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Petitioner: Mazhar Hussain VS Respondent: The State and another
Court Name: Lahore High Court Judge(s): Tariq Saleem Sheikh Title: Mazhar Hussain vs The State and another Case No.: Criminal Appeal No. 531 of 2017 Date of Judgment:2019-12-19 Reported As: 2021 P Cr. L J 449 Result: Appeal allowed
JUDGMENT
JUDGMENT TARIQ SALEEM SHEIKH, J.---This appeal is directed against judgment dated 31.3.2017 passed by the learn ed Additional Sessions Judge, Vehari, in case FIR No.108/2004 dated 16.5.2004 registered at Police Station City Vehari for of fences under sections 302/34/109, P . P. C . 2. Brief facts of the case as are that on the night between 15/16/5/2004 Complainant Ghulam Haider (since dead), PW Imtiaz Ahmad (since dead), Muhamm ad Ashraf (PW-10) and Muhammad Zafar Nasir (PW-11) assembled in the house of Complainant's son Rasheed Ahmad (deceased) situated in College Town, Vehari, for negotiations with Khaliq-ur-Rehman (since P.0) in respect of a property dispute. Appellant Mazhar Hussain and an unknown person, who were accompanying Khaliq-ur-Rehman, were also present. At about 11:30 p.m. Rasheed Ahmad, who was serving as ASI at Police Station City Burewala, entered the house. As soon as Khaliq-ur-Rehman saw him he raised a Lalkara that he should not be left alive as he had usurped his land. Then he himself, the Appellant and their unknown co-accused pulled out their pistols and simultaneously fired at Rasheed Ahmad which hit his chest, bicep and back and he fell down. The Complainant and his companions attempted to apprehend the accused but they managed to escape. On hearing hue and cry people from the vicinity gathered at the spot. Rasheed Ahmad was rushed to the DHQ Hospital, Vehari, where he succumbed to his injuries. The motive behind the occurrence was a gift of a piece of land made by Khursheed Bibi to her daughter Shehnaz (who was wedded to Rasheed Ahmad) in exclusion of her other children Zumurd and accused Khaliq-ur-Rehman . The Complainant alleged that Zumurd's husband Akhtar Hussain alias Zakir (since dead) had instigated the Appellant and the other accused to commit the aforesaid murder . On receiving information about the incident, Fayyaz Hussain Shah/Inspector (PW-13) along with other police officials reached the hospital, recorded statement of Ghulam Haider and at 12:45 a.m. sent the complaint Exh.PM to the police station for registration of the case through Manzoor Ahmad 673/C on the basis of which Muhammad Tariq/ASI (PW -14) drew FIR Exh.PM/1, the same night at 1:10 a.m.
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3. The investigation of the case was entrusted to Ashfaq Hussain/SI (since dead). He visited the place of occurrence, prepared Injury Statement Exh. PD, Inquest Report Exh. PE and despatched the corpse to the mortuary under the escort Ejaz Ahmad 517/C (PW-5). He collected blood stained earth from the place of occurrence, sealed it into a parcel and secured it vide Recovery Memo Exh.PK. He also seized four empties of .30- bore pistol P-7/1-4 vide Recovery Memo Exh.PL and prepared rough site plan Exh.PN. After postmortem examination Ejaz Ahmad/Constable produced before him the last worn clothes of the deceased which he seized vide Recovery Memo Exh.PB. He got prepared scaled site plan (Exh.PG, Exh.PG/1 and Exh.PG/2) from Muhammad Nawaz Draftsman (PW-9). Muhammad Tariq/ASI, who was acquainted with the handwriting of Ashfaq Hussain/SI, appeared as PW-14 and produced secondary evidence with regard to investigation and the evidence that he collected in this case. Both the accused, Khaliq-ur- Rehman and Mazhar Hussain, were declared proclaimed of fenders after due process. 4. On 22.7.2015 investigation of the case was entrusted to Allah Ditta/ASI (PW-15) and the same day he arrested the Appellant. On 28.7.2015, he recovered pistol .30-bore P-4 from his residential house which he seized vide Recovery Memo Exh.PH. Allah Ditta/ASI also secured briefcase P-5 and Khes P-6 vide Recovery Memo Exh.PJ. On completion of investigation he found that the Appellant was involved in the offence. Report under section 173, Cr.P.C. was submitted accordingly . 5. On 28.1.2016, the learned Additional Sessions Judge indicted the Appellant who denied the charge and claimed trial. In order to prove its case, the prosecution examined 15 witnesses. The Complainant, Ghulam Haider , died during pendency of trial so the ocular account was rendered by Muhammad Ashraf (PW-10) and Muhammad Zafar Nasir (PW-11). Both of them also deposed with regard to recovery of pistol .30-bore P-4 at the instance of the Appellant. Medical evidence was furnished by Dr. Muhammad Ashraf Nadeem (PW-7). Muhammad Tariq/ASI, who was acquainted with the handwriting of the first Investigating Officer, Ashfaq Hussain/SI, appeared as PW-14 and produced secondary evidence with regard to his investigation and the evidence that he collected in this case. The second Investigating Officer, Allah Ditta/ASI (PW-15), gave details of his investigation. The remaining witnesses were formal in nature. In documentary evidence, the prosecution inter alia produced reports of the Chemical Examiner Exh.PP , Serologist ExhPQ and PFSA Exh.PR. 6. Dr. Muhammad Ashraf Nadeem (PW-7), who conducted autopsy on the dead body of Rasheed Ahmad on 16.5.2014 at 1:00 p.m., found following injuries on his body: 1-A A firearm entry wound 1 cm x 1 cm x going deep on the outer side of right upper arm. Margins averted. No blackening or tattooing was present. 1-B A firearm exit wound 1.5 cm x 1.5 cm x muscle deep. Margins averted. 2-A A firearm entry wound 1 cm x 1 cm x chest deep on right chest 5 cm above the right nipple. Margins inverted. Blackening and tattooing were present. 2-B A firearm exit wound averted margins on the back of right chest 8 cm below the upper border of right chest and 5 cm lateral to the vertebral column. 3-A A firearm entry wound margins inverted 1 cm x 1 cm x chest deep on the left lateral aspect of chest 15 cm below left axilla. Blackening and tattooing were present. 3-B A firearm exit wound 2 cm x 2 cm x chest deep with averted margins on the right side of the chest on lateral aspect 16 cm below right axilla. No blackening and tattooing was present. 4-A A firearm entry wound 1 cm x 1 cm going deep. Margins inverted. Blackening and tattooing were present in the right axilla. 4-B A firearm exit wound 1.5 cm x 1.5 cm x chest deep. Margins averted. No blackening and tattooing on back of right chest 3cm below Injury No.2-B. 5-A A firearm entry wound 1 cm x 1 cm x chest deep. Margins averted. Blackening and tattooing were present on right 3cm below Injury No.4-A. 5-B A firearm exit wound 2cm x 2 cm x chest deep. Margins averted. No blackening and tattooing, 2 cm below Injury No.4-B.
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6. A firearm entry wound 1 cm x 1 cm x chest deep on the back of right chest 2 cm below Injury No.5-B. Margins inverted. Blackening and tattooing were present. 7. A firearm entry wound 1 cm x 1 cm x chest deep on the back of right chest, 3 cm below the Injury No.6. Margins inverted. Blackening and tattooing were present. 8. A firearm entry wound 1 cm x 1 cm x abdomen deep on the back of abdomen on the left side at the level of lumber area. Margins inverted. Blackening and tattooing were present. Dr. Muhammad Ashraf Nadeem deposed that all the injuries mentioned above were ante-mortem and caused by firearm. Cause of death in this case was Injuries Nos.2 to 8 which damaged vital organs, including heart and lung, leading to severe hemorrhage and shoc k. In his opinion, possible time between injuries and death was a few minutes and between death and postmortem was about 12 hours. 7. On 18.3.2017 the learned trial Court recorded the statement of the Appellant under section 342, Cr.P.C. and confronted him with all the incriminating evidence brought against him. He refuted the same and professed innocence. He 'maintained that the Complainant had falsely implicated him in this case because of his relationship with accused Akhtar Hussain (since dead). The Appellant neither opted to make statement on oath under section 340(2), Cr.P.C. in disproof of the allegations levelled against him nor examined any witness in his. defence. However , he tendered in evidence certified copies of the private complaint titled "Mian Waheed Ahmad Khan v. Khalil-ur-Rehman " (Exh.DA), the statement of Mian Waheed Ahmad (complainant of the said case) recorded therein (Exh.DB), order dated 30.1.2006 (Exh.DC) and photoco py of the list of witnesses in the complaint case (Mark-A). 8. On the conclusion of the trial, vide judgment dated 31.3.2017, the learned Additional Sessions Judge convicted the Appellant under section 302(b), P.P.C. as Taz'ir and sentenced him to imprisonment for life with direction to pay Rs.300,000/- as compensation to the legal heirs of the deceased in terms of section 544-A, Cr.P.C. and in default thereof to undergo simple imprisonment for a further period of six months. Benefit of section 382-B, Cr.P.C. was, however , extended to him. Hence, this appeal. 9. The learned counsel for the Appellant has impugned his conviction and sentence on various grounds. His foremost contention is that the Appellant's trial is ab initio void because it has been held in violation of Article 13 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution"), and section 403, Cr.P.C. On 29.3.2005, Mian Waheed Ahmad, brother of Rasheed Ahmad deceased, filed a private complaint Exh.DA in respect of the same incident in which he nominated the Appellant as one of the accused. On 30.1.2006 he withdrew it whereupon the learned Additional Sessions Judge recorded an order of acquittal in his favour . Since the said order still holds the field he could not be tried again. On merits the learned counsel contends that the prosecution has failed to prove the charge against the Appellant beyond doubt. He argues that, firstly , the ocular account furnished by Muhammad Ashraf (PW-10) and Muhammad Zafar Nasir (PW-11) is not reliable. They are interested witnesses, could not prove their presence at the place of occurrence at the relevant time and contradicted each other in material particulars. Secondly , there is conflict in the medical evidence and the eye-witness account. Thirdly , pistol P-4 was not recovered from the Appellant and the same has been foisted on him. Lastly , the motive has also not been proved. He prays that this appeal may be accepted and the Appellant be acquitted. 10. On the other hand, the learned Deputy Prosecutor General has vehemently opposed this appeal. He contends that the FIR was promptly lodged and the Appellant was specifically nominated therein. Muhammad Ashraf (PW- 10) and Muhammad Zafar Nasir (PW-11) were eye-witnesses of the occurrence and their testimony inspires confidence. The ocular account is fully corroborated by medical evidence, recovery of pistol P-4 and motive. The learned Law Officer further contends that the Appellant remained a fugitive from law for more than 11 years. Such a long flight is also an incriminating circumstance and lends credibility to the prosecution case. As regards the private complaint Exh.DA, he submits that it was not decided on merits so the Appellan t has been lawfully tried in the challan case and his reference to Article 13 of the Constitution and section 403, Cr.P.C. is inapt. The learned Law Officer lastly contends that the impugned judgment is well reasoned and does not call for interference by this Court. He prays that that this appeal may be dismissed and the Appellant's conviction and sentence be upheld.
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11. I have heard the learned counsel and examined the record with their able assistance. I first take up the Appellant's objection relating to legality of the trial. 12. The concept of double jeopardy is one of the oldest in human history . In 355 B.C. Athenian statesman Demosthenes said that the "law forbids the same man to be tried twice on the same issue." The Romans codified this principle in the Digest of Justinian in 533 A.D. The principle also survived the Dark Ages (400-1066 A.D.) through the canon law and the teachings of early Christian writers, notwithstanding the deterioration of other Greco-Roman legal traditions. In England the protection against double jeopardy was considered a universal maxim of the common law and was embraced by eminent jurists Henry de Bracton (1250), Sir Edward Coke (1628), Sir Mathew Hale (1736), and Sir William Blackstone (1769). However , the English double jeopardy doctrine was extremely narrow . It afforded protection only to defendants accused of capital felonies and applied only after conviction or acquittal. It didn't apply to cases dismissed prior to final judgment.' The rule about double jeopardy continued to develop and expand for over 800 years but the situation changed with the Criminal Justice Act, 2003 (that came into effect two years later), which brought in reforms and permitted retrials in respect of a number of very serious offences where new and compelling evidence came to light. In the United States it is written in the Fifth Amendment which provides that "Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb". The principle was recognized in Article 14(7) of the United Nations International Covenant on Civil and Political Rights (ICCPR) and Article 4 of Protocol 7 to the European Convention on Human Rights (ECHR). {{Foot Note}} 1. https://criminal. findlaw .com / criminal-rights / the-concept-of-double-jeopardy-back-ground.html. 2 Adopted by the General Assembly in 1966 and it entered into force in 1976. 3 It was opened for signature on 22 November 1984 and entered into force, in respect of those States which had satisfied it, on 1 November , 1988. {{Foot Note}} 13. The principle of res judicata, which is generally understood with reference to civil law, has also been extended to criminal proceedings. Here it postulates that when ordinary appellate remedies have been exhausted, or the prescribed time for filing any appeal has expired, a conviction or acquittal is to be regarded as irrevocable. As a result, a person's acquittal cannot be subsequently challenged in other proceedings by adducing evidence that he was in fact guilty of the offence of which he was acquitted. In Sambasivam v. Public Prosecutor , Federation of Malaya [(1950) AC 458], the Privy Council held: "The effect of a verdict of acquittal pronounced by a competent Court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication. The maxim res judicata pro veritate accipitur is no less applicable to criminal than civil proceedings." The above rule was reiterated in G v. Coltart, [(1967) 1 QB 432) and R v. Hay [(1983) 77 Cr.App R 70]. However , in DPP v. Humphrys [(1977) AC 1] the House of Lords held that there is no issue-estoppel in the criminal law . 14. All European States recognize that the principle of res judicata applies to criminal proceedings though its application varies in different jurisdictions.4 The Explanatory Note to Protocol 7 to the ECHR also makes pointed reference to it. Richard L. Brawny notes that it was applied in the United States in U.S. v. Butler [38 Fed.498 (E.D. Mich. 1889] in 1889 and was "definitely established as a valid defence in our federal crimin al law by the U.S. Supreme Court in 1916" in U.S. v. Oppenheimer [242 U.S. 85 (1916)]. However , he adds that "although its significance in criminal cases has been somewhat overshadowed by the more famous principle of double jeopardy , res judicata has important consequences in crimina l law and it has now achieved a new rank of constitutional status". 15. It is pertinent to point out that the maxim Res judicata pro veritate accipitur , at least insofar as its application to criminal cases is concerned, has no statutory basis and is rather a creation of judicial interpretation and decisions. This rule is dif ferent from the rule against {{Foot Note}}2 3
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4 The Law Commission Consultation Paper No.156 on Double Jeopardy: available at law.com.gov .uk/uploads/2015/04/CP/56.pdf. 5 Res judicata in Criminal Law: The American Journal of Comparative Law, Volume 22, Issue Suppl-1, Supplement 1974, pages 637-673. {{Foot Note}} double jeopardy in the sense that it only refers to the admissibility of evidence in a subsequent trial aimed at upsetting a finding of fact recorded by a competent court in a previous trial. 16. In Pakistan, Article 13 of the Constitu tion of 1973 guarantees protection against double punishment by way of fundamental right. It reads as under: 13. Protection against double punishment and self incrimination. - No person: (a) shall be prosecuted or punished for the same of fence more than once; or (b) shall, when accused of an of fence, be compelled to be a witness against himself. 17. The term "prosecuted" was considered by the Hon'ble Supreme Court of Pakistan in Syed Alamdar Hussain Shah v . Abdul Baseer Qureshi and 2 others (PLD 1978 SC 121 ) and it ruled as under: "The important word in Article 13 is `prosecution'. According to Corpus Juris Scandum the term 'prosecution' has different meaning when used in different relations and it is regarded as a word of limited or extended signification according to the intention of the law maker or the person using it. In its broadest sense the term would embrace all proceedings in the course of justice or even elsewhere for the protection or enforcement of a right or the punishment of a wrong, whether of a public or private character . In a more limited sense the term includes the act of conducting or waging a proceeding in Court; the following up or carrying on of an action or suit already commenced until the remedy be attained ; the institution and carrying on of a suit in a Court of law or equity to obtain some right or to redress and punish some wrong. It includes commencing, conducting and carrying a suit to a conclusion in a Court of justice. It is in this limited sense that the word `prosecution' appears to have been used in Article 13 of the Constitution. Significantly , the marginal heading indicates that this Article is a protection against double punishment, which tends to show that it is only where the prosecution has finally concluded and ended either in acquittal or conviction that a fresh prosecution for the same of fence would be barred." 18. Similarly , in Muhammad Ashraf and others v . The State (1995 SCMR 626 ) the apex Court observed: "The protection given by Article 13(a) of the Constitution is against prosecution and double punishment. By prosecution is meant a trial followed by judgment of acquittal or punishment. It includes the entire proceedings starting with taking cognizance of an offence by the Court, followed by examination of evidence, addressing of arguments and ending with the pronouncement of judgment." 19. Section 403, Cr.P.C. extends the rule of double jeopardy and prohibits second trial where a person has been previously tried and convicted or acquitted for the same offence by a Court of competent jurisdiction and his conviction or acquittal is still in force. It enacts: 403. Persons once convicted or acquitted not to be tried for the same offence. ---(1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not to be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under section 36, or for which he might have been convicted under section 237. (2) A person acquitted or convicted for any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him on the former trial under section 235, subsection (1). (3) A person convicted of any offence constituted by any act causing consequences which together with such act, constituted a different offence from that of which he was convicted, may be afterwards tried for such last-mentioned offence, if the consequence had not happened, or were not happened, or were not known to the Court to have happened, at the time when he was convicted. (4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for any other offence constituted by the same acts which he
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may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged. (5) Nothing in this section shall affect the provision of section 26 of the Ggneral Clauses Act, 1897, or section 188 of this Code. 20. Analysis of section 403, Cr.P.C. evinces that second trial would be barred when the following conditions are fulfilled: i) the accused must have been previously tried by a Court of competent jurisdiction; ii) there must have been a hearing and determination on merits and he must have been convicted or acquitted; iii) the conviction or acquittal recorded in the previous trial remains in field; iv) the parties in the two trials must be the same; v) the fact-in-issue in the earlier trial must be identical with what is sought to be re-agitated in the subsequent trial. vi) the second trial is not in respect of any distinct offence for which a separate charge might have been framed in the previous trial under section 235(1), 'Cr .P.C.; and vii) the dismissal of a complaint, the stopping of proceedings under section 249, Cr.P.C. or the discharge of the accused does not constitute acquittal and does not bar second trial. 21. A combined reading of the above provisions shows that Article 13(a) of the Constitution sanctifies the rule autrefois convict while section 403(1) recognizes the principle of autrefois convict as well as autrefois acquit . In Muhammad Ashraf's case , supra, the Hon'ble Supreme Court explained that "the rule that no one shall be vexed twice for the same offence has its roots in the ancient maxim Nemo bis puniture aut vexature pro eodum delico which means that no one should be subjected to peril twice for the same offence. It is a fundamental rule of criminal law that no one should be exposed to hazards of punishment and convic ted twice for one and the same offence...The protection given by this Article 13 (a) of the Constitution is against prosecution and double punishment...If as a result of prosecution for an offence the trial ends in acquittal, Article 13(a) is not attracted. Constitutional guarantee is available only if the accused is convicted and punished. Thus, if the first prosecution results in acquittal, so far as this Article is concerned, the second prosecution is not prohibited. Such extension of rule of double jeopardy is to be found in section 403(1) of the Criminal Procedure Code...The constitutional guarantee is confined only to duplicate punishment and is silent in so far as acquitt al is concerned. Section 403(1), however , prohibits the second trial for an offence during the course of existence of conviction or acquittal of a person, as the same may be, in consequence of final adjudication of such an offence by a Court of competent jurisdiction." 22. Having discussed the law obtaining in Pakistan on the rule against double jeopardy , I advert to the facts of the instant case. Perusal of the record shows that on 29.3.2005, Mian Waheed Ahmad filed private complaint Exh.DA regarding Qatl-i-amd of Abdul Rasheed in which he nominated five persons, including the Appellant. The learned Additional Sessions Judge, Vehari, summoned the Appellant and his co-accused and indicted them on 19.10.2005. They denied the charge whereupon he summoned prosecution evidence. On 30.1.2006, Waheed Ahmad filed an application under section 248, Cr.P.C. stating that the family elders and respectables of the village had helped a compromise between the parties owing to which he wanted to withdraw his private complaint and had no objection if the accused were acquitted. Consequent thereupon, the learned Judge allowed him to withdraw the complaint and acquitted the Appellant and his co-accused vide order dated 30.1.2006. At the very outset, it is observed that section 248 is in Chapter XX of the Code which is titled "Of the Trial of Summons Cases D by Magistrates ". It does not apply to trials by the Court of Sessions which are conducted under Chapter XXII-A. Therefore, the order of the learned Additional Sessions Judge dated 30.1.2006 was patently illegal E and without jurisdiction. In Nazar Ahmad v. Muhammad Aslam and others [1988 PCr.LJ 1787 = PLJ 1989 Cr. C (Lah.) 226], this Court remanded a case for re-trial on similar facts holding as under: "It…
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