Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Bagga etc. VS Respondent: State etc
Court Name: Lahore High Court Judge(s): Sadiq Mahmud Khurram, Ali Zia Bajwa Title: Bagga etc. vs State etc. Case No.: Cr1. As. Nos. 441-J & 442-J & C.S.R. No. 3 of 2018 Date of Judgment:2022-01-11 Reported As: PLJ 2023 Cr.C. 94 Result: Appeals allowed
JUDGMENT
JUDGMENT Ali Zia Bajwa, J. Through this single judgment, we intend to decide Crl. Appeal No. 441-J/2018, titled 'Bagga vs. The State', Crl. Appeal No. 442-J/2018, titled 'Manjhi vs. The State', and Capital Sentence Reference No. 03/2018, titled 'The State vs. Bagga and another' as these are arising out of one and the same judgment of the learned trial Court. 2. Bagga son of Younas, caste Kosh, resident of Mouza Daulat Abad, District Rahim Yar Khan (Crl. Appeal No. 441-J/2018) and Manjhi son of Younas, caste Kosh, resident of Mouza Daulat Abad, Tehsil Sadiqabad, District Rahim Yar Khan (Crl. Appeal No. 442- J/2018), appellants were involved in case FIR No. 18/2010, dated 20.04.2010, offences under Sections 302, 324, 353, 337-F(i), 337- F(iii), 337-F(iv), 337-F(vi), 337-L(2), 427, 148, 149, PPC, read with Sections 7(a), 7(c), 7(h) and 21(I) of Anti-Terrorism Act, 1997, registered with Police Station Machka, District Rahim Yar Khan. They were tried by learned Judge Anti-Terrorism Court, Bahawalpur, under the afore-mentioned offences. Learned trial Court seized with the matter vide judgment dated 23.05.2018 convicted and sentenced the appellants in the following terms:- Under Section 302(b)/149, PPC, sentenced to death as Taz'ir with a direction to pay Rs. 5,00,000/-as compensation to legal heirs of the deceased in terms of Section 544-A, Cr.P.C. and in case of default in payment thereof, to undergo S.I. for six months. Under Section 324/149, PPC, sentenced to undergo R.I. for ten years with fine of Rs. 50,000/-, and in case of default in payment thereof, to further undergo Si. for six months. Under Section 148/149, PPC, sentenced to undergo R.I. for three years with fine of Rs. 50,000/-, and in case of default in payment thereof, to further undergo S.I. for six months. Under Section 353/149, PPC, sentenced to undergo R.I. for two years with fine of Rs. 50,000/-, and in case of default in payment thereof, to further undergo Si. for six months. Under Section 427/149, PPC, sentenced to undergo R.I. for two years with fine of Rs. 50,000/-and in case of default in payment thereof, to further undergo S.I. for six months. Under Section 337-F(i)/149, PPC, sentenced to undergo R.I. for one year and to pay Daman of Rs. 50,000/-to injured Mohammad Khalid 4809/C, and till payment of Daman, the convicts were directed to be kept in jail. Under Section 337-F(i)/149, PPC, sentenced to undergo R.I. for one year and to pay Daman of Rs. 50,000/-to injured Pervaiz Iqbal/C, and till payment of Daman, the convicts were directed to be kept in jail. Under Section 337-F(i)/149, PPC, sentenced to undergo R.I. for one year and to pay Daman of Rs. 50,000/-to injured Munawar Hussain/C, and till payment of Daman, the convicts were directed to be kept in jail. Under Section 337-F(i)/149, PPC, sentenced to undergo R.I. for one year and to pay Daman of Rs. 50,000/-to injured Riffat Kiyani/C, and till payment of Daman, the convicts were directed to be kept in jail. Under Section 337-F(i)/149, PPC, sentenced to undergo R.I. for one year and to pay Daman of Rs. 50,000/-to injured Riffat Kiyani/C, and till payment of Daman, the convicts were directed to be kept in jail. Under Section 337-F(i)/149, PPC, sentenced to undergo R.I. for one year and to pay Daman of Rs. 50,000/-to injured Riffat Kiyani/C, and till payment of Daman, the convicts were directed to be kept in jail. Under Section 337-F(iii)/149, ?PC, sentenced to undergo R.I. for three years and to pay Daman of Rs. 1,00,000/-to injured Pervaiz Iqbal/C, and till payment of Daman, the convicts were directed to be kept in jail. Under Section 337-F(iii)/149, PPC, sentenced to undergo R.I. for three years and to pay Daman of Rs. 1,00,000/-to injured Munawar Hussain/C, and till payment of Daman, the convicts were directed to remain in jail.
---
## Page 2
Under Section 337-F(iii)/149, PPC, sentenced to undergo R.I. for three years and to pay Daman of Rs. 1,00,000/-to injured Munawar Hussain/C, and till payment of Daman, the convicts were directed to be kept in jail. Under Section 337-F(iii)/149, PPC, sentenced to undergo R.I. for three years and to pay Daman of Rs. 1,00,000/-to injured Riffat Kiyani/C, and till payment of Daman, the convicts were directed to be kept in jail. Under Section 337-F(iv)/149, PPC, sentenced to undergo R.I. for five years and to pay Daman of Rs. 1,00,000/-to injured Niaz Ali ASI and till payment of Daman, the convicts were directed to be kept in jail. Under Section 337-F(vi)/149, PPC, sentenced to undergo R.I. for seven years and to pay Daman of Rs. 2,00,000/-to injured Niaz Ali ASI and till payment of Daman, the convicts were directed to be kept in jail. Under Section 337-L(2)/149, PPC, sentenced to undergo R.I. for one year and to pay Daman of Rs. 50,000/-to injured Khalid Mehmood/C, and till payment of Daman, the convicts were directed to be kept in jail. Under Section 7(a) of the Anti-Terrorism Act, 1997 read with Section 149, PPC, sentenced to death as Ta'zir with a direction to pay fine of Rs. -2,00,000/, Under Section 7(c) of the Anti-Terrorism Act, 1997 read with Section 149, PPC, sentenced to undergo R.I. for ten years with fine of Rs. 50,000/-, and in case of default in payment thereof, to further undergo S.I. for six months. Under Section 7(h) of the Anti-Terrorism Act, 1997 read with Section 149, PPC, sentenced to undergo R.I. for five years with fine of Rs. 50,000/-, and in case of default in payment thereof, to further undergo S.I. for six months. Sentences of imprisonment awarded to the appellants were directed to run concurrently and to that extent they were extended benefit of Section 382-B of Cr.P.C. Being aggrieved of the judgment passed by the learned trial Court, the appellants have impugned their conviction and sentence through their respective appeals while learned trial Court forwarded Capital Sentence Reference No. 3/2018 as envisaged under Section 374, Cr.P.C. for confirmation or otherwise of sentences of death awarded to the convicts. 3. The prosecution case structured upon the story as narrated in the FIR (Exh.PA) lodged on the complaint (Exh.PA/1) of Muhammad Yousaf, Inspector/SHO (PW-9), is that on 20.04.2010 at 06:00 p.m. an information was passed on regarding presence of proclaimed offenders namely Bagga, Manjhi, Khawaja, Mitha, Khatoor, Zahoor, Adam, Jamal, Haasil, Godha, Malawa and Qutab required in case FIR No. 11/2002, offences under Sections 302, 395, 397, 353, 324, 365, PPC; FIR No. 22/2005, offences under Sections 302, 436, 148, 149, PPC; FIR No. 23/2005, offences under Sections 302, 148, 149, PPC; F.I.R. No. 24/2005, offences under Sections 302, 324, 148, 149, PPC, and F.I.R. No. 35/2009, offences under Sections 302, 324, 148, 149, 201, PPC, at their residence. In pursuance of which two raiding teams, one headed by Tabasum Hussain Virk, Inspector and other headed by ASP/SDPO Circle Sadiqabad were constituted and raid was conducted at the house of accused Bagga son of Younas where accused persons namely Bagga, Manjhi, Khawaja, Godha, Mitha, Khatoor, Zahoor, Adam, Jamal, Haasil, Malawa, Qutab, Eidan, Tarat Janan and Bada while armed with Kalashnikov G-3 and Anti-Aircraft Gun along with 20122 unknown persons were present. On seeing the police party, they while taking positions in the bunkers encircled the police officials and made indiscriminate firing on the APC (armored personnel carrier) due to which Tabbasum Hussain Virk, Inspector was done to death while Niaz Ali, S.I., Amjad Ali 4890/C, Munawar Hussain 603/C, Riffat Kiyani 4673/C and Khalid Mehmood 5544/C along with others sustained injuries. Accused persons also made firing with Anti-Aircraft Gun on other police vehicle due to which Pervaiz Iqbal 601/C and Nazir Ahmad 4609/C sustained injuries. The police vehicles were also damaged as a result of firing. Police party made firing in self- defense due to which accused persons scattered. Out of accused: Janan, Bada and Eiden succumbed to the injuries caused by the firing of their co-accused. The dead bodies of accused Janan and Bada drowned in Sindh River whereas dead body of accused Eidan along with his Kalashnikov was taken into possession. The injured police officials were evacuated and shifted to Sheikh Zayed Hospital, Rahim Yar Khan through ambulance for their medical treatment. Muhammad Yousaf, Inspector (PW-9) drafted the complaint (Exh.PA/1) and sent the same to police station for registration of FIR through Asad Mahmood 1465/C. 4. After registration of the case investigation was entrusted to Mukhtar Ahmed, S.I. (PW-5), who visited the place of occurrence and prepared rough site plan (Exh.PT). On spot inspection, Investigating Officer secured blood-stained soil underneath the dead body of Eiden deceased vide recovery memo. Exh.PU. He took into possession one Kalashnikov (P-4) lying besides the dead body of deceased Eiden along with ten live bullets (P-5/1-10) through recovery memo. Exh.PV. He also secured blood from the APC vehicle through recovery memo. Exh.PX. Thereafter, investigating officer prepared injury statement (Exh.PH) and inquest report (Exh.PJ) of Eiden deceased and handed over his dead body to Noor Muhammad 1264/C for autopsy. He went to the Sheikh Zayed Hospital where he recorded statements of the injured PWs namely Niaz Ali, SI, Pervaiz Iqbal, Khalid Mahmood, Munawar Hussain, Amjad Ali, Mohammad Khalid and Riffat Kiyani constables and prepared their injury statements (Exh.PR/1, Exh.PL/1, Exh.PS/1, Exh.PN/1, Exh.PP/1, Exh.PQ/1 and Exh.PM/1); respectively. Investigating Officer went to the mortuary where he prepared injury statement and inquest report of Tabassum Hussain, Inspector (Exh.PE and (Exh.PF respectively). After post-mortem examination, Medical Officer handed over the Investigating Officer last worn clothes of deceased Tabassum Hussain i.e. Qameez (P-6), belt (P-7), vest (P-8), pent (P-9) and underwear (P-10), which he took into possession through recovery memo. Exh.PY. After post-mortem examination of deceased accused Eiden, Noor Ahmad 1264/C (PW-6), produced last worn clothes i.e. shalwar (P-11) along with a sealed jar before the investigating officer, which he took into possession through recovery memo. Exh,PZ. On 21.04.2010, after obtaining MLCs of injured PWs the same were made part of the police file. On 22.04.2010, he handed over the dead body of accused Eiden to his legal heirs. On 16.08.2010, he recorded supplementary statement of complainant. On 29.09.2010 he obtained non-bailable warrants of arrest of appellants and thereafter proclamations. After completing codal requirements, he submitted the report under section 512 Cr.P.C. On 20.04.2010, Aamer Hayat, Halqa Patwari (PW-2) on the direction of investigating officer and pointing out of PWs prepared scaled site plan (Exh.PB & Exh.PB/1), which was made part of the police file.
---
## Page 3
On 03.05.2016, investigation of this case was entrusted to Jam Munir Hussain, SI (PW-13). On 21.02.2017, he along with other police officials conducted raid at Mouza Daulat Abad, arrested the appellants namely Bagga and Manjhi and recovered Kalashnikovs from their possession, for which separate criminal cases under relevant offence were registered against them. During the course of interrogation on 21.04.2017, in pursuance of disclosure, appellant Bagga led to the recovery of Anti-Aircraft Gun (P-1) which was taken into possession by the investigating officer through recovery memo. Exh.PC. Thereafter Manjhi appellant led to the recovery of stand of Anti-Aircraft Gun (P-2) along with 20 live rounds (P-3/1-20) which were taken into, possession through recovery memo. Exh.PD. Investigating Officer prepared rough site plans of the places of recoveries (Exh.PC/1 and Exh.PD/1 respectively) and also registered separate FIRs regarding the incriminating articles recovered on the pointing out of appellants. Having found the accused persons involved in this case, report under Section 173 Cr.P.C. was prepared against them. 5. After submission of the report under Section 173 Cr.P.C, learned trial Court formally indicted the appellants vide order dated 23.06.2017 to which they pleaded not guilty and claimed trial. Prosecution, in order to establish its case against the appellants, produced as many as thirteen (13) prosecution witnesses. 6. Ocular account in this case was furnished through Muhammad Yousaf, Inspector (PW-9)/complainant, Noor Ahmad 1264/C (PW-6), Niaz Ali, S.I. (PW-7), Munawar Hussain 603/C (PW-11) and Pervaiz Iqbal 601/C (PW-12). Aamer Hayat, Patwari (PW-2) prepared scaled site plan of the place of occurrence. Investigation in this case was conducted by Mukhtar Ahmad, SI (PW-5) and Jam Munir Hussain, SI (PW-13). 7. On 20.04.2010, post-mortem examination over the dead body of deceased Tabbasam Hussain, Inspector was conducted by the Medical Board of Sheikh Zayed Hospital, Rahim Yar Khan and following injuries were observed on his person:, Injury No. 1 A lacerated wound with inverted margins (fire arm entry wound) measuring 1cm x 1cm on right side of neck 04 cm above right clavical. Injury No. 2-A A fire-arm entry wound measuring 1cm x 1cm on lateral aspect of right arm just below deltoid area, Injury No, 2-B A fire arm entry wound measuring 1cm x1cm just 2 cm below injury No. 2-A (on right arm). Injury No. 3-A A fire-arm exit wound measuring 1.5 cm x 1.5 cm on medial aspect of right arm. Injury No. 3-B A fire arm exit wound measuring 2 cm x 1.5 cm medial aspect of right arm 2 cm below injury No. 3-A. Injury No. 4 A fire-arm entry, wound measuring 1 cm x 1 cm on back of right arm near right shoulder joint and was situated 7.5 cm from injury No. 2-A. Injury No, 5 A fire-arm entry wound measuring 1 cm x 1 cm below right ear lobule. The ear lobule was also lacerated. Injury No. 6 A fire-arm entry wound measuring on the mastoid area of head 1 cm x 0.5 cm, 2 cm behind right ear. On deep dissection, injury No. 2-A & B communicate injury No. 3-A & B. On dissection of injury No. 1 the bullet after piercing above right clavical damaged trachea and right carotid sheath and deformed bullet recovered from left side of base of neck on front of left side of chest and was handed over to police. On dissection of injury No. 4 the track of bullets was from injury No. 4 to right side of chest fracturing 4th ribs on right side of front of chest under line, right lung found healthy. After conducting post-mortem examination, following opinion was rendered by the Medical Board:- "After conducting thorough autopsy, the Board was of the unanimous opinion that the cause of death was individually injury No. 1 and all injuries collectively leading to severe hemorrhage hypovalemic shock and chocking and death. All injuries were anti- mortem in nature and caused by fire-arm. Probable time that elapsed between injury and death was within few minutes and between death and postmortem was within 4 to 8 hours approximately." Statements of rest of the prosecution witnesses are formal in nature. 8. After completion of prosecution evidence, statements of the appellants under Section 342, Cr.P.C. were recorded by the learned trial Court. They professed their innocence and pleaded false implication in the case. They did not opt to appear as their own witnesses on oath as provided under Section 340(2), Cr.P.C, however they opted to adduce evidence in their defense. Upon completion of trial, the learned trial Court found case against the appellants to have been proved to the hilt, thus, convicted and sentenced them as mentioned and detailed above. It is also pertinent to mention here that vide the same judgment, Khatoor and Nooru, co-accused were acquitted of the charges. 9. Arguments heard, record perused. 10. Perusal of record available on file reflects that this unfortunate occurrence is result of a raid conducted by the police party in pursuance of receipt of information regarding presence of proclaimed offenders namely Bagga, Manjhi, Khawaja, Mitha, Khatoor, Zahoor, Adam, Jamal, Haasil, Godha, Malawa and Qutab involved in five different criminal cases. The accused persons while using most sophisticated weapons like Kalashnikovs and Anti-Aircraft Gun encircled the police officials and Made indiscriminate firing on them resulting into injuries to Tabussam Hussain Virk, Inspector, Niaz S.I. (PW-7), Munawar Hussain 603/C (PW-11), Pervaiz Iqbal 601/C (PW-12), Khalid Mehmood 5544/C (not produced), Amjad Ali 4890/C (not produced), Muhammad Khalid 4809/C (not produced), Nazir Ahmed 4609/C (not produced) and Riffat Kiyani 4673/C (not produced). Out of them Tabussam Hussain Virk, Inspector subsequently succumbed to the injuries. Three persons from the accused side were also murdered at the hands of their accomplices during cross-firing. However, this Court has to evaluate from the facts and
---
## Page 4
circumstances whether evidence adduced by the prosecution during the course of trial is sufficient to maintain conviction of the appellants. 11. In this case, prosecution version hinges upon ocular account, medical evidence and recoveries allegedly effected on the pointing out of the appellants. OCULAR ACCOUNT 12. As far as ocular account in this case is concerned, the same has been advanced through the statements of Muhammad Yousaf, Inspector/complainant (PW-9), Noor Ahmed 1264/C (PW-6), Niaz Ali, S.I. (PW-7), Munawar Hussain 603/C (PW-11) and Pervaiz Iqbal 601/C (PW-12). According to prosecution version except the complainant and PW-6 rest of the prosecution witnesses received fire-arm injuries during the occurrence and usually statement of an injured witness particularly a police official, who receives injuries during the performance of his official duty, is given extra weightage. However, while going through the record we have observed that eye-witnesses, Noor Ahmed 1264/C (PW.6), Niaz Ali S.I. (PW.7), Munawar Hussain 603/C (PW-11) and Pervaiz Iqbal 601/C (PW-12), while making their statements during the course of trial ascribed generalized role to the appellants, as well as, co-accused namely Khatoor and Nooru (since acquitted). Learned trial Court while rendering the judgment by disbelieving their deposition to the extent of Khatoor and Nooru acquitted them of the charges and no appeal against their acquittal was filed. It is an established proposition of law laid down in catena of decisions[1] of apex Court that where same set of witnesses was disbelieved qua number of accused persons implicated in the ease, it cannot be made foundation of conviction of rest of the accused persons in absence of strong and independent corroboration, which, we are afraid, is conspicuously missing in this case. Reliance can be placed on Altaf Hussain[2] wherein it was pronounced that: "It is well settled by now that if a set of witnesses is disbelieved to the extent of some accused the same cannot be believed to the extent of remaining accused facing the same trial without there being any independent and strong corroboration." This view was further reiterated in Liaqat Ali[3] as infra: "When three co-accused attributed effective firing at the deceased and the injured victims had been acquitted in this case it was incumbent upon the Courts below to look for independent corroboration to the ocular account before convicting and sentencing the present appellants." 13. Adverting to argument that injured witnesses are natural witnesses, having no axe to grind with appellants, should be believed, it goes without saying that testimony of an injured cannot be taken as a gospel truth. It is an established proposition of criminal law that merely injuries on the person of a witness cannot stamp him a truthful and reliable witness. It was observed in Qaiser Mahmood[4] by the prestigious Supreme Court of Pakistan that: "direct evidence furnished even by the injured witnesses, apparently with no axe to grind, can be dismissed, if otherwise found lacking the ring of truth" It was held in Nazir Ahmed[5] while addressing the question of credibility of injured witness by the prestigious Supreme Court of Pakistan as infra: "It is settled law that injuries of P.W. are only indication of his presence at the spot but are not affirmative proof of his credibility and truth." In Amin Ali[6] apex Court of the Country reiterated the view in the following terms: "Certainly, the presence of the injured witnesses cannot be doubted at the place of incident, but the question is as to whether they are truthful witnesses or otherwise, because merely the injuries on the persons of P.Ws. would not stamp them truthful witnesses." In the case of Mehmood Hayat[7]it has been laid down as under:. "merely because the P.Ws. had stamp of firearm injuries on their person was not per so tantamount to a stamp of credence-on their testimony.11 In the case of Mehmood Ahmed[8] it was pronounced as under: "For an injured witness whose presence at the occurrence is not disputed it can safely be concluded that he had witnessed the incident. But the facts he narrates are not to be implicitly accepted merely because he is an injured witness. His testimony is to be tested and appraised on the principles applied for appreciation of any other prosecution witness." Further reliance can be placed on Said Ahmad v. Zammured Hussain (1981 SCMR 795), Muhammad Pervez and others v. The State (2007 SCMR 670), Muhammad Hayat v. State (1996 SCMR 1411), and Mehmood Ahmad v. State (1995 SCMR 127). 14. Watchful analysis of statement of complainant Muhammad Yousaf, Inspector/(PW-9) reflects that during the course of trial, while deposing on oath, he assigned specific role of making firing with Anti-Aircraft Gun, to both the appellants, which caused damage to APC and injuries to Tabassum Hussain Virk Inspector, Niaz Ali SI and other police officials present in that APC. He was duly confronted by the defense side with his complaint Exh.PA/1, where general role of indiscriminate firing was attributed to all the accused nominated therein including Khatoor and Nooru (since acquitted). 15. It is settled that where a witness makes dishonest improvements in his statement before the Court, his testimony is not worthy of reliance in absence of strong and independent corroboration, which is noticeably lacking in the instant case. Aforementioned witness, who made dishonest improvements in his statement while deposing on oath, is not worthy of reliance/credence. It was held in Naveed Asghar[9] after discussing a plethora of judgments[10] of Constitutional Courts as infra: "Deliberate and dishonest improvements made by a witness in his statement to strengthen the prosecution case cast serious doubts on his veracity, and makes him untrustworthy and unreliable. It is quite unsafe to rely on testimony of such witness, even on facts deposed by him other than those improvements unless it receives corroboration from some other independent piece of reliable evidence." Same view was taken in Muhammad Mansha[11] wherein the Honorable Supreme Court of Pakistan held as under:
---
## Page 5
"Once the Court comes to the conclusion that the eye-witnesses had made dishonest improvements in their statements then it is not safe to place reliance on their statements. It is also settled by this Court that whenever a witness made dishonest improvement in his version in order to bring his case in line with the medical evidence or in order to strengthen the prosecution case then his testimony is not worthy of credence. The witnesses in this case have also made dishonest improvement in order to bring the case in line with the medical evidence (as observed by the learned High Court), in that eventuality conviction was not sustainable on the testimony of the said witnesses." Dishonest improvements made by the complainant Muhammad Yousaf inspector (PW.9) cannot be overlooked, which have rendered his testimony extremely untrustworthy. After exhaustive analysis of catena of judgments[12] rendered by the apex Court of this Country, we have no hesitation to hold that deliberate and dishonest improvements while deposing at trial cast serious doubts and suspicion qua the veracity of ocular account. 16. Furthermore, if contents of the crime report are evaluated, it reflects that when the police party conducted raid at the residence of the accused, they took positions in the bunkers. Though learned trial Court wrongly mentioned word 'trenches' but bare reading of the crime report reflects that accused made firing from 'bunkers'. Bunker is a protective embankment covered from top and sides. It does not appeal to reason that the accused persons making firing from it were seen by the police officials. In the light of aforementioned discussion, we are…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.