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Petitioner: NADIR HAYAT KHAN and another VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Sajjad Ahmad Sipra Title: NADIR HAYAT KHAN and another vs THE STATE Case No.: Criminal Appeals Nos.639, 651, 792 and Criminal Revision No,316 of 1996 Date of Judgment:1997-07-04 Reported As: 1997 P Cr. L J 2034 Result: Appeals accepted
JUDGMENT
JUDGMENT ' The present judgment shall also dispose of Criminal Appeal No,651 of 1996 filed by Rifat Hayat and Criminal Appeal No,792 of 1996 filed by Ghulam Dastgir along with the present criminal appeal filed by Nadir Hayat Khan and Muhammad Sher, as all of them impugn the judgment, dated 14-7-1996, whereby the learned Sessions Judge, Khushab, had convicted the appellants under section 302/34, P.P.C. And sentenced each of them to imprisonment for life with a fine of Rs,10,000 each or in default thereof to undergo further R.I. For two years, on two counts for having committed the murder of Naveed Ahmed and Muhammad Yaqub deceased. The sentences were, however, directed to run concurrently. ' Criminal Revision No,316 of 1996, filed by the complainant, for enhancement of the sentences awarded to the appellants and directed to be heard along with the present criminal appeals, shall also be disposed of by this judgment. 2. Brief facts leading to the present criminal appeals and the criminal revision are that the complainant Mehmood Hayat P.W.5 on 1-5-1994 at 5-30 p.m. Lodged the F.I.R. Exh.P.I. Alleging that he along with Malik Naveed Ahmed deceased Munshi Muhammad Yaqub deceased, Malik Muhammad Abdur Rehman and Ghulam Hussain visited the Dera of Malik Naveed Ahmad where the (conplainant) along with Ghulam Hussain and Muhammad Abdur Rehman stayed whereas Naveed Ahmed and Munshi Muhammad Yaqub went to have a round of wheat crop. At about 4-30 p.m. When both the deceased Naveed Ahmed and Munshi Muhammad Yaqub were present in their land, all the four appellants Ghulam Dastgir Rifat Hayat, Nadir Khan and Muhammad Sher, armed with guns, came to the spot and raised Lalkara that Naveed Ahmed will not go alive. Thereafter, Muhammad Sher appellant fired with his gun that hit Naveed Ahmed at his right arm.
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Rifat Hayat appellant fired with his gun towards Naveed Ahmed hitting him at his mouth and Naveed Ahmed fell down on the ground. Ghulam Dastgir appellant fired at Munshi Muhammad Yaqub hitting him at his left flank. Nadir Hayat appellant fired with his gun towards Muhammad Yaqub which hit his chest above right flank in result of which he also fell down on the ground. The complainant stated in his complaint that he along with Abdur Rehman and Ghulam Hussain had seen the whole occurrence and that when they reached the place of occurrence, all the four appellants decamped therefrom while firing in the air. Both the deceased Naveed Ahmed and Muhammad Yaqub succumbed to the injuries at the spot. 3. Muhammad Ashraf S.-1./S.H.O. (P.W.11) after recording the statement of the complainant Mehmood Hayat, proceeded the place of occurrence. He inspected the spot and prepared injury statement Exh.P.B. And inquest report Exh.P.C. Of the dead body of Naveed Ahmed deceased. He also prepared injury statement Exh.P.E. And inquest report Exh.P.F. Of the dead body of Muhammad Yaqub deceased. He also prepared rough sketch of the place of occurrence Exh.P.N. And after taking into possession the blood-stained earth from the place of murder of Naveed Ahmed and Muhammad Yaqub vide memo. Exh.P.K. And Exh.P.L. Respectively. He sent the dead bodies of Naveed Ahmed and Muhammad Yaqub to mortuary for post-in ortem examination, through F.C. Feroze and F.C. Ashraf, who after the post-mortem examination, produced before him the last- worn clothes of Naveed Ahmed deceased shirt P.5, Shalwar P.6 along with a sealed phial containing pallets and a cork P.7 which were taking into possession vide memo. Exh.P.H. Muhammad Ashraf, Constable produced before him the last-worn clothes of Muhammad Yaqub deceased i,e, Chadar P.1, vest P.2, a pair of Chappal P.3/1-2, along with a sealed phial containing pallets which were taken into possession vide memo. Exh.P.G. He recorded the statements of Feroze, Ashraf. F.Cs. Ghulam Muhammad and Khalid Farid P.Ws. On 8-5-19/4 he got prepared rough notes from'Patwari and on 9-5-1994 he arrested Ghulam Dastegir, Rifat Hayat, Nadir Hayat and Muhammad Sher appellants. On 23-5-1994, on pointing out of the appellant Ghulam Dastegir, he recovered a gun P.8 alongwith two cartridges P.9/1-2 which was taken into possession vide memo. Exh.P.J. He after recording the statements of Eisab Khan and Noor Ahmad P.Ws., prepared the rough sketch of the place of recovery Exh.P.J./1. He deposited all the parcels with M.H.C. Of the police station and after completion of investigation, he challaned Ghulam Dastegir and Rifat Hayat by placing them in column No,3 in the challan. 4. At the trial the prosecution examined as many as thirteen witnesses to prove its case. P.W.2 Muhammad Ashraf, Constable, had escorted the dead body of Muhammad Yaqub to the mortuary and after the post-mortem examination; he had received last-worn clothes of Muhammad Yaqub deceased and a sealed parcel containing pellets Exh.P.4 from the Medical Officer and delivered the same to the Investigating Officer. P.W.3 Feroze Hussain, Constable, had escorted the dead body of Naveed Ahmed to the mortuary and after the post-mortem examination, he had received last- worn clothes of the deceased along with a sealed container P.7 containing pellets and cork, from the Medical Officer and delivered the same to the Investigating Officer. He was also handed over two sealed parcels containing blood-stained earth by Muhammad Yar, M.H.C. Which he delivered intact to the Office of Chemical Examiner. P.W.4 Muhammad Yar, M.H.C., was handed over two sealed parcels containing blood-stained earth by the Investigating Officer, that he had delivered to P.W.3 for onward transmission to the Office of Chemical Examiner. P.W.7 Muhammad Ayub, brother of Muhammad Yaqub deceased, had identified the dead body of Muhammad Yaqub. P.W.8 Eisab Khan, A.S.-I., was the recovery witness of gun .12 bore P.8 along with 2 live cartridges Exh.P.9/1-2 which were taken into possession vide memo. Exh.P.J. P.W.9 Muhammad Ishaque was the recovery witness of blood-stained earth taken from the place of murder of Naveed Ahmed deceased vide memo. Exh.P.K. And blood-stained earth taken from the place of murder of Muhammad Yaqub deceased vide memo. Exh.P.L. P.W.10 Ghulam Qasim, Patwari Halqa, had prepared site plans Exh.P.M.
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And Exh.P.M./1 at the behest of the police and on pointing out of witnesses. The site plan was prepared in the scale of 1 inch is equal to 40 Karams. P.W.12 Ghulam Muhammad had identified the dead body of Naveed Ahmed deceased at the time of post-mortem examination. P.W.13 Ahmed Yar Khan, S.P., who was entrusted the investigation of the instant case by the order of the Inspector- General Police, Punjab, after examining the persons produced by both the parties, the other people along with the appellants, inspecting the place of occurrence an4 having obtained the approval from the Inspector-General Police, Punjab, had directed the local police to challan all the four appellants. 5. The brief contents of the statement of Investigating Officer P.W.11 Muhammad Ashraf, Inspector, have already been given in the earlier parts of this judgment. 6. P.W.5 Mehmood Hayat complainant in his statement had reiterated the contents of the F.I.R. Lodged by him, by adding with regard to motive that there was also a dispute in respect of the ornaments taken from Naveed Ahmed deceased by Nazar Hayat son of Shahadat Khan, brother of the three appellants. P.W.6 Ghulam Hussain, who was an eye-witness of the occurrence in question, had supported the prosecution case by stating that he was present at the spot when the appellants had committed the murder of Naveed Ahmed and Muhammad Yaqub deceased. 7. P.W.1 Dr. Sajjad Ahmed, Medical Officer, on 2-5-1994 had conducted post-mortem examination on the dead body of Malik Naveed Ahmed, brought by Muhammad Feroze, Constable and identified by Ghulam Muhammad and Khalid Fareed and had found the following injuries on it:-- (1) Wound of entry 4 c.m. x 2 c.m. With inverted. Margins on the left maxillary region, 1 c.m. Lateral to the ala of the nose, 4 c.m. Below the left eye. The wound was surrounded by blackening and clotted blood. (2) Wound of exit 1/2 x 1/2 cm. On the back of neck, lateral to c-7 prominence, on the left side of cervical spine. (3) A wound of entry 8 cam x 5 c.m. On the right cubital fossa. The margins were lacerated and flesh was exposed. Tattooing was present. (4) Multiple wounds of exit on the back of right arm. On dissection he found the following:- "Left parietal bone was fractured. Left maxillary bone was mutilated.' ' The meninges were damaged by the pellet and the brain matter was coming out of the brain coverings. Bleeding was present in the \ left hemisphere of brain on section. ' A wound was found between 3rd and 4th ribs, right side parietal surface. There were corresponding holes in the right pleura which was damaged. Right lung was damaged due to pellet. Left and right ventricles of the heart were empty. Right brachial artery was ruptured. ' Stomach contained undigested food particulars. Small intestines contained chyme. Bladder contained small amount of urine and all the other organs of the thorax and abdomen were normal and healthy. ' In his opinion death had occurred due to massive damage to the brain as a result of injury No,1 which was sufficient to cause death of a person in ordinary course of nature. Probable time between injuries and death was 10 to 15 minutes and between death and post-mortem examination was within 24 hours. 8. On the same day i,e, 2-5-1994 at 8-00 a.m. Had also conducted the post-mortem examination on the dead body of Muhammad Yaqub, brought by Muhammad Ashraf, Constable, identified by Muhammad Ayub and Muhammad Riaz, and had found the following injuries:-- (1) A wound of entry 2 c.m. x 2 c.m., on left side of the abdomen, about 5 c.m. From the umbilicus. The fat was coming out of the wound. (2) Multiple small wound of entrance surrounding injury No,1. (3) 8 small wounds of exit on the left side of the chest below the right nipple in the mid axillary line. (4) Wound of entry 1/2 x 1/2 c.m., just below the right medial epicondyle of the right arm.
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' On dissection he found the following:-- "On the right side of the thorax, multiple wounds were seen on the anterior thoracic wall. Right pleura was punctured. Right lung was damaged. Abdominal aorta was ruptured. ' The anterior abdominal wall was damaged by multiple wounds of entry and axil. Peritoneum was badly ruptured. Diaphragms was damaged on right side. Stomach was ruptured and contained blood. Pancreas was damaged. Small intestines were ruptured at different places and contained chyme. Large intestines were ruptured at different cites. Liver was badly damaged. Both the 'kidneys were damaged. Bladder contained small amount of urine." ' In his opinion death had occurred due to massive damage to the abdomen as a result of injuries Nos.1 and 2, which were sufficiently fatal to cause death in ordinary course of nature. Probable time between the injuries and death was within 10 to 15 minutes and between death and post-mortem examination was within 24 hours. 9. Since the appellants Nadir Khan and Muhammad Sher were declared innocent by Muhammad Munawar Akhtar, D.S.P., Muhammad Amlish Khan, S.P. And Aftab Sultan, S.S.P. In their respective investigations, as such, on the application moved by the said appellants, the learned trial Court had summoned the said Police Officers as Court-witnesses. Muhammad Munawar Akhtar, D.S.P., had appeared as C.W.1 and deposed about the verification made by him in respect of the investigation conducted by Muhammad Ashraf, Investigating Officer P.W.11 wherein the appellants Nadir Hayat and Muhammad Sher were declared innocent. Aftab Sultan, S.S.P., had appeared as C.W.2 and deposed that in the joint investigation conducted by him along with Muhammad Amlish, S.P. Under the orders of Inspector-General Police, Punjab, they had come to the conclusion that Ghulam Dastgir appellant was the real culprit and Rifat Hayat appellant was present with him at the spot while declaring Nadir Hayat. And Muhammad Sher appellants as innocent, being not present at the time of occurrence. C.W.3 Muhammad Amlish, S.P., had corroborated the statement made by C.W.2 Aftab Sultan, S.S.P. By adding that although Rifat Hayat appellant was present at the spot but neither he had any weapon nor he had participated in the occurrence. 10. The prosecution had given up Abdur Rehman, Muhammad Riaz, Noor Ahmed and Khalid Farid P.Ws., being unnecessary and after tendering in evidence the reports of the Chemical Examiner Exh.P.O. And Exh.P.P. And the reports of Serologist Exh.P.Q. And Exh.P.R. Had closed its case. 11. Appellant Ghulam Dastgir in his statement under the provisions of section 342, Cr.P.C. Had denied all the allegations levelled against him and claimed to be innocent by deposing that as he was about 80 years old, neither he could see nor hear anything and even he could not step forward without help. He had also deposed about the trouble of enlarged prostrate that he was suffering from prior to the occurrence in question. 12. Appellants Muhammad Sher and Nadir Hayat, in their statements under the provisions of section 342, Cr.P.C. Had also denied the allegations levelled against them and claimed to be innocent by taking the plea of alibi and had deposed that they had been falsely implicated in the present. Case due to a quarrel having taken place between their as well as the complainant's womenfolk at the time of marriage of daughter of Mola Dad Tiwana, and just to occupy the property left by Naveed Ahmed deceased, as deposed by Nadir Hayat appellant. 13. Appellant Rifat Hayat, in his statement under the provisions of section 342, Cr.P.C. Had also denied the allegations levelled against him and claimed to be innocent by deposing that he had not participated in the occurrence and he had been falsely involved in this case just for taking possession of the property left by Naveed Ahmed deceased and due to a quarrel between their as well as the complainant's womenfolk prior to the occurrence at the occasion of marriage ceremony of daughter of Malik Mola Dad Khan. 14. At the trial the appellants have examined only one witness in their defence. D.W.1 Muhammad Ismail, A.S.-I. Had brought the record of S.P. Office, Khushab, before the learned trial Court alongwith
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the application Exh.D.L. Moved by the complainant Mahmood Hayat. Appellant Nadir Hayat had also produced before the learned trial Court a copy of discharge order Exh.D.J. And a copy of the order passed by High Court in bail application Exh.D.K. All the accused, however, did not get recorded their statements under the provisions of section 340(2), Cr.P.C. 15. The learned trial Court taking into consideration the facts and circumstances of the case, had convicted and sentenced the appellants as stated above. 16. The Present three criminal appeals in question have been argued by the following learned counsel, respectively, on behalf of:-- "Appellants Nadir and Muhammad Sher in Criminal Appeal No,639 of 1996 by Mr. Ijaz Hussain Batalvi, Senior Advocate, whereas appellants Rifat Hayat and Ghulam Dastegir in Criminal Appeals Nos.651 of 1996 and 792 of 1996 by Mr. Inayat Ullah Cheema, Senior Advocate and Kh. Sultan Ahmed, Senior Advocate, respectively." ' The said learned counsel for the appellants named above, were heard at length and the record perused with their assistance. During the hearing of the criminal appeals on the two dates i,e, on 3- 7-1997 and 4-7-1997, Mr. Aftab Farrukh, Senior Advocate, was present in the Court throughout and rendered assistance to the Court in perusing the record of the case, but on taking the rostrum to make his submissions on behalf of the criminal revision petitioner/complainant Malik Mehmood Hayat, learned counsel Mr. Aftab Farrukh, Senior Advocate, informed the Court in great 'embarrassm ent that his client has instructed him not to argue the matter and to withdraw from the case. The Court, of course, allowed the learned counsel to withdraw from the case while recording its appreciation of his having been available to the Court throughout the hearing of the criminal appeals in question. A written application, addressed to the Court by the complainant named above, was also handed over to the Court by Mr. Aftab Farrukh, Senior Advocate, which was directed to be placed on the file of the criminal revision petition, directed to be heard alongwith the present criminal appeals. The complainant/criminal revision petitibner refused to press his revision petition although he remained present in the Court during the proceedings even after he had withdrawn his learned counsel Mr. Aftab Farrukh, Senior Advocate. The Court is further constrained to observe that the learned counsel for the State, namely, Mr. Fawad Malik, Advocate, had deliberately avoided appearing before the Court to represent the State in a most unprofessional manner, despite contact having been made with him and that, therefore, on Court's call, Mr. Naveed Rasul Mirza, learned Additional Advocate-General, Punjab and Ms. Yasmin Sehgal, learned Assistant Advocate-General, Punjab, had put in appearance and duly represented and argued the case on behalf of the State. 17. The learned counsel for the appellants made their submissions in support of their respective cases in the following order:-- ' Mr. Inayat Ullah Cheema, Senior Advocate, argued first, Mr. Ijaz Hussain Batalvi, Senior Advocate made submissions thereafter, and finally Kh. Sultan Ahmed, Senior Advocate, addressed the Court in support of their respective appellants. 18. Mr. Inayat Ullah Cheema, Senior Advocate, called into question the conviction and sentence awarded to his appellant Rifat Hayat and submitted that the prosecution had miserably failed to prove the charge against the said appellant by pointing out that the prosecution evidence suffered from great infirmities. Submitted that the two eye-witnesses namely, Malik Mehmood Hayat complainant P.W.5 and Ghulam Hussain P.W.6 were chance witnesses who had failed to justify their presence at the place of fateful occurrence. Further submitted that, as admitted by them, they were residents of Sargodha which was at a distance of 70 kilometres from the place of occurrence and that the material contradictions in their testimony regarding the mode and manner of their having reached to the place of occurrence, was totally unsatisfactory and in fact, their contradictions between the testimony of the said two eye-witnesses in that respect can only lead
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to inescapable conclusion that they had not witnessed the occurrence in question. Further argued, in that respect that whereas the complainant P.W.5 had claimed to have arrived at village Hammoka within the fields thereof the alleged murder of the two deceased that had taken place a day earlier, the other eye-witness P.W.6, who happens to be a son-in-law, had claimed to have come to Hammoka/the place of occurrence on the very day of the unfortunate happening. Further emphasized, that the mutually contradictory testimony of the two eye-witnesses has totally destroyed the prosecution's case. To support his case further pointed out that the alleged killing of the two deceased at points Nos.1 and 2 from point No,3 which was stated to be at a distance of 78 Karams, as recorded in the site plan Exh.P.M. Being at that long a distance the two eye-witnesses could not have heard either the Lalkara alleged or could be in a position to state in detail as to whose shot had hit what part of the body of the deceased. Further argued, that according to the said site plan Exh.P.M. And according to the testimony of P.W.10 Ghulam Qasim, Patwari Halqa and as admitted by the complainant P.W.5 during his cross-examination there was a road 7/8 feet high, between the said point No,3 from where the eyewitnesses have claimed to witness the alleged murder of the two deceased at points Nos.1 and 2, thus, raising serious doubts about their being able to witness the occurrence in question. Further stressed the fact that, according to the medical evidence i,e, post-mortem report Exh.P.A. And the testimony of Dr. Sajjad Ahmed, P.W.1, who had conducted the said post-mortem of the deceased Malik Naveed Ahmed, the two wounds of entry, suffered by the said deceased i,e, injury No,1 and injury No,3 had blackening and tatooirig present which totally contradicted the testimony of the eye-witnesses P.W.5 and P.W.6 to the effect that the accused had fired at the two deceased respectively from 9 and 14 Karams, that being the. Point No,4 from where the appellants have been alleged to have opened the fire and points Nos.1 and 2 respectively where the two deceased had been hit and killed by the alleged shots fired. Further argued, that the possibility of the said two eye-witnesses not having witnessed the occurrence in question is further supported by the fact that they had attributed an exit wound i,e, injury No,3 according to medical evidence, suffered by the second deceased Muhammad Yaqub, to appellant Nadir. Finally, submitted that, as highlighted by the cross-examination of the complainant P.W.5, the F.I.R. Had been lodged after due deliberation and, as such, it had no legal sanctity and the possibility of the truth having been suppressed and innocent persons having been roped into the instant case, cannot be ruled out and that the benefit of such doubt should go to the advantage of the appellants. Further pointed out, that repeated investigations had declared the appellant Rifat Hayat to be innocent by holding that he was neither armed nor did he participate in the occurrence alleged. 19. Mr. Ijaz Hussain Batalvi, Senior Advocate, submitted that the motive, as set out, was only in respect of appellant Ghulam Dastegir and had nothing to do with his appellant Nadir and Muhammad Sher; and that in fact, none had been alleged or proved against them. Further submitted that though it had been alleged that the occurrence had taken place on their instigation i,e, yet there was not a word of evidence to support the said allegation. Further argued that the complainant P.W.5 was not a truthful witness as was proven beyond a shadow of doubt by the confrontations that he had been subjected to, time and again, by his previous statements i,e, Exh.D.B., Exh:D.C. And Exh.D.D. Further submitted that the said complainant P.W.5 had admittedly falsely involved two other persons i,e, Khuda Bukhsh and Ghulam Muhammad in the instant case, as he had given up his allegations against them subsequently, before the police and by withdrawing the private complaint filed against them and was not willing even at the time of the recording of his testimony to press it again as is evident from his testimony before the learned trial Court. Further argued, that the role/injury attributed to the appellant Nadir was totally belied by the testimony of P.W.1 Dr. Sajjad Ahmed and the postmortem report Exh.P.D. As already emphasized before the Court as the said injury attributed was an exit wound. The learned counsel vehemently
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stressed that the false implication of his appellant was because of the quarrel of the ladies of the two sides at a marriage ceremony as complainant P.W.5 had stated in his earlier statements Exh.D.B., Exh.D.C. And Exh.D.D. By which he had been confronted time and again during his testimony which, in fact, totally demolished the case of the prosecution as charged. Further emphasized that the appellants Nadir and Muhammad Sher had no interest in the village Hammoka wherein occurrence had taken place admittedly being from a village that was 100 miles from the place of occurrence and that the two appellants namely, Nadir and Muhammad Sher are employed in Bata Shoe Company at Lahore and Market Committee, Jauharabad respectively. Further, pointed out that the said two appellants had taken up a plea of innocence on the basis of alibi right from the first day and that the said plea had been proved to be true in repeated investigations that had led to the discharge of the said two appellants from the instant case by the police. 20. Kh. Sultan Ahmed, Senior Advocate, contended for the acquittal of his appellant Ghulam Dastegir by, in the first instance, adopting the arguments advanced on behalf of the other appellants to assail the conviction and sentence vide the impugned judgment. Subthitted that the criteria that has to come into play to judge whether or not the prosecution had proved -its case beyond a reasonable doubt against the appellant, has to be primarily based on the sufficiency and…
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