yousaf-complainant (PW-2) and Muhammad Yousaf son of Shahamand (PW-3). Muhammad Yousaf (PW-3) had deposed that his house was at the distance of two acres from the place of occurrence and the house of Yousaf-complainant is adjacent to his house. Both prosecution witnesses have not stated the reason of their presence at the place of occurrence. Neither Mumtaz Hussain, owner of shop, was produced before the learned trial court, who according to prosecution was present at the spot and in his shop, the deceased-Muhammad Younas fell down and the walls, shutters of the shop and goods of the shop hit with the fires made by the accused ineffectively nor any other shop keeper of the bazaar has been examined. Muhammad Yousaf-complainant (PW-2) deposed that the deceased-Muhammad Younas after receiving first fire arm injury near his right eye, second fire made by Imran hit on the right side of the head and third fire arm injury at the knee of right leg runs towards shop of Mumtaz Hussain and fell down in the shop. Whereas Doctor Muhammad Shareef (PW-5) deposed that if some one received fire arm injuries on his head, he would fell on the ground as a result. But this is not the case of prosecution that Muhammad Younas entered in the shop in an injured condition and the shutters of the shop were closed. On perusal of both un-scaled site plan (Ex.PM) and scaled site plan (Ex.PL), it reveals that the place from where bloodstained earth was collected had not been shown. Riaz Ahmad, Draftsman (PW-9) admitted this fact. The Investigating Officer although deposed that he collected bloodstained earth from point (1). Both site plans were silent about the point where Muhammad Younas falls in the shop in an injured condition. It has come in the evidence that deceased Muhammad Younas after receiving injuries, rushed to the shop of Mumtaz Hussain and fell down in the shop. This statement has not been corroborated by Dr. Muhammad Shareef (PW-5). No trail of blood could have been noticed by the Investigating Officer (PW-11) as incident was reported with delay of five (5) days but blood trail could have been noticed by the Investigating Officer (PW-11) in the shop which could also be secured to corroborate the ocular account. It has come in evidence of the Investigating Officer Muhammad Arif, S.I. (PW-11) that he has not shown in rough site plan whether Muhammad Younas-deceased had sustained injuries while sitting or in standing position, whereas in complaint (Ex.PB), the complainant (PW-2) had mentioned that he (the complainant) along with his brother Muhammad Younas (the deceased) and Hafeezullah (PW-given up) were sitting on bajri/granite when suddenly accused persons (1) Muhammad Usman (2) Muhammad Imran (3) Ghulam Shabbir all armed with repeater .12-bore (4) Zaheer armed with rifle and (5) Hasnain Ali armed with pistol .30-bore emerged therefrom two sides of chowk and Muhammad Usman had made fire with his repeater .12-bore which landed near the right eye of Muhammad Younas, Muhammad Imran fired with his repeater .12-bore which landed on the right side of head of Muhammad Younas, Ghulam Shabbir fired with his repeater which landed on the right knee of Muhammad Younas. The complainant…

Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.

Related Legal Research & Directories

• Browse all judgments from Lahore High Court
• Search Pakistani statutes: Constitution of Pakistan 1973, PPC, CrPC, CPC & Family Laws
• Analyze this case with Al Wakeelo AI Legal Assistant