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Petitioner: Hamza Yaqoob and others VS Respondent: State and another
Court Name: Lahore High Court Judge(s): Raja Shahid Mehmood Abbasi, Ch. Abdul Aziz Title: Hamza Yaqoob and others vs State and another Case No.: Crl. A. Nos. 776 & 956, M.R No. 71 of 2018 Date of Judgment:2022-01-31 Reported As: PLJ 2022 Cr.C. 1603 Result: Appeal dismissed
JUDGMENT
JUDGMENT Ch. Abdul Aziz, J. Hamza Yaqoob and Zeeshan Mehmood alias Shani (appellants) along with two others, namely, Kashif Ansari and Malik Ahmed Shehzad involved in case FIR No. 546/2016 dated 18.10.2016 registered under Sections 302, 396 & 412, PPC at Police Station Taxila were tried by learned Additional Sessions Judge, Taxila. Trial Court vide judgment dated 01.10.2018 while acquitting the afore-said co-accused proceeded to convict and sentence the appellants in the following terms: (1) Hamza Yaqoob (appellant) "(i) Under Section 302 (b) read with Section 34, PPC to suffer death sentence. He was also directed to pay compensation of Rs. 100,000/- to the legal heirs of the deceased as required under Section 544-A, Cr.P.C. and in default whereof to undergo six months S.I. (ii) Under Section 396, PPC to suffer death sentence. He was also directed to pay fine of Rs. 100,000/- and in, default whereof to undergo six months S.I. (iii) Under Section 412, PPC to suffer rigorous imprisonment for 10-years with fine of Rs. 50,000/- and in default whereof to further undergo six month S.I. (2) Zeeshan alias Shani (appellant) (1) Under Section 302(b) read with Section 34, PPC to suffer life imprisonment. He was also directed to pay compensation of Rs. 100,000/- to the legal heirs of the deceased as required under Section 544-A, Cr.P.C. and in default whereof to undergo six months S.I. (ii) Under Section 396, PPC to suffer rigorous imprisonment for 10- years. He was also directed to pay fine of Rs. 50,000/- and in default whereof to undergo six months S.I. (iii) Under Section 412, PPC to suffer rigorous imprisonment for 10-years with fine of Rs. 50,000/- and in default whereof to further undergo six month S.I.
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All the sentences of convicts were ordered to run concurrently and benefit of Section 382-B, Cr.P.C. was also extended to them. Challenging their conviction and sentence Hamza Yaqoob and Zeeshan Mehmood alias Shani (appellants) filed Criminal Appeals Nos. 776 & 956 of 2018 respectively, whereas trial Court sent reference under Section 374, Cr.P.C. which was numbered as Murder Reference No. 71 of 2018 for the confirmation or otherwise of death sentence awarded to Hamza Yaqoob (convict). All these matters are being disposed of through this single judgment. 2. Succinctly stated the case of the prosecution as unveiled by Muhammad Awarish Mehmood Awan (PW.18) in FIR (Exh.PF/2) is to the effect that he along with Haris Munir works at the workshop "Taxila Steel Corporation" owned by his uncle Taimoor; that on 18.10.2016 after working hours, by keeping the cash amount of Rs. 7,50,000/- and accounts register in a grey bag, he along with Haris Munir went to drop Farhad Ali at his house while boarding motorcycle bearing Registration No. RIL- 264 Honda-125; that Haris was sitting behind the complainant, whereas Farhad All was sitting next to him; that at about 7:00 p.m. they reached Mohallah Mashraqiabad and in front of the house of Farhad Ali he stopped the motorcycle where one Zarar Akhtar was already present; that meanwhile two unknown armed accused, one clad in sky colour shalwar qameez and other in black colour shalwar qameez emerged on the scene; that one of the accused on pistol point snatched the bag containing cash and stepped backward; that when Haris Munir was about to deboard from the motorcycle, the other accused clad in black colour shalwar qameez made a pistol shot which landed at the chest of Haris Munir; that both the accused ran way towards the vacant plot; that light of bulb was available at the time of incident in front of house; that Haris Munir succumbed to the injuries on the way to the hospital. 3. Upon the receipt of information about the incident, Israr Hussain SI (PW.20) along with other police officials reached THQ Hospital, Taxila, where Muhammad Awarish Mehmood (PW.18) got recorded his statement (Exh.PF) against unknown accused. He then examined the dead body of Haris Munir Sheikh (deceased), prepared application for autopsy (Exh.PD), inquest report (Exh.PE) and handed over the dead body to Abdul Wajid 1064/C for postmortem examination from THQ Hospital, Taxila. Thereafter, he sent complaint (Exh.PF) to the police station through Waseem Sabir 8674/C after endorsing his proceedings. He also inspected the place of occurrence and secured blood stained earth through memo. Exh.PH. From the spot, he also took into possession one crime empty of pistol .30 bore and Honda-125 (P.15) vide memos. Exh.PJ and Exh.PK, respectively. On 01.11.2016 he recorded the supplementary statement of Muhammad Awarish, who nominated Kashif Ansari, Hamza Yaqoob, Ahmed Shehzad, Ahmed Ali alias Sad= and Zeeshan alias Shani as the culprits of crime. He also collected CDR of certain mobile numbers (P.36) vide memo. Exh.PT. He arrested Hamza Yaqoob, Zeeshan alias Shani and Ahmed Ali on 17.11.2016. He after complying codal formalities got conducted the identification test parade of Hamza, Ahmed Ali alias Saddam and Zeeshan alias Shani accused. On 28.11.2016. Zeeshan alias Shani (appellant) made disclosure and in pursuance thereof Ied to the recovery of currency notes of Rs. 30,000/- (P.21/1-30) & motorcycle (P.22) and these articles were taken into possession vide memo. Exh.PN. On 04.12.2016, Hamza Yaqoob (appellant) made disclosure and got recovered pistol .30 bore (P.23), Rs. 120,000/- and registration book of motorcycle (P.28) which were secured vide memo. Exh.PZ. He recorded statements of witnesses under Section 161, Cr.P.C. and submitted the file to the concerned SHO for submission of report under Section 173, Cr.P.C. 4. Prosecution in order to prove its case against the appellants produced 21-PWs including Dr. Khawar Razzaq (PW.5) who on 18.10.2016 at about 9:30 p.m. conducted autopsy of Muhammad Haris (deceased) and issued PMR No 36/2016 (Exh.PC) as well as its pictorial diagrams (Exh.PC/1 & Exh.PC/2'), Sh. Farhad Ali Taimoor (PW.17) & Muhammad Awarish Mehmood Awan (PW.18) who narrated the ocular account, Israr Hussain SI (PW.20) who is Investigating Officer of the case and
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Zafar Hussain Special Judicial Magistrate PW21 who supervised the identification test parade and issued report (Exh.PCC). The remaining witnesses, more or less, were formal in nature. 5. After conclusion of prosecution evidence, appellants were examined under Section 342, Cr.P.C., who refuted the allegations levelled against them and pleaded their innocence. The appellants did not make statements under Section 340 (2), Cr.P.C., however produced certain documents/audio recordings (Exh.DB, Exh.DC, Exh.DE & Exh.DF) in their defence. On the conclusion of trial, the appellants were convicted and sentenced as afore- sated, hence the instant criminal appeals and murder reference. 6. It is contended on behalf of appellants that the incident occurred in the dark hours of the night and prosecution miserably failed to prove the presence of light at the spot; that the absence of light gains importance when seen in the context that the accused were not previously known to the eye-witnesses; that though later the appellants were identified by the witnesses in identification, proceedings but it loses significance when seen in the backdrop of night time occurrence and absence of light; that the presence of eye-witnesses at the spot remained unproved during trial as both of them failed to produce their blood stained clothes to the police; that even the identification proceedings have no legal significance due to infirmities arising out of record; that the recovery of pistol from Hamza Yaqoob since was affected in violation of Section 103, Cr.P.C. hence has no legal sanctity; that the recovery of cash and registration book was also not witnessed by any resident of the locality thus is to be out-rightly discarded; that admittedly appellant Zeeshan Mehmood was not identified by the two eye-witnesses of the occurrence thus on this score alone his conviction is to be set aside. With these submissions, it was urged that conviction awarded to the appellants be set aside. 7. On the other hand, learned law officer assisted by learned counsel for the complainant came forward with the submissions that the case is arising out of a promptly lodged FIR and this fact alone is sufficient to establish the presence of eye-witnesses at the spot; that the eye-witnesses had no previous enmity with the appellants and even otherwise they were not nominated in the crime report as accused; that the involvement of appellants in the commission of crime is well established from the identification test proceedings in which they were correctly picked up as the culprits 'of crime; that the involvement of appellant Hamza Yaqoob in the commission of crime is further established from the recovery of pistol which matched with the crime empty secured from the spot as well as from the recovery of looted amount and registration book of the motorcycle belonging to one of the eye-witnesses; that the defence version put forth by the appellants is an after- thought story and even otherwise no material in its support was brought on record and that since prosecution successfully proved its case against the appellants, thus the conviction awarded to them calls for no interference. 8. Arguments heard. Record perused. 9. It is discernible from record that the case in hand is arising out of an incident having occurred on 18.10.2016 at about 07:00 p.m. during which one Haris Munir aged about 18-years lost his life after the receipt of a single firearm injury on his chest. The incident occurred in a vicinity known as Mohallah Mashriqiabad situated within the territorial jurisdiction of Police Station Taxila and the law was set into motion through the statement (Ex.PF) of Muhammad Awarish Mehmood (PW.18) made before Israr Hussain S.I. (PW.20) upon his arrival at THQ, Taxila. From the facts canvassed in the crime report (Ex.PF/2) it evinces that Haris Munir (deceased) fell victim to a robbery incident committed by two unknown persons. 10. A wade through the record unfolds that the actual murder incident was witnessed by Sheikh Farhad Ali Taimoor and Muhammad Awarish (PW.17 & 18). At the cost of repetition, it is mentioned that the eye-witnesses had no previous acquaintance with the assailants and accordingly none was named as accused in the case on the first day of incident. Another witness namely Sh. Abdul
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Rauf (PW.16) also appeared before the trial Court and claimed to have seen three persons shortly after the incident while decamping from the spot on a motorcycle. As per prosecution case, the veil was lifted from the identity of the culprits through identification test proceedings conducted on 21.11.2016 under the supervision of Zafar Hussain, Special Judicial Magistrate (PW.21). 11. Before appraising the ocular account, it is considered appropriate by us that the actual murder incident was committed by two persons who during identification test proceedings were identified as Hamza Yaqoob (appellant) and Ahmad Ali (co-convict). So far as Ahmad Ali (appellant in Criminal Appeal No. 703 of 2020) is concerned, he was initially arrested and was jointly indicted along with four other co-accused on 17.03.2017. During trial, Ahmad Ali absconded from the Court premises on 19.07.2017 but was later re-arrested on 28.02.2019. The fate of case was decided in the absence of Ahmad Ali through judgment dated 01.10.2018 which was to the extent of Hamza Yaqoob (appellant), Zeeshan Mehmood (appellant), Kashif (since acquitted) and Ahmad Shahzad (since acquitted). Subsequent thereto, Ahmad All was re-arrested, tried and later convicted through separate judgment dated 22.10.2020 which is assailed by him separately vide Criminal Appeal No. 703 of 2020. While dilating upon the ocular account, we at the very outset are confronted with the question of foremost importance and it pertains to the acclaimed presence of eye-witnesses at the spot. As per record, Haris Munir (deceased) and two eye-witnesses Sh. Farhad Ali and Muhammad Awarish (PW.17 & PW.18) used to work at Taxila Steel Corporation. The incident occurred when all the three after getting free from their work place reached the house of Sh. Farhad Ali (PW.17) while boarding a motorcycle for dropping him. The crime scene is situated almost at the door step of Farhad Ali as is evident from site plan (Ex.PO). The foregoing aspect is sufficient to prove the presence of both the eye-witnesses at the spot. Even otherwise, it is observed by us that the incident occurred at 07:00 p.m., whereas the statement (Ex.PF) of Muhammad Awarish (PW.18) was recorded without any delay in THQ Taxila at about 08:45 p.m. Such prompt reporting of crime, more importantly by describing the assailants as unknown, out-rightly excludes all hypothesis about the absence of eye-witnesses from the spot. Since the incident took place after the dusk, thus we have also pondered upon the presence of light at the spot so as to satisfy ourselves about any chance of mistaken identification. In this regard, it is noticed that the homicide incident took place in a residential locality and at point No. 9 of the site plan (Ex.PO), the presence of electricity bulb is clearly shown. The presence of light at the spot is further substantiated from the deposition of eye- witnesses who specifically mentioned that two electricity bulbs were lit at the eventful time. The purity of the ocular account is further evident from the fact that two eye-witnesses were having no previous enmity with the appellants, thus there is not even a remote possibility of false implication through substitution. Last but not the least, both the eye-witnesses provided confidence inspiring details of the incident including the number of assailants, the time and manner of incident, the description of snatched articles, the mode of shifting the deceased to hospital and the arrival of police at THQ, Taxila. To be precise, the presence of eye-witnesses at the spot is satisfactorily proved by the prosecution. We have intentionally opted to discuss the legal worth of the deposition of Sh. Abdul Rauf (PW.16) in the later part of judgment which otherwise pertains only to Zeeshan Mehmood (appellant). 12. After having formed an opinion favourable to the acclaimed presence of eye-witnesses at the spot, we also scrutinized the evidence of identification test proceedings. According to record, Hamza Yaqoob, Zeeshan Mehmood and Ahmad Ali were arrested on 17.11.2016 and immediately thereafter were lodged in judicial custody for holding of identification test. As per record, the identification proceedings were held without any delay on 21.11.2016 under the supervision of Zafar Hussain, Special Judicial Magistrate (PW.21). During these proceedings the two eye-witnesses, namely, Sh. Farhad Ali and Muhammad Awarish (PW.17 & PW.18) identified Hamza Yaqoob
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(appellant) and Ahmad Ali (co-convict) and that too in reference to their specific roles. Keeping in view the fact that instant judgment only pertains to the Murder Reference No. 71 of 2018, Criminal Appeal No. 776 of 2018' filed by Hamza Yaqoob (appellant) and Criminal Appeal No. 956 of 2018 filed by Zeeshan Mehmood alias Shani (appellant), hence we consider it appropriate to restrict ourselves only to their extent. It is being reiterated that Ahmad Ali was convicted through a separate judgment and has filed a separate appeal thus its fate is obviously to be decided by us through a separate judgment. To be precise, during identification proceedings, Hamza Yaqoob was burdened by the afore-mentioned two eye-witnesses with the allegation of inflicting fatal shot upon the chest of Hans Munir. It is observed by us that Hamza Yaqoob was subjected to identification proceedings in consonance with the instructions laid down in Rules and Orders of the Lahore High Court, Lahore, Chapter 11, Part-C. We feel a pressing need to mention here that both the eye-witnesses namely Sh. Farhad Ali and Muhammad Awarish (PW.17 & PW.18) were cross- examined at length by the defence but nothing could be extracted which may cast doubt about the legal worth and credibility of the identification proceedings. Similar situation arises from the perusal of proceedings of Zafar Hussain, Judicial Magistrate (PW.21) and from his deposition recorded during trial. The solitary objection raised by the learned counsel for Hamza Yaqoob (appellant) about the identification proceedings is to the effect that it was jointly held in respect of Hamza Yaqoob, Ahmad Ali and Zeeshan Mehmood. In this regard, we consider it appropriate to mention here that the Hon'ble Supreme Court of Pakistan in the case of Kanwar Anwaar Ali (PLD 2019 Supreme Court 488), dilated in-depth upon the test identification parade and about the joint identification proceedings held as under: "If there are more accused persons than one who have to be subjected to test identification, then the rule of prudence laid down by the Superior Courts is that separate identification parades should ordinarily be held in respect of each accused person". (emphasis supplied) From the above extract, it evinces that the joint identification is not prohibited by Rules & Orders of the Lahore High Court, Lahore, Chapter 11, Part-C but identification proceedings are desired to be conducted separately in pursuance of rule of prudence. Secondly, the Hon'ble Apex Court in the above para used the word "ordinarily" and the expression can be taken in suggestive form and not as mandatory in nature. In our humble view, if identification 'test proceedings are otherwise impeccable in nature, these cannot be discarded solely on account of having been jointly conducted in respect of more than one accused, more importantly when each suspect is placed in a separate row and mixed with required quantity of dummies. The judgment in Kanwar Anwaar Ali's case (supra) was authored by the two members Bench of the Hon'ble Supreme Court of Pakistan and the guidelines so given came under discussion of a three members Bench of Hon'ble Apex Court in the case of Muhammad Siddique and others u. The State (2020 SCMR 342) and expounded upon through the following observations: "Castigating severely the evidence of test identification parade, the learned counsel relied upon the guidelines laid down in the case of Kanwar Anwaar Ali (PLD 2019 Supreme Court 488) to urge exclusion thereof. The supra case, indeed a fine piece of juridical literature, nevertheless, does not extend much help to the convicts; it mainly addressed laconic approach adopted by a Magistrate in holding the test identification parade in the said case while highlighting general principles of law on the subject." In accordance with the observations of Hon'ble Supreme Court of Pakistan in the case of Muhammad Siddique (ibid), we are of the view that evidence of identification test proceedings cannot be discarded solely because these were held jointly in respect of three suspects/ convicts along with required number of dummies. 13. The ocular account is found by us to be amply supported from the medical evidence furnished by Dr. Khawar Razzaq (PW.5) who received the corpse of Haris Munir at about 08:00 p.m. and
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conducted the autopsy at about 09:30 p.m. Inevitably, the postmortem examination was conducted without efflux of any uncalled for delay. On one hand such prompt autopsy indicates and reflects positively upon the acclaimed presence of eye-witnesses and on the other hand supports the ocular account as the solitary firearm injury observed by the doctor coincides with the locale described by the eye-witnesses. Even the duration between death and postmortem observed by the medical officer is in consonance with the time of incident narrated by the two eye-witnesses. 14. Though we have formed a view that ocular account is flawless and narrated by natural witnesses having no vengeance against Hamza Yaqoob but still as an abundant caution further scrutinized the record to look for some independent corroboration. This was the stance of both the eye-witnesses that during incident Hamza Yaqoob and Ahmad Ali snatched Rs. 7,50,000/-, registration book of motorcycle RIL-264, accounts register and CNIC of Farhad Ali (PW.17). During investigation Hamza Yaqoob (appellant) made a disclosure and led to the recovery of partial snatched amount of Rs. 1,20,000/- and the registration book of motorcycle RIL-264 (P.28) on 04.12.2016 through recovery memo Ex.PR. These recovery proceedings were witnessed by Sheikh Taimoor Anjum (PW.12) and he narrated flawless details about them. Needless to mention here that recovery of articles from Hamza Yaqoob, snatched during the crime reflects strongly upon his guilt, more so when he miserably failed to put forth any acceptable explanation in this regard. Similarly, on 04.12.2016, Hamza Yaqoob (appellant) again led to the recovery of .30 bore pistol (P.23) and that too in pursuance of his disclosure through recovery memo Ex.PQ. The importance and relevancy of the recovered pistol (P.23) can well be gauged from the fact that according to PFSA report (Ex.PEE) it was found wedded with the solitary crime empty secured through memo Ex.PJ from the crime scene. During examination under Section 342, Cr.P.C., Hamza Yaqoob (appellant) was specifically confronted with the afore-mentioned recoveries but he miserably failed to put forth any explanation so as to dislodge this part of prosecution case. These recoveries are called in question by the learned counsel for the appellant, solely on the ground that the same were affected in violation of Section 103, Cr.P.C. as no witness from the vicinity was associated during recovery proceedings by the police. Suffice it to say in this regard that above-mentioned articles were recovered upon the disclosure of Hamza Yaqoob (appellant), thus were admissible under Article 40 of Qanun-e-Shahadat Order, 1984. In this regard, reference, can be made to the case reported as Hidayatullah and 7 others v. The State and others (1994 PCr.LJ 20) wherein the Hon'ble Supreme Appellate Court of Pakistan held as under: "The condition precedent for applicability of Article 40 is that there must be discovery of fact, in consequence of some information received from accused, and at that time the accused be in custody of a police officer. In this case, the appellant was in custody and at his instance the recoveries were affected. Therefore, Article 40 is attracted and said recoveries were according to law." In case reported as Pandurang Kalu Patil and another v. State of Maharashtra {PLJ 2004 SC (India) 90} the Hon'ble Supreme Court of India on the point of recovery of gun at the instance of accused observed as follows: "The fact discovered by PW 18 is certainly not the gun. The fact discovered is that A2 had concealed the gun (Article No. 5/2) behind the old house under a heap of wood. It was the same gun with which A2 had fired at PW2 and that aspect has been proved with the help of other evidence." Moreover, for the recoveries which are effected under Article 40 of Order ibid there is no need of assxiating two respectable persons of the locality. Such recoveries can be proved even through the statements of any two persons, even the police officials. In this respect, reference can made to the case of Muhammad Ashiq v. The State (1998 PCrLJ 1996). In this situation, the recovery of pistol etc. stands fully proved against Hamza Yaqoob (appellant).
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15. While considering the case of Zeeshan Mehmood (appellant), we have noticed that prosecution failed to satisfactorily establish his guilt during trial. Zeeshan Mehmood (appellant) stands convicted mainly on the evidence of Sh. Abdul Rauf (PW.16) who claimed to have seen him while decamping from the spot on a motorcycle along with two unknown persons shortly after the incident. In this regard, firstly it is observed by us that according to Farhad Ali and Muhammad Awarish (PW.17 & PW.18), only two persons participated in the incident. Secondly, Farhad Ali and Muhammad Awarish (PW.17 & PW.18) did not identify Zeeshan Mehmood during identification test proceedings. Thirdly, it is noticed that only Sh. Abdul Rauf (PW.16) picked Zeeshan Mehmood (appellant) as a suspect during identification proceedings and that too with the claim of having seen him at some distance after the incident. We anxiously noticed that Sh. Abdul Rauf (PW.16) claimed that the motorcycle so driven by Zeeshan Mehmood (appellant) collided with his bicycle but this aspect was proved during cross-examination to be an outcome of dishonest improvement as is evident from the…
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