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Petitioner: The State VS Respondent: Muhammad Aslam
Court Name: Lahore High Court Judge(s): Sadiq Mahmud Khurram, Muhammad Amjad Rafiq Title: The State vs Muhammad Aslam Case No.:Murder Reference No.08 of 2017, Criminal Appeal No. 75 of 2017, Criminal
JUDGMENT
Reported As: 2021 LHC 6585 Result: N/A Judgment JUDGMENT SADIQ MAHMUD KHURRAM, J. -Muhammad Aslam son of Muhammad Nawaz, Muhammad Akram alias Dilshad Ahmad son of Muhammad Nawaz , Muhammad Akmal son of Muhammad Nawaz and Muhammad Nawaz son of Allah Ditta (convicts) were tried along with Muhammad Sadiq son of Muhammad Ramzan (since acquitted) by the learned Additional Sessions Judge, Yazman in case FIR No. 241 of 2013 dated 25.11.2013 registered at Police Station Head Rajkan, District Bahawalpur , in respect of offences under sections 302, 324,148 and 149 PPC for committing the Qatl-i-Amd of Irshad Ahmad son of Allah Ditta (deceased). The learned trial court vide judgment dated 01.02.2017, convicted Muhammad Aslam son of Muhammad Nawaz, Muhammad Akram alias Dilshad Ahmad son of Muhammad Nawaz, Muhammad Akmal son of Muhammad Nawaz and Muhammad Nawaz son of Allah Ditta (convicts) and sentenced them as under: Muhammad Aslam son of Muhammad Nawaz : Death under section 302(b) PPC as Tazir for committing Qatl-i-Amd of Irshad Ahmad son of Allah Ditta (deceased). The convict namely Muhammad Aslam son of Muhammad Nawaz was ordered to be hanged by his neck till dead. Muhammad Akram alias Dilshad Ahmad son of Muhammad Nawaz:- Simple Imprisonment for one year as Tazir under section 337- F(i) PPC and directed to pay Daman of Rs. 10,000/- to Shafi Muhammad (PW -4) and to remain in custody till the payment of amount of Daman . Muhammad Akmal son of Muhammad Nawaz:- Simple Imprisonment for one year as Tazir under section 337- F(i) PPC and directed to pay Daman of Rs. 10,000/- to Muhammad Amjad (PW -3) and to remain in jail till the payment of amount of Daman . Muhammad Nawaz son of Allah Ditta:-
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Simple Imprisonment for one year as Tazir under section 337- F(i) PPC and directed to pay Daman of Rs. 10,000/- to Dilshad Ahmad (PW -1) and to remain in jail till the payment of amount of Daman . The convicts namely Muhammad Akram alias Dilshad Ahmad son of Muhammad Nawaz , Muhammad Akmal son of Muhammad Nawaz and Muhammad Nawaz son of Allah Ditta were extended the benefit available under Section 382-B of Code of Criminal Procedure, 1898 by the learned trial court Muhammad Sadiq son of Muhammad Ramzan, the co-accused of the convicts was acquitted by the learned trial court. 2. Feeling aggrieved, Muhammad Aslam son of Muhammad Nawaz (convict) lodged Criminal Appeal No.75 of 2017 assailing his conviction and sentence. Feeling aggrieved, Muhammad Akram alias Dilshad Ahmad son of Muhammad Nawaz , Muhammad Akmal son of Muhammad Nawaz and Muhammad Nawaz son of Allah Ditta (convicts) lodged Criminal Appeal No.72 of 2017 assailing their conviction and sentences. The learned trial court submitted Murder Reference No.08 of 2017 under section 374 Cr.P.C. seeking the confirmation or otherwise of the sentence of death awarded to the appellant namely Muhammad Aslam son of Muhammad Nawaz . We intend to dispose of the Criminal Appeal No.72 of 2017, Criminal Appeal No.75 of 2017 and the Murder Reference No.08 of 2017 through this single judgment. 3. Precisely , the facts necessary , as divulged through the statement of Dilshad Ahmad (PW-1) , the complainant of the case, are as under:- "On 25.11.2013, it was about 11:00 a.m. I present on, my land at Chak No.21/DNB. That land was purchased by my father from Iqbal Abbasi. We were in possession of that land and we were cultivating that land. Suddenly Akram, Aslam, Akmal while armed with rifles, Allah Nawaz was armed with sota and 3/4 unknown accused persons came there. Aslam accused made a lalkara that today they would teach a lesson to us for watering the field. The accused persons encircled us. Aslam accused made a fire from his rifle which hit at the chest of my brother Irshad Ahmad since deceased. Akmal accused made a fire from his rifle which hit on the thigh of Amjid. Ajmal accused made a fire from his rifle which hit on the thigh of the Waseem. On our hue and cry my mother Zarina Bibi, Sabir and Shafi Muhammad came there. They tried to save us, thereupon, Aslam accused gave a batt blow to my mother Zarina Bibi. Akram alias Dilshad accused gave a sota blow to Shafi at his head. Nawaz accused gave a sota blow on my right arm. Aslam accused repeated the fire which was landed on the right upper arm of Sabir . The accused persons thereafter gave beating to us. After the occurrence, the accused persons with their fire arm weapons and weapon of offence made good to their escape. With the help of our relatives, the injured persons were shifted to the hospital. The death of Irshad Ahmad was declared by the doctor in the hospita l. I went to the police station for reporting the matter . Thereafter , police came in the hospital. I submitted my application Ex.P.A. Police prepared injury statements. Thereafter , police came to the place of occurrence. Police collected 11 crime empties, taken in possession, sealed into parcel through recovered memo Ex.P.B. I attested the recovery memo. Police also collected blood stained earth of Amjid PW, made into sealed parcel through recovery memo Ex.P.C. I attested the recovery memo. Police also collected blood stained earth of Irshad, made into sealed parcel through recovery memo Ex.P.D. I attested the recovery memo. After registration of the case, Akram alias Dilshad accused present before the court was arrested on 10.12.2013. On 15.12.2013 sota was recovered on the pointation of accused from the tractor garage of accused. That sota was taken into possession by the police through recovery memo Ex.P.E. The recovery memo was attested by me and Sajid Hussain. On 23.12.2013 rifle was recovered from Aslam accused present before the court in my presence as well as in the presence of Sajid Hussain. That recovery was affected from the residential house of Aslam accused. The rifle was taken into possession by police through recovery memo Ex.P.F. The recovery memo was attested by me and Sajid Hussain PW . Police also arrested Akmal accused but without recovery from him, he was sent to judicial lock up. The motive behind the occurrence land dispute between us and accused party ." 4. After the formal investigation of the case, the report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court, wherein the accused were sent to face trial. The learned trial court framed the charge against the accused on 24.12.2014, to which the accused pleaded not guilty and claimed trial.
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5. The prosecution in order to prove its case, got statements of as many as fifteen witnesses recorded. The ocular account of the incident was furnished by Dilshad Ahmad (PW-1), Allah Ditta (PW-2), Muhammad Amjad (PW-3), Shafi Muhammad (PW-4), Zareena Bibi (PW-5), Muhammad Waseem (PW-6) and Muhammad Sabir (PW-7). Muhammad Asif, (PW-10) stated that on 25.11.2013, the Medical Officer handed over the last worn clothes of the deceased to the police official in his prese nce. Sarfraz Ahmad 23/C (PW-12) stated that on 25.11.2013 the Medical Officer handed over to him the last worn clothes of the deceased which he handed over to the Investigating Officer of the case and further stated that on 15.12.2013 Zahoor Ahmad, ASI (PW-13) handed over to him three sealed parcels for their onward transmission to the office of Punjab Forensic Science Agency , Lahore and further stated that on 29.12.2013 Zahoor Ahmad, ASI (PW-13) handed over to him one sealed parcel for its onward transmission to the office of Punjab Forensic Science Agency , Lahore, which parcels he deposited in the Punjab Forensic Science Agency , Lahore, intact. Shabbir Ahmad , SI (PW-14) stated that on 25.11.2013 he recorded the formal F.I.R (Exh.P A/1). Muhammad Afzal, Patwari (PW-14) prepared the scaled site plan (Exh.PP) of the place of occurrence. Sajjad Hussain, SI (PW-15) investigated the case from 25.11.201 3 till 07.05.2014, arrested the appellant namely Muhammad Aslam on 15.12.2013, arrested the appellant namely Muhammad Akram alias Dilshad Ahmad on 29.11.2013, arrested the appellant namely Muhammad Akmal on 02.02.2014 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court. 6. The prosecution also got Dr. Muhammad Asif Manzoor (PW-11) examined, who on 25.11.2013 was posted as Medical Officer at RHC Head Rajkan and on the same day conducted the postmortem examination of the dead body of Irshad Ahmad son of Allah Ditta (deceased). Dr. Muhammad Asif Manzoor (PW-11) ,on examining the dead body of Irshad Ahmad son of Allah Ditta (deceased) observed as under: "(i) A lacerated wound measuring about 1 cm x 1 cm situated on left side of chest, near the left border of sternum about 14 cm from left nipple and 15 cm from chin. Its margins were blackened, collar of abrasion was present at left inferior aspect of wound. (ii). A lacerated wound measuring about 2 cm x 2.5 cm, situated at posterior aspect of right shoulder slightly lateral aspect, about 11 cm. from tip of right shoulder . Margins and fatty tissue were everted from the wound, profusely bleeding. (iii). A contusion of blackish in colour measuring about 2.5 cm x 1cm situated at left side of Forehead, about 2.5 cm from left eye brow . Injury No(i) and (ii) were deep on inserting probe. (iv) A contusion at left Forehead about 2.5 cm from left eye brow . removing scalp skin black coloured blood present, but bone was normal, not fractured .......................
OPINION .
After thorough external and internal post mortem examination of the body , this was of my opinion that injury No(i) and (ii) were caused by firearm, in tract of bullet damaged the major blood vessels and right lung that leads to acute Hemorrhagic shock resulting in form of death. This injury was sufficient to cause death in ordinary course of nature. All three injuries were antemortem in nature. Injuries No.(i) and (ii) were caused by firearm, and death was less than one hour and between death and post mortem was jury No.(iii) was caused by blunt weapon. Probable time between injury less than 12 hours." On 25.11.2013 , Dr. Muhammad Asif Manzoor (PW-11) also medically examined Muhammad Amjad (PW-3) and observed the following injuries:- "Injury No. (01): A lacerated wound measuring about 1 cm x 1 cm situated an anteromedial aspect of thigh. The wound was having slightly burned margins and inverted tissue. Advised Digital X-Rays Rt-thigh and Surgical opinion. Injury No.(02): A lacerated wound measuring about 2cm x 3cm situated at posterolateral aspect of right thigh (Rt- gluteal region) slightly below centre of gluteal region. Margins of tissue and fatty tissue everted and bleeding profusely .
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Injury No.(03): A swelling measuring about 10 cm x 8 cm situated on left side of head including temporal region. There was also swelling of left eye. Advised CT Scan Brain with Bone window , Surgical opinion, Ne opinion. Final Opinion. Injury No(01), (02) & (03) were KUO Beca use police had not provided Digital X-rays, CT scan and Neurosurgeon's opinion, so nature of injuries and type of weapon not declared.". On 25.11.2013 , Dr. Muhammad Asif Manzoor (PW-11) also medically examined Muhammad Sabir (PW-7) and observed the following injuries:- Injury No. (01): Two wounds at Right arm (i) A lacerated wound measuring about 2.5 cm x 1 cm situated medial aspect of right arm about 12 cm from right elbow joint. Wound was slightly bleeding and margins were inverted, margins were slightly black ands. seemed burned. Advised Digital X-Rays and Surgical Notes from BVH, Bahawalpur . (ii) There was also a lacerated wound measuring about 5 cm x 1.5 cm situated on medial aspect of right arm about 3 cm from right elbow joint. Wound was profusely bleeding, margins were everted. No blackening seen. Advised Digital X-rays right arm Ap, lateral view and surgical notes from BV", Bahawalpur . Injury No.(02): There was swelling of left arm. Swelling was diffused, involving left elbow . Severe pain and tenderness on movement. Advised Digital X-rays and radiologist's Opinion from BVH, Bahawalpur . Final Opinion. Injury No(01) & (02) were KUO.Because police has not provided Digital X-rays, and consultant's opinion from BVH, Bahawalpur . I was unable to declare nature of injuries and type of weapon." On 25.11.2013 , Dr. Muhammad Asif Manzoor (PW-11) also medically examined Shafi Muhammad (PW-4) and observed the following injuries:- "Injury No.(01): There was a lacerated wound measuring about 7.5 cm x 2 cm and Bone exposed, bleeding profusely , flaps of scalp were raised. Advised Digital X-Rays Skull AP- Lat view and Surgical Notes. Injury No.(02): There was swelling, reddish black in colour , present at left eye brow and infra orbital region. No bleeding, No laceration seen. Final Opinion. Injury No(02) was described as 337-L2 and because of injury No(01). Injury No.(01) was KUO and caused by blunt weapon. Because police had not provided Digital X-rays, and consultant's opinion. So, I was unable to declare nature of injury No(01)." On 25.11.2013, Dr. Muhammad Asif Manzoor (PW-11) also medically examine d Dilshad Ahmad (PW-1) and observed the following injuries:- "Injury No.(01): There was swelling in the right forearm, near the wrist. joint, mild swollen bruise was visible. There was severe pain and tenderness in the wrist joint. Advised Digital X-Rays right forearm AP- Lat view . Final Opinion. Injury No(01) KUO and caused by blunt weapon. Because police had not provided Digital X-rays, and consultant's opinion. So, I was unable to declare nature of injuries." On 25.11.2013 , Dr. Muhammad Asif Manzoor (PW-11) also medically examined Allah Ditta (PW-2) and observed the following injuries:- " Injury No. (01):- A lacerated wound measuring about 4 cm x 2 cm having raised flaps of scalp, bone exposed. Wound was bleeding profusely . Wond (sic) was situated on right side of head about 9 cm from right ear. Advised Digital Rays Skull AP- Lat view . Injury No. (02):-There was lacerated wound measuring about 3.5 cm x 1 on Bone not exposed, bleeding profusely , situated on left side of head about 4 cm from left ear . Advised Digital x-rays skull and surgical Notes. Final Opinion. Injuries No. (01) & (02) were KUO. Because police had not provided Digital X-rays, and consultant's opinion. So, I was unable to declare nature of injuries."
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On 25.11.2013 , Dr. Muhammad Asif Manzoor (PW-11) also medically examined Muhammad Waseem (PW-6) and observed the following injuries:- "Injury No.(01): A lacerated wound measuring about 3 cm x 1 cm, Bone not exposed, situated on left side of head about 7 cm from left hear . Wound was profusely bleeding. Advised Digital X-rays Skull AP- Lat view . Injury No.(02):There was a lacerated wound triangular in shape, measuring about 4 cm x 3 cm, flaps of scalp were raised and bone exposed. W ound was profusely bleeding. Advised Digital X-rays Skull AP- Lat view . Injury No. (03): There was mild, no visible swelling pain was described by patient, No bruise no laceration seen. Injury No.(04): - There was mild swelling of left arm, near elbow , No bruise no laceration seen. Injury No.(05): - There was a lacerated wound measuring about 5 cm x om, situa ted on posteromedial aspect of right thigh about 10 cm from right knee joint. Wound was slightly bleeding. Margins were black in colour (seemed to be burned). Advised Digital X-rays Right thigh AP view- Lat view . Final Opinion. Injuries No.(03) & (04) Nil. Injuries No (01), (02) & (05) were KUO. Because police had not provided Digital X-rays, and consultant's opinion. So, I was unable to declare nature of injuries and type of weapon." The prosecution also got Dr. Bushra Tariq (PW-9) examined who on same day examined Zareena Bibi (PW-5) and observed the following injuries:- Description of injuries 1 An oblique incised wound 05 X 01 CM X bone not exposed on left side of skull. Advised X-ray . 2. A longitudinal incised wound 03X01 CM X bone not exposed on top of skull. Advised X-ray . 3. Complaint of pain in back but no marks of violence. Injury NO. 01 and 02 were Kuo. Injury No. 03 was no injury . Probable duration of injuries was within 08 hours. Kind of weapon By sharp edge weapon. X-ray reports. Patient not reported to x-ray department for x-rays." 7. On 21.01.2016, the learned Deputy District Public Prosecutor closed the prosecution evidence after tendering in evidence the report of Punjab Forensic Science Agency , Lahore regarding the blood stained earth (Exh.PBB) and the report of Punjab Forensic Science Agency , Lahore regarding the comparison of empty and the recovered Rifle (Exh.PCC). 8. After the closure of prosecution evidence, the learned trial court examined the appellants namely Muhammad Aslam son of Muhammad Nawaz, Muhammad Akram alias Dilshad Ahmad son of Muhammad Nawaz, Muhammad Akmal son of Muhammad Nawaz and Muhammad Nawaz son of Allah Ditta under section 342 Cr.P.C. and in answer to the question why 12 this case against you and why the PWs have deposed against you, they replied that they were innocent and had been falsely involved in the case. The appellants further claimed that on the day of occurrence they were attacked by the complainant party while they were present on their own land and during the said attack by the complainant party , the appellants namely Muhammad Aslam, Muhammad Akram alias Dilshad and their mother namely Aziz Mai and their sister namely Zareena Mai were also injured. The appellants also claimed that during the occurrence Irshad Ahmad (deceased) died at the hands of Dilshad Ahmad (PW-1) by the fire made by him. The appellants namely Muhammad Aslam son of Muhammad Nawaz and Muhammad Akram alias Dilshad Ahmad son of Muhammad Nawaz , opted to get themselves examined under section 340(2) Cr.P.C. and also produced Abdul Hakeem (DW-3) and Haji Muhammad Ramzan (DW-4) as witnesses in their defence. The learned counsel for the accused also tendered in evidence the following documents in support of the version of the accused :- 1. Attested copy of statement of Muhammad Shafi In suit titled "Muhammad Nawaz Vs. Muhammad Shafi" Exh.DC .
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2. Attested copy of order dated 30.10.2010 Exh.DC/1. 3. Attested copy of Rapat No.5 dated 15.05.2013 P .S Head Rajkan Exh.DD. 4. Copy of agreement between Muhammad Shafi and Muhammad Nawaz dated 30.03.2010 alongwith receipt (three pages) Mark.A. 5. Copy of application made by Muhammad Shafi to DCO Bahawalpur for Patta Malkiat dated 1 1.03.2013 Mark-B. 6. Copy of challan dated 04.03.2013 regarding payment of Installment Mark-C. 7. Copy of Khasragirdawri from Khareef 2012 to Rabl 2013 Mark-D 8. Copy of application u/s 19 of Colonies Act alongwith statements of the parties and proceeding of Patwari dated 07.06.2013 (five pages) Mark-E. 9. Copy of Jamabandi for the year 2010-201 1 Mark-F . 10. Copy of MLC of accused Aslam Mark-G. 11. Copy of MLC of accused Akram Mark-H. 12. Copy of MLC of Zarina Mai Mark-I. 13. Copy of MLC of Aziz Mai Mark-J. 14. Copy of application by Aziz Mai to DSP Bahawalpur for registration of FIR Mark-K. 15. Copy of application u/s 22-A Cr.P.C alongwith order dated 23.12.2013 (four pages) Mark-L. 9. On the conclusion of the trial, the learned Additional Sessions Judge, Yazman, convicted and sentenced the appellants as referred to above. 10. The contention of the learned counsel for the appellants precisely is that whole case is fabricated and false and that the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence. Learned counsel for the appellants in support of this appeal, further contended that the story of the prosecution mentioned in the F.I.R., on the face of it, was highly improbable and the reason assigned by the complainant and the eye-witnesses for being present at the place of occurrence was without any justification. He further contended that the statements of Dilshad Ahmad (PW-1), Allah Ditta (PW-2), Muhammad Amjad (PW-3), Shafi Muhammad (PW-4) , Zareena Bibi (PW-5) , Muhammad Waseem (PW-6) and Muhammad Sabir (PW-7) were not worthy of reliance. The learned counsel for the appellants further argued that on the day of occurrence the appellants were attacked by the complainant party while they were present on their own land and during the said attack by the complainant party , the appellants namely Muhamma d 14 Aslam, Muhammad Akram alias Dilshad and their mother namely Aziz Mai and their sister namely Zareena Mai were also injured, whereas Irshad Ahmad (deceased) died at the hands of Dilshad Ahmad (PW-1) by the fire made by him.. The learned counsel for the appellants finally submitted that the prosecution has totally failed to prove the case against the accused beyond the shadow of doubt. 11. On the other hand, the learned Deputy Prosecutor General along with the learn ed counsel appearing on behalf of the complainant/respondent No.2 contended that the prosecution proved its case beyond the shadow of doubt by producing independent witnesses. They further argued that the deceased died as a result of injury suffered at the hands of the appellant namely Muhammad Aslam and the witnesses were also injured at the hands of the appellants . They further contended that the medical evidence also corroborated the statements of Dilshad Ahmad (PW-1), Allah Ditta (PW-2), Muhammad Amjad (PW-3), Shafi Muhammad (PW-4), Zareena Bibi (PW-5), Muhammad Waseem (PW-6) and Muhammad Sabir (PW-7). They contended that there was no occasion for the prosecution witnesses to substitute the real offender with the innocent in this case. Lastly , the learned Deputy Prosecutor General along with the learned counsel appearing on behalf of the complainant/respondent No.2 prayed for the rejection of the appeals. 12. We have heard the learned counsel for the appellants, the learned counsel appearing on behalf of the complainant/respondent No.2, the learned Deputy Prosecutor General and with their assistance perused the record and evidence recorded during the trial. 13. The occurrence in the present case is admitted by the parties with their own respective versions. Each party has given different motive of the occurrence to establish the aggression of his opponent. According to the prosecution witnesses on 25.11.2013, at about 11:00 a.m. they were present on their land at Chak No.21/DNB,
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which land, according to Dilshad Ahmed (PW-1), was purchased by his father from Iqbal Abbasi, when the appellants namely Muhammad Akram alias Dilshad, Muhammad Aslam, Muhammad Akmal while armed with rifles and the appellant namely Muhammad Nawaz armed with a Sota and 3/4 unknown accused persons came there and attacked them . The appellants claimed that on the day of occurrence they were attacked by the complainant party while they were present on their own land and during the said attack by the complainant party , the appellants namely Muhammad Aslam, Muhammad Akram alias Dilshad and their mother namely Aziz Mai and their sister namely Zareena Mai were also injured. The appellants also claimed that during the occurrence Irshad Ahmad (deceased) died at the hands of Dilshad Ahmad (PW-1) by the fire made by him. It is a case of two versions, one set by the prosecution and the other as stated by the appellants. The common features in both the versions (one set out by the prosecution and the other by the appellants in their statements recorded under sections 340(2) and 342, Cr.P.C.) are that place of occurrence is not disputed and the cause of the incident, in both the versions, is almost same, being the dispute over the title and possession of the place of occurrence. First of all, we would like to see whether the prosecution has succeeded to prove its case against the appellants beyond any shadow of doubt because primarily , it is responsibilit y of the prosecution to discharge the said onus. The prosecution, in order to prove its case, mainly relied on the ocular account of the occurrence as furnis hed by Dilshad Ahmad (PW-1) , Allah Ditta (PW-2), Muhammad Amjad (PW-3), Shafi Muhammad (PW-4) , Zareena Bibi (PW-5) , Muhammad Waseem (PW-6) and Muhammad Sabir (PW-7) and the medical evidence. Presence of Dilshad Ahmad (PW-1), Allah Ditta (PW-2), Muhammad Amjad (PW-3), Shafi Muhammad (PW-4), Zareena Bibi (PW-5), Muhammad Waseem (PW-6) and Muhammad Sabir (PW-7) at the place of occurrence ,at the time of occurrence is established as they had the stamp of injuries on their bodies. The prosecution witnesses name ly Dilshad Ahmad (PW-1), Allah Ditta (PW-2), Muhammad Amjad (PW-3), Shafi Muhammad (PW-4), Muhammad Waseem (PW-6) and Muhammad Sabir (PW-7) were examined by Dr. Muhammad Asif Manzoor (PW-11) and the prosecution…
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