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Petitioner: MUHAMMAD LATIF VS Respondent: StateHonorable Justice Malik Shahzad Ahmad KhanMrs. Erum Sajjad Gul
2013 Y L R 1257
[Lahore]
Before Manzoor Ahmad Malik and Malik Shahzad Ahmad Khan, JJ
MUHAMMAD LATIF and others---Appellants
Versus
The STATE---Respondent
Criminal Appeals Nos.149-J, 670, Criminal Revision No.634 and Murder Reference No.229 of 2010, heard on 17th January, 2012.
(a) Penal Code (XLV of 1860)---
----Ss. 302(b)/149 & 324/49---Qatl-e-amd, attempt to commit qatl-e-amd---Appreciation of evidence---F.I.R. was not promptly lodged---Possibilities of concoction and deliberation were always present in the case of a delayed F.I.R.---Eye-witnesses were not only closely related to the deceased, but admittedly complainant party was inimical towards accused party---Statements of said witnesses, therefore, required independent corroboration, which was lacking in the case---Prosecution witnesses had improved their statements at the trial with regard to identification of accused in torch light, besides moon light on the night of occurrence, but torches were never produced before Investigating Officer---Identification of accused in moon-light was quite difficult because of the position of moon on that night---Evidence of identification in torch-light was insignificant, when such torch was not taken into possession by the police---Medical evidence was not in line with ocular testimony---Injury on the person of one eye-witness did not stamp her with truth---Dishonest improvements made by prosecution witnesses on material aspect of the case regarding identification of accused, had made them unreliable---No crime empty having been secured from the spot, gun recovered from the accused was of no avail to prosecution and the report of Forensic Science Laboratory showing the gun being in working condition, was of no consequence---Recovery of two lead bullets after twenty five days of occurrence from the wooden doors of the house, was highly doubtful, particularly when the same were not sent to Forensic Science Laboratory for comparison with the recovered gun---Motive was not proved on record, which as alleged could not be considered against the accused on account of the deep rooted enmity between the parties---Abscondence of accused, per se, was not a proof of the guilt against him, even if found convincing---Accused were acquitted in circumstances on benefit of doubt.
Ashrar alias Ashroo and another v. The State 2005 PCr.LJ 1489; Amanullah and 4 others v. The State PLD 1978 Kar. 792; Umar Hayat and others v. The State 1997 SCMR 1076; Amin Ali and another v. The State 2011 SCMR 323; Muhammad Ishaq v. The State 2007 SCMR 108; Ali Sher and others v. The State 2008 SCMR 707; Muhammad Pervez and others v. The State and others 2007 SCMR 670; Said Ahmad's case 1981 SCMR 795; Muhammad Rafique and others v. The State and others 2010 SCMR 385 and Barkat Ali v. Muhammad Asif and others 2007 SCMR 1812 ref.
(b) Penal Code (XLV of 1860)---
----Ss. 302(b)/149 & 324/149---Qatl-e-amd, attempt to commit qatl-e-amd---Appreciation of evidence---Delayed F.I.R.---Possibilities of concoction and deliberation are always present in the case of a delayed F.I.R.
(c) Penal Code (XLV of 1860)---
----Ss. 302(b)/149 & 324/149---Qatl-e-amd, attempt to commit qatl-e-amd---Appreciation of evidence---Identification of accused in torch light---Scope---Identification of accused in torch light is always treated as a weak piece of evidence---Evidence of identification in torch light is insignificant, when the torch on the basis of which the accused were identified, was not taken into possession by the Investigating Officer.
Umar Hayat and others v. The State 1997 SCMR 1076 ref.
(d) Penal Code (XLV of 1860)---
----Ss. 302(b)/149 & 324/149---Qatl-e-amd, attempt to commit qatl-e-amd---Appreciation of evidence---Injured witness---Credibility---Injuries on a prosecution witness only indicate his presence at the spot, but the same are not an affirmative proof of his credibility and truth.
Muhammad Pervez and others v. The State and others 2007 SCMR 670 and Said Ahmad's case 1981 SCMR 795 ref.
(e) Penal Code (XLV of 1860)---
----Ss. 302(b)/149 & 324/149---Qatl-e-amd, attempt to commit qatl-e-amd---Appreciation of evidence---Improvements made by witnesses---Effect---Witnesses who make improvements in their statements on material aspects of the case are not worthy of reliance.
(f) Penal Code (XLV of 1860)---
----Ss. 302(b)/149 & 324/149---Qatl-e-amd, attempt to commit qatl-e-amd---Appreciation of evidence---Abscondence of accused---Effect---Abscondence, per se, is not a proof of the guilt of an accused, which however can create a suspicion against him, but suspicion however strong cannot take the place of proof required for punishment of accused---Evidence of abscondence, even if found convincing, would not be sufficient by itself to warrant conviction on a charge of murder.
Barkat Ali v. Muhammad Asif and others 2007 SCMR 1812 ref.
Mrs. Erum Sajjad Gul for Appellants.
Ch. Ghulam Mustaf, D.P.G. for the State.
Zahid Hussain Khan for the Complainant.
Date of hearing: 17th January, 2012.
JUDGMENT
MALIK SHAHZAD AHMAD KHAN, J.---We propose to dispose of Murder Reference No.229 of 2010, sent by the learned trial Court, Criminal Appeal No.149-J of 2010, preferred by appellant Muhammad Latif, Criminal Appeal No.670 of 2010, submitted by Muhammad Asghar appellant, and Criminal Revision No.634 of 2010, filed by Basharat Ali-complainant, by this single judgment, as all these matters stem out of judgment dated 18-3-2010, passed by learned Additional Sessions Judge, Sarai Alamgir, District Gujrat.
2. Muhammad Latif and Muhammad Asghar appellants along with Muhammad Sarwar, Sabir Hussain, and Muhammad Hanif co-accused were tried in case F.I.R. No.440, dated 26-8-2005, registered at Police Station, Sarai Alamgir, District Gujrat, in respect of offences under sections, 302, 324, 148, 149 of P.P.C. After conclusion of the trial, vide its judgment dated 18-3-2010, while acquitting co-accused namely, Muhammad Sarwar, Sabir Hussain and Muhammad Hanif the learned trial court has convicted and sentenced the appellants as under:--
Muhammad Latif
Under section 302(b)/149 of P.P.C. to death for committing Qatl-e-Amd of Shabina Kausar deceased. He was also ordered to pay Rs.1,00,000 (Rupees one hundred thousand only) as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. or in default to suffer simple imprisonment for six months.
Under sections 324/149, P.P.C. to undergo rigorous imprisonment for 10 years along with fine of Rs.30,000, or in default of the payment of fine, to further undergo S.I. for three months.
Muhammad Asghar
Under sections 302/149 of P.P.C. to imprisonment for life for committing Qatl-e-Amd of Shabina Kausar deceased. He was also ordered to pay Rs.1,00,000 (Rupees One Hundred Thousand only) as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. or in default to suffer simple imprisonment for six months.
Under sections 324/149 of P.P.C. to undergo rigorous imprisonment for 10 years along with fine of Rs.30,000, in default of the payment of said fine amount, to further undergo S.I. for three months. Benefit of section 382-B of Cr.P.C. was also extended to him.
3. Brief facts of the case as disclosed by Basharat Ali complainant (P.W.4) in F.I.R. (Exh.PA/ 1) are that on 25-8-2005, at about 11-00 p.m., the complainant along with his real brother namely Ashiq Ali, Abdul Haq son of Muhammad Hussain, and 35/40 other persons were holding a procession to celebrate the victory of Ch. Manzoor Hussain, for the office of Nazim Union Council and were taking a round of the village and when they reached near the house of Sub. Muhammad Sarwar son of Muhammad Khan, who was their opponent, he (Muhammad Sarwar) started shouting, so, they stopped raising their slogans. The complainant further alleged in the F.I.R. that when the procession reached in front of the houses of Muhammad Ashraf son of Muhammad Khan and Najabat Ali son of Muhammad Walayat, the accused Muhammad Hanif armed with .12 bore double barrel gun, Muhammad Latif armed with rifle, both sons of Muhammad Khan came at the spot from the eastern side, whereas the accused Muhammad Sajjad armed with .12 bore gun pump action, Muhammad Ijaz armed with .244 bore rifle both sons of Muhammad Anwar came towards the main gate of the house of Muhammad Ashraf, and the accused Muhammad Sarwar armed with rifle 7 MM, Sabir Hussain armed with .32 bore revolver both sons of Muhammad Khan, Muhammad Asghar armed with .12 bore gun, Muhammad Akhtar armed with 'danda' both sons of Muhammad Sarwar, came on the roof top of the house belonging to Shabbir Hussain son of Muhammad Gulzar. The accused Muhammad Sarwar then raised lalkara that Basharat Ali, Ashiq Ali and Abdul Haq be not spared, on which the accused party started firing at the participants of the procession. The complainant further stated that he along with Ashiq Ali and Abdul Haq witnessed the occurrence in the moon-light, Muhammad Latif (appellant) allegedly made successive fire shots with his 12 bore gun, which landed on the chest, left cheek and left arm of Mst. Shabina Kosar, widow of Shaukat Ali, who was present in the courtyard of the house of her father Muhammad Ashraf, who died at the spot. Muhammad Asghar (appellant) allegedly made a fire shot with his .12 bore gun, which hit Mst. Zakiya Bano, daughter of the complainant, on the right side of her belly.
4. The motive for the occurrence, as stated by the complainant, was that the candidate of the accused party for the office of Nazim Union Council, lost his election, due to which, the accused, with their common object, committed the offence.
5. After completion of investigation, the challan was submitted before the Court, the appellants and their co-accused, all of them were charge sheeted, to which they pleaded not guilty and claimed trial. The prosecution in order to prove its case examined as many as 15 P.Ws. The complainant Basharat Ali (P.W.4), Abdul Haq (P.W.5) and Mst. Zakia Bano (P.W.13) furnished ocular account of the occurrence.
P.W.7 lady Doctor Fakhra Masaood Syed on 26-8-2005 at 3-00 p.m. conducted the post-mortem examination on the dead body of Mst. Shabina Kausar wife of Shaukat Ali (deceased) vide Post mortem Report Exh.P.W/6-A and Diagram Exh.P.W/6-A-1 and found the following injuries on her person:--
(1-A). A fire arm wound of entry 1 cm x 1 cm present on the upper medial quadrant of left breast. There was no burning blackening or tattooing. There was a colour of abrasion present on the medial side, corresponding whole was present in the clothes.
(1-B). A fire arm wound of exit with everted margin present 3 cm below the lower edge of left scapula.
(2-A). A fire arm wound of entry on antrolateral aspect of left upper arm 9 cm below the left shoulder. Colour of abrasion all around.
(2-B). A fire arm wound of exit present on postrolateral aspect of left upper arm 12 cm below the left shoulder.
(3-A). A fire arm wound of entry 1 cm x 1 cm with inverted margin present on left side of face 4 cm in front of left ear.
In her opinion, all the injuries mentioned above were ante-mortem and were caused by a fire arm weapon, which were sufficient to cause death in ordinary course of nature. Probable time that elapsed between injuries and death was within few minutes and between death and post mortem was 12 to 24 hours.
P.W.8 Dr. Syed Islam Zafar, Director Health Services Punjab, Lahore, on 26-8-2005, medically examined Mst. Zakiya Bibi (P.W.13) daughter of the complainant, and found the following injuries on her body:--
(1) Fire arm wound 1 x 8 cm on right renal area of abdomen, laterally. Burning positive and no bleeding.
(2) Fire arm wound 1 x 4 cm x 1 x 4 cm on front of abdomen on umbilical area 2 cm lateral to umbilicus. No burning. Omentum was coming out of wound. Edges were outward. Corresponding marks of injuries were present on qameez. General condition was not satisfactory.
Both injuries were kept under observation and the injured was immediately referred to THQ Hospital, Kharain, for surgical management. Injuries were inflicted by fire arm weapon and the duration of the injuries was fresh. Final opinion was to be given after the report of Surgical Specialist.
P.W.11 Muhammad Arif Gondal, Inspector was the Investigating Officer of this case who completed the investigation and submitted the challan.
P.W.1 Ansar Ali, Constable, P.W.2 Muhammad Arif, A.S.-I., P.W.3 Abid Hussain, Constable, P.W.6 Muhammad Sharif, P.W.10 Asghar Ali, P.W.12 Muhammad Asghar Ali, A.S.-I. are the formal witnesses. The complainant Basharat Ali (P.W.4), Abdul Haq (P.W.5) and Mst. Zakia Bano (P.W.13) are the witnesses of ocular account.
6. The statements of the appellants and their co-accused under section, 342 of Cr.P.C. were recorded. They refuted the allegations levelled against them and professed their innocence. In answer to the question, why this case against you and why the P.Ws. have deposed against you, the appellant Muhammad Latif replied as under:-
"I am innocent and has been involved in this case falsely due to the enmity and sister of Basharat Ali complainant eloped with me and Basharat complainant of this case got registered a case of abduction against me. I filed a suit for restitution of conjugal rights against Mst. Sughran Bibi, who was taken back by Basharat Ali, complainant when I was sent to jail and Sughran Bibi appeared before Family Court Judge and made statement in my favour and rebutted the abduction case and desired to live a family life with me. On this Sughran Bibi, sister of complainant was allowed to live with me from the Family Court, Kharian. P.Ws. have deposed falsely against me and my co-accused, who are my near relatives. It was a dark night occurrence. The procession was taken to celebrate the success of Nazim Ch. Manzoor, to whom the accused party was continuously opposing for the last three terms of elections. The success of Nazim was not controllable for his supporters and to press and humiliate us the procession was arranged, which according to P.Ws. started from shakreela, a place 3/4 k.m away from place of occurrence and only village Shah Ghora was selected for this celebration with pump and show. The members of the procession who were there to show their strength were making aerial firing and the procession remained moving around the whole village abadi. The aerial firing of the members of the procession resulted in injuries to the deceased. Prosecution in collusion with their successful Nazim Manzoor chalked out a false story to involve us in the case falsely. P.Ws. being having longstanding enmity against us thought it a proper chance when of their own firing the deceased was hit and got injuries and to eliminate us and my whole family, this false case has been planted upon us. None from us fired at the procession or anyone else. On account of general firing by the procession, we have hidden ourselves in the safer places to save our skins as we fear that we have opposed Ch. Manzoor Nazim and when had been succeeded there was every apprehension that the procession hosted in his favour may not cause loss to us. If we have fired at the procession, the same must have hit any of the member of the procession but it had not occurred so and the aerial firing by the complainant party holding a procession had hit the deceased causing her death. P.Ws. are closely related inter se and inimical towards us. They have motive to falsely implicate us on account of previous enmity. They are interested witnesses. No independent person has been produced as a witness in this case and no independent corroboration has been produced by the prosecution. A licenced gun has been planted upon me and the same was not recovered at my pointation. My co-accused namely Sarwar, Hanif and Asghar along with Ejaz Anwar P.O. have been declared innocent during the course of investigation by the investigating agency. This also negates the prosecution case. I pray mercy from God and justice from this Honourable court "
The appellant Muhammad Asghar also denied the allegations of the prosecution levelled against him and claimed his innocence, in his statement recorded under section 342 of Cr.P.C. In answer to the question, why this case against you and why the P.Ws. have deposed against you, the appellant Muhammad Asghar replied as under:--
"For the reasons stated by my co-accused Latif, I have been falsely involved in this case".
The appellants and their co-accused did not make statements under section 340(2) Cr.P.C, however, Muhammad Latif appellant produced in his defence copy of F.I.R. No. 321 dated 12-5-2004 Exh.D-1, copy of F.I.R. No. 421 dated 18-8-2000, Exh.D2, copy of F.I.R. No. 509 of 2001 Exh.D3, copy of F.I.R. No. 312 of 2000 Exh.D-4, copy of F.I.R. No. 503 of 1990 Exh.D-5, copy of F.I.R. No. 290 of 1997 Exh.D-6. The learned trial Court vide its judgment dated 18-3-2010, while acquitting co-accused, namely, Muhammad Sarwar, Sabir Hussain and Muhammad Hanif, found Muhammad Latif and Muhammad Asghar, appellants guilty and convicted and sentenced them as mentioned above.
7. The learned counsel for the appellants, in support of this appeal, contends that there is delay of four hours in reporting the matter to the police without there being any satisfactory explanation on the record and even time of injured Mst. Zakia Bano is not mentioned in the MLR Exh.P.W.8/A; that in the F.I.R. no source of light except moon light is mentioned; that the occurrence allegedly took place in the night of 25-8-2005, which was 20th Rajb and the moon rising time on that date was 10-45 p.m., and as such, there was no light at the relevant time, but while appearing before the Court, the witnesses made dishonest improvements by stating that they had torches with them, whereas, there was no such mentioning in the F.I.R. or the statements recorded under section 161 of Cr.P.C; that it is the case of the complainant in the F.I.R. Exh.PA/1 and in his statement before the Court that he (the complainant) along with other were going in a procession and when they reached near the house of Muhammad Sarwar accused, they heard a noise coming from inside of his house, therefore, they stopped the slogans and that Muhammad Sarwar raised lalakara that Basharat, Ashiq, and Abdul Haq be not spared and thereafter the accused started firing, but surprisingly, none of these persons or any other person present in the procession received even a scratch; that admittedly Mst. Shabina Kausar (deceased) was not participant of the procession and she, as per site plan Exh.PH/1, was inside the house and there was a wall of the height of six and a half feet between the appellant Muhammad Latif and Mst. Shabina Kausar (deceased), which fact has been confirmed by P.W.4 in his cross-examination and as per site plan the appellant Muhammad Latif, who has allegedly caused injury to Mst. Shabina Kausar, was at Point-2 and from where it is not possible for the appellant Muhammad Latif to cause injury to Mst. Shabina Kausar (deceased), who was inside the house at point-1 having a cover of a wall of the height of six and a half feet.
As far as the appellant Asghar is concerned, learned counsel for the appellant contends that specific allegation against him was that he was armed with rifle and caused injuries on the belly of Mst. Zakia Bano (P.W.13), but the said injury, as per medical report, has burning around it, whereas, the distance of 21 feet between the appellant-Asghar and Mst. Zakia Bano has been shown in the site plan Exh.P-H, because as per site plan Mst. Zakia Bano was at Point-3, whereas, the appellant Muhammad Asghar was at Point-4; that since the said injury has burning around it, therefore, is not possible for the appellant to have caused the said injury from such a long distance; that initially it was the case of the prosecution that the appellant Muhammad Latif was armed with rifle, but subsequently it is mentioned that he fired with .12 bore gun; that allegation against the appellants was that they were armed with a gun and a rifle, but no empty was recovered from the spot, whereas, it is the case of the prosecution that some led bullets were recovered from the wooden door of the house of Muhammad Ashraf, but the same were not sent to the FSL for comparison with the gun (P.1) allegedly recovered from the appellant Muhammad Latif.
As far as motive part is concerned, the learned counsel for the appellants contends that the motive is a double edged weapon that cuts both ways. On the one hand, it could be a cause of commission of offence, simultaneously, it could be a reason for false implication of the accused in a case, and in this case, admittedly there is a deep rooted enmity between the parties, therefore, motive cannot be considered in favour of the prosecution. The learned counsel for the appellants further contends that Muhammad Sarwar, Sabir Hussain and Muhamamd Hanif, co-accused of the appellants, have been acquitted by the learned trial Court against whom Criminal Appeal No.969 of 2010, filed by the complainant has already been dismissed by this Court vide order dated 14-6-2010, therefore, the evidence which has been disbelieved qua the acquitted co-accused of the case, the same could not be believed for the conviction of the appellant.
8. Conversely, the learned Deputy Prosecutor-General, for the State, assisted by the learned counsel for the complainant opposes this appeal on the grounds that delay of four hours in lodging the F.I.R. in a murder case, which took place at night time in a village, is not fatal to the prosecution. Further contends that Mst. Zakia Bano was injured in this incident and in the circumstances the first and foremost priority of the complainant and the other witnesses was to provide her medical treatment instead of reporting the matter to the police; that both the appellants are nominated in the F.I.R. with specific role of causing injury to the deceased and injured, respectively, which is fully supported by the medical evidence available on the record and the appellants cannot get the benefit from the acquittal of their co-accused, as no specific injury was attributed to them; that in this case, Mst. Zakia Bano who was aged about 10 years, at the relevant time, was injured, she appeared before the Court as (P.W.13) and fully supported the prosecution case to the extent of Muhammad Asghar appellant; that the ocular account furnished by the prosecution remained consistent, confidence-inspiring, transparent and the defence failed to shake the credibility of the witnesses and their evidence cannot be discarded merely because of previous enmity between the parties; that the motive has been proved and even has not been denied, therefore, this appeal be dismissed.
9. We have heard the arguments of the learned counsel for the parties, and have gone through the evidence available on record.
10. The occurrence in this case as per F.I.R. (Exh.PA/1) took place on 25-8-2005, at 11-00 p.m. (night). The matter was reported to the police by the complainant Basharat Ali (P.W.4) on 26-8-2005, at 3-00 a.m. (night), and the formal F.I.R. (Exh.PA/1) was registered at 3-25 a.m. (night). The Police Station Sarai Alamgir was at a distance of seven miles from the place of occurrence. The incident had taken place in village Shah Ghora, Police Station, Sarai Alamgir, District Gujrat. At the time of occurrence, as per prosecution, 35/40 persons were taking part in the procession, which was taken out to celebrate the victory of Chaudhry Manzoor Hussain, for the office of Nazim Union Council. It has also come on record during the cross-examination of Abdul Haq P.W.5 that facility of mobile phone was available in the village at the time of occurrence, but the matter was reported to the police with the delay of four hours. Although it has been argued on behalf of the complainant that the delay was caused because Mst. Zakia Bano was taken to the hospital by the complainant, but at the same time it is an admitted fact that apart from the complainant, 35/40 persons of the complainant side were present at the time of occurrence but none from them reported the matter at the Police Station, which was at the distance of only 7 miles, despite availability of mobile phone service. The time of arrival of Mst. Zakia Bano (injured) has not been mentioned in her MLR Exh.P.W.8/A, so that it could be established that the complainant was in fact busy in her medical treatment during the time consumed between the occurrence and registration of the F.I.R., therefore, the F.I.R. in this case was not lodged promptly. The possibilities of concoction and deliberation are always there, in the case of a delayed F.I.R.
The prosecution in order to prove the ocular account has produced Basharat Ali (P.W.4), Abdul Haq (P.W.5), and Mst. Zakiya Bano (P.W.13). The complainant Basharat Ali (P.W.4) is 'Behnoee'…
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