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Petitioner: The State VS Respondent: Zahid Murad
Court Name: Lahore High Court Judge(s): Sadiq Mahmud Khurram, Muhammad Amjad Rafiq Title: The State vs Zahid Murad Case No.: Murder Reference No. 02 of 2018, Criminal Appeal No. 76 of 2018 Date of Judgment:2021-10-04 Reported As: 2021 LHC 6014 Result: Appeal allowed
JUDGMENT
JUDGMENT . SADIQ MAHMUD KHURRAM, J.- Zahid Murad son of Ali Murad (convict) was tried along with his co-accused namely Ali Murad and Shahid Murad ( both since acquitted) by the learned Additional Sessions Judge, Rahim Yar Khan in the case FIR No. 380 of 2015 dated 21.11.2015 registered at Police Station Kot Samaba, District Rahim Yar Khan in respect of offences under sections 302, 148 and 149 PPC for committing the Qatl-i-Amd of Khalil Ahmad son of Haji Khan Muhammad and Qadeer Ahmad son of Rasheed Ahmad (deceased). The learned trial court vide judgment dated 29.01.2018, convicted Zahid Murad son of Ali Murad (convict) and sentenced him as under: Zahid Murad son of Ali Murad: Death on two counts under section 302(b) PPC as Tazir for committing Qatl-i-Amd of Khalil Ahmad son of Haji Khan Muhammad (deceased) and Qadeer Ahmad son of Rasheed Ahmad (deceased) and directed to pay Rs.2,00,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of Khalil Ahmad son of Haji Khan Muhammad and Qadeer Ahmad son of Rasheed Ahmad (deceased) and in case of default thereof, the convict was further directed to undergo six mont hs of simple imprisonment. The convict was ordered to be hanged by his neck till dead. Ali Murad and Shahid Murad, the co-accused of the appellant, were however acquitted by the learned trial court. Mujahid Murad and Mushahid Murad, other co-accused of the convict were tried separately under the Juvenile Justice System Ordinance, 2000 , being under the age of eighteen years at the time of occurrence and hence "child" within the definition of Juvenile Justice System Ordinance, 2000 . Mujahid Murad was convicted and sentenced to imprisonment for life on two counts under section 302(b) PPC as Tazir for committing Qatl-i-Amd of Khalil Ahmad son of Haji Khan Muhammad and Qadeer Ahmad son of Rasheed Ahmad (deceased) and directed to pay Rs.2,00,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of Khalil Ahmad son of Haji
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Khan Muhammad (deceased) and Qadeer Ahmad son of Rasheed Ahmad (deceased) and in case of default thereof, the he was further directed to undergo six months of simple imprisonment. Mushahid Murad, however was acquitted by the learned trial court . 2. Feeling aggrieved, Zahid Murad son of Ali Murad (convict) lodged Criminal Appeal No.76 of 2018 assailing his conviction and sentences. The learned trial court submitted Murder Reference No.02 of 2018 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentences of death awarded to the appellant namely Zahid Murad son of Ali Murad. We intend to dispose of the Criminal Appeal No. 76 of 2018 and Murder Reference No.02 of 2018 through this single judgment. 3. Precisely , the necessary facts of the prosecution case, as narrated by Haji Khan Muhammad (PW-1), the complainant of the case, are as under:- "Stated that on 21.11.2015 at 5.00 PM, I was present in my land whereas Khalil and Qadeer deceased were settling the edge of my land when in the meantime Ali Murad while armed with pistol, Zahid Murad armed repeator , Shahid Murad armed with pistol as well as Mujahid and Mushahid while armed pistols came there. They exerted a lalkara that we would not be left alive that day. In the meantime, I made hue and cry upon which Faiz Rasool and Shabbir PWs reached there. Accused Zahid made a fire shot upon my son Khalil deceased on his left arm while Ali Murad made a fire shot which hit Khalil Ahmad on left side of buttock. Accused Shahid made a fire which hit Qadeer on his left side of head. Mujahid made fire which hit on left side of forehead of Qadeer . Then accused Mujahid, Mushahid and Shahid forcibly took my son Khalil Ahmad to their nearby house. Ali Murad and Zahid Murad tried to carry do so as his body was weighty . In the meantime, people of the area started gathering there. When I, Shabbir and Faiz Rasool tried to rescue the Khalil and Qadeer , accused persons extended threats that we would met the same consequences if we tried to interfere. After gathering of people of locality the accused persons first went to their home and then fled away with their respective weapons. When we took care of Khalil he had succumbed to the injuries whereas Qadeer was lying injured in live condition. In the meantime, police came there on receiving information by someone telephonically . I got recorded my statement Ex.PA to the police which was read over to me and I thumb marked the same in token of its correctness. 4. After the formal investigation of the case report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court wherein the appellant namely Zahid Mura d son of Ali Murad and the co- accused of the appellant namely Ali Murad and Shahid Murad ( both since acquitted) were sent to face trial. The learned trial court framed the charge against the accused on 06.05.2016, to which the accused pleaded not guilty and claimed trial. 5. The prosecution in order to prove its case got statements of as many as fourteen witnesses recorded. The ocular account of the case was furnished by Haji Khan Muhammad (PW-1) and Faiz Rasool (PW-2). Wazeer Ahmad (PW-3) stated that on 22.11.2015 he identified the dead body of the deceased namely Qadeer Ahmad at the time of its post mortem examination and the Medical Officer handed over the last worn clothes of the deceased to the police. Lal Bakhsh, (PW-4) stated that on 21.11.2015 he identified the dead body of the deceased namely Khalil Ahmad at the time of its post mortem examination and the Medical Officer handed over the last worn clothes of the deceased to the police. Muhammad Ajmal 2016/C (PW-5) stated that on 22.11.2015 the Medical Officer conducted the post mortem examination of the dead body of Qadeer Ahmad (deceased) and handed over the last worn clothes . Muhammad Aslam 1993/C (PW-7) stated that on 21.11.2015 the Medical Officer conducted the post mortem examination of the dead body of Khalil Ahmad (deceased) and handed over the last worn clothes. Muhammad Anwar Khan, SI (PW-8) stated that on 21.11.2015 he recorded the oral statement (Exh.P A) of Haji Khan Muhammad (PW-1) and also prepared the injury statement of Qadeer Ahma d ( then injured later deceased ) and the inquest report (Exh.PN/1) of the deceased Khalil Ahmad. Muhammad Imran Bashir 6/HC (PW-10) stated that on 21.11.2015 he recorded the formal F.I.R (Exh.P A/1) and on the same day Abbas Akhtar , Inspector (PW-9) , the Investigating Officer of the case, handed over to him two sealed parcels said to contain blood stained earth and two sealed parcels said to contain empties and on 17.12.2015 he handed over the said sealed parcel to Fida Hussain, ASI (PW-14) for their onward transmission to the office of Punjab Forensic Science Agency , Lahore . Muhammad Imran Bashir 6/HC (PW-10) further stated that on 21.12.2015, Abbas Akhtar , Inspector (PW-9) , the
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Investigating Officer of the case, handed over to him two sealed parcels said to contain the recovered weapons and on 13.01.2016 he handed over the said parcel to Ghulam Abbas, SI (PW-11) for their onward transmission to the office of Punjab Forensic Science Agency , Lahore . Abdul Sattar Patwari (PW-12) stated that he prepared the scaled site plan of the place of occurrence (Exh.PH/3 and Exh.PH/4). Abbas Akhtar , Inspector (PW-9), the Investigating Officer of the case, investigated the case from 21.11.2015 till 09.07. 2016, arrested the appellant on 09.12.2015, 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. Haji Ahmad Durrani (PW-6) examined, who on 21.11.2015 was posted as Medical Officer at RHC, Kot Samaba and on the same day conducted the postmortem examination of the dead body of Khalil Ahmad son of Haji Khan Muhammad (deceased). Dr. Haji Ahmad Durrani (PW-6) ,on examining the dead body of Khalil Ahmad son of Haji Khan Muhammad (deceased) observed as under:- Description of injuries 1. Lacerated wound on middle portion of left fore-arm laterally with inverted margins 7.5 x 4 cm. Slight burning seen around wound. Cartridge was present inside. Left radius wound was fractured at site of injury .No.1 (entry wound). 2. Lacerated wound on middle portion of left forearm medically with everted margins 8 x 5 cm (exit wound). 3. Seven circular penetrating wounds with inverted burned margins close to each other in 6 x 6 cm diameter area on left pelvic area laterally measuring 1 x 1 cm each. Blood oozing out from these wounds ........................................ Opinion: After conducting external and internal post-mortem. examination, I am of the opinion that injuries No.1, 2 & 3 leading to excessive hemorrhage, hemorrhagic shock and caused death in ordinary course of manner . All injuries were caused by fire arm and were ante-mortem in nature." On the same day Dr. Haji Ahmad Durrani (PW-6) also medically examined Qadeer Ahmad son of Rasheed Ahmad (then injured later deceased) and opined as under:- "Description of Injuries. 1. Circular wound with everted margins right tempral are of head 3 cm from right ear measuring 1.5 x 1.5 cm (exit wound). 2. Circular penetrating wound with inverted margins on left frontal area of head 3 cm from mid line, 8 cm above from left eye brow measuring 1 x 1 cm (entry wound)." Dr. Haji Ahmad Durrani (PW-6) on 22.11.2015 conducted the postmortem examination of the dead body of Qadeer Ahmad son of Rasheed Ahmad (deceased). Dr. Haji Ahmad Durrani (PW-6) ,on examining the dead body of Qadeer Ahmad son of Rasheed Ahmad (deceased) observed the same injuries as mentioned by him in the Medico Legal Examination Certificate (Exh.PM/1) and opined with regard to the cause of death of Qadeer Ahmad son of Rasheed Ahmad (deceased) as under:- "Opinion: After conducting external and internal post-mortem examination, I am of the opinion that injuries No.1 & 2 leading to head injury and damaged to brain matter caused death. Both injuries No.1 and 2 were caused by fire arm and were ante mortem in nature." 7. On 25.06.2016 the learned ADPP gave up the prosecution witnesses namely Shabbir Ahmed, Ghulam Rasool and Azeem Bakhsh as being unnecessary . On 31.08.2016, the learned Assistant District Public Prosecutor closed the prosecution evidence after tendering in evidence the report of Punjab Forensic Science Agency , Lahore (Exh.PQ/1) regarding the analysis of the blood stained earth and the report of Punjab Forensic Science Agency , Lahore (Exh.PQ) regarding the analysis of the crime empties and the recovered weapons. 8. After the closure of prosecution evidence, the learned trial court examined the appellant namely Zahid Murad son of Ali Murad under section 342 Cr.P.C. and in answer to the question why this case against you and why the PWs have deposed against you, the appellant namely Zahid Murad son of Ali Murad replied that he had been involved in the case falsely and was innocent. The appellant namely Zahid Murad son of Ali Murad opted not to get
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himself examined under section 340(2) Cr.P.C. however , got Abdul Hameed 13149/HC (DW-1) examined as a witness in his defence. 9. On the conclusion of the trial, the learned Additional Sessions Judge, Rahim Yar Khan, convicted and sentenced the appellant namely Zahid Murad son of Ali Murad as referred to above. 10. The contention of the learned counsel for the appellant precisely is that the whole case is fabricated and false and the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible, and relevant evidence. Learned counsel for the appellant further contended that the story of the prosecution mentioned in the statements of the witnesses, on the face of it, is highly improbable. Learned counsel for the appellant further contended that the statements of the prosecution witnesses were not worthy of any reliance. The learned counsel for the appellant also argued that the appellant had been involved in the occurrence due to enmity . The learned counsel for the appellant finally submitted that the prosecution has totally failed to prove the case against the accused beyond the shadow of a 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 has proved its case beyond shadow of doubt by producing independent witnesses. They further argued that the deceased died as a result of injuries suffered at the hands of the appellant. They further contended that the medical evidence also corroborated the statements of Haji Khan Muhammad (PW-1) and Faiz Rasool (PW-2). They further argued that the recovery of the Repeater gun (P-3) from the appellant namely Zahid Murad son of Ali Murad also corroborated the ocular account. They further contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offenders with the innocent in this case. Lastly , the learned Deputy Prosecutor General and the learned counsel appearing on behalf of the complainant/respondent No.2 prayed for the rejection of appeal as lodged by the appellant namely Zahid Murad son of Ali Murad. 12. We have heard the learned counsel for the appellant, the learned Deputy Prosecutor General along with the learned counsel for the complainant and with their assistance perused the record and evidence recorded during the trial. 13. We have noted with grave anxiety that the ocular account of the occurrence as furnished by the witnesses namely Haji Khan Muhammad (PW-1),father of Khaleel Ahmed (deceased) and Faiz Rasool (PW-2) , maternal nephew and son in law of Haji Khan Muhammad (PW-1), is flawed beyond reparation and has disfigured the appearance of the whole prosecution case beyond restoration and recognition ,burying it deep under the heavy rubble of obscurity . The statements of both the eye witnesses namely Haji Khan Muhammad (PW-1) and Faiz Rasool (PW-2) are in direct contrast and inconsistent with the observations and the opinion of Dr. Haji Ahmad Durrani (PW-6), who conducted the post mortem examination of the dead bodies of both the deceased namely Qadeer Ahmad son of Rasheed Ahmad and Khaleel Ahmad son of Haji Khan Muhammad. According to the statements of both the witnesses namely Haji Khan Muhammad (PW-1) and Faiz Rasool (PW-2) ,they had seen the accused namely Ali Murad (since acquitted) armed with a pistol and firing the same, hitting Khaleel Ahmad (deceased) on the left side of the his buttock, whereas they had seen the accused namely Shahid Murad (since acquitted), armed with a pistol, firing with the same, hitting Qadeer Ahmad (deceased) on the left side of his head and they had seen the accused namely Mujahid Murad (tried separately as a child under the Juvenile Justice System Ordinance 2000 and convicted), armed with a pistol firing at Qadeer Ahmad (deceased) , hitting him on the left side of his forehead . Haji Khan Muhammad (PW -1) in his examination in-chief stated as under:- "Accused Zahid made a fire shot upon my son Khalil deceased on his left arm while Ali Murad made a fire shot which hit Khalil Ahmad on left side of buttock. Accused Shahid made a fire which hit Qadeer on his left side of head . Mujahid made fire which hit on left side of forehead of Qadeer .." (emphasis supplied). Similarly , Faiz Rasool (PW -2) in his examination in-chief stated as under:- "Zahid Murad made fire shot which hit on the left arm of Khalil Ahmad. Ali Murad made fire shot which hit left side of buttock of Khalil Ahmad. Shahid Murad made a fire shot which hit on the left side of Qadeer Ahmad . Then Mujahid Murad made a fire which hit left side of fore head of Qadeer Ahmad. (emphasis supplied).
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Both the witnesses namely Haji Khan Muhammad (PW-1) and Faiz Rasool (PW-2) remained adamant regarding that they had seen the accused namely Ali Murad (since acquitted) armed with a pistol and firing the same, hitting Khaleel Ahmad (deceased) on the left side of the his buttock, whereas they had seen the accused namely Shahid Murad (since acquitted), armed with a pistol, firing with the same, hitting Qadeer Ahmad (deceased) on the left side of his head and they had seen the accused namely Mujahid Murad (tried separately as a child under the Juvenile Justice System Ordinance 2000 and convicted), armed with a pistol firing at Qadeer Ahmad (deceased) , hitting him on the left side of his forehead. Contrary to the said repeated claim of both the witnesses namely Haji Khan Muhammad (PW-1) and Faiz Rasool (PW-2), Dr. Haji Ahmad Durrani (PW-6), who on 21.11.2015 had conducted the postmortem examination of the dead body of Khalil Ahmad son of Haji Khan Muhammad (deceased) and on 22.11.2015 had conducted the postmortem examination of the dead body of Qadeer Ahmad (deceased) , stated that he had observed only one entry wound on the dead body of the deceased Qadeer Ahmad, whereas the other wound observed by him on the right temporal region of the dead body of the deceased Qadeer Ahmad was an exit wound. Dr. Haji Ahmad Durrani (PW-6) further stated that he had observed two entry wounds on the dead body of Khalil Ahmad deceased, one of which was present on the left arm, whereas the other was present on the pelvic area. The prosecution witnesses namely Haji Khan Muhammad (PW-1) and Faiz Rasool (PW-2) did not explain as to how the deceased namely Khalil Ahmed received an entry wound on his pelvic area. Dr. Haji Ahmad Durrani (PW-6) did not observe any entry wound on the left side of the buttock of the dead body of the deceased Khalil Ahmad. Dr. Haji Ahmad Durrani (PW-6) ,on examining the dead body of Khalil Ahmad son of Haji Khan Muhammad (deceased) observed as under:- "Description of injuries 1. Lacerated wound on middle portion of left fore-arm laterally with inverted margins 7.5 x 4 cm. Slight burning seen around wound. Cartridge was present inside. Left radius wound was fractured at site of injury .No.1 (entry wound). 2. Lacerated wound on middle portion of left forearm medically with everted margins 8 x 5 cm (exit wound). 3. Seven circular penetrating wounds with inverted burned margins close to each other in 6 x 6 cm diameter area on left pelvic area laterally measuring 1 x 1 cm each . Blood oozing out from these wounds Dr. Haji Ahmad Durrani (PW-6) while examining Qadeer Ahmad son of Rasheed Ahmad (then injured later deceased) had observed as under:- " Description of Injuries. 1. Circular wound with everted margin s right temporal are of head 3 cm from right ear measuring 1.5 x 1.5 cm (exit wound). 2. Circular penetrating wound with inverted margins on left frontal area of head 3 cm from mid line, 8 cm above from left eye brow measuring 1 x 1 cm (entry wound)." (emphasis supplied) Dr. Haji Ahmad Durrani (PW-6), during cross-examination, further explained as under:- "I did not observe any injury on buttocks of deceased Khalil Ahmad. ....................................................... There was only one entry wound on the body of deceased Qadeer Ahmad at left frontal area of head. The injury No.1 is the exit wound of Injury No.2." (emphasis supplied) . The said opinion of Dr. Haji Ahmad Durrani (PW-6) that he had observed only one entry wound on the dead body of the deceased Qadeer Ahmad, whereas the other wound observed by him on the right temporal region of the dead body of the deceased Qadeer Ahmad was an exit wound and that he did not observe any entry wound on the left side of the buttock of the dead body of the deceased Khalil Ahmad rather had observed an entry wound on the pelvic region of the dead body of Khalil Ahmad (deceased) , was never challenged by the prosecution either during the investigation of the case or during the course of trial, though the same was in direct disparity with what was stated by the prosecution witnesses namely Haji Khan Muhammad (PW-1) and Faiz Rasool (PW-2) . The prosecution very well knew that the observations and opinion of Dr. Haji Ahmad Durrani (PW-6) were in themselves sufficient to bring down the whole edifice of the prosecution case as narrated by the witnesses namely Haji Khan Muhammad (PW-1) and Faiz Rasool (PW-2), however , even being in knowledge of this fact, no effort was made by
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the prosecution witnesses to challenge the observations and opinion of Dr. Haji Ahmad Durrani (PW-6) or if the same could not be challenged, then to explain the same. We have noted that during the course of trial the prosecution witnesses failed to explain as to why was there such a huge, gaping and all consuming, inexplicable and baffling error in the statements of the prosecution witnesses namely Haji Khan Muhammad (PW-1) and Faiz Rasool (PW-2) who proceeded to attribute causing of injuries by the accused which injuries did not exist and failed to explain an injury which did exist. Despite our repeated queries, both the learned Deputy Prosecu tor General and the learned counsel for the complainant/respondent No.2 have failed to explain the said discrepancies in the prosecution evidence. In this manner , irreconcilable and distressing contradictions have cropped up in the ocular account of the occurrence as narrated by the prosecution witnesses namely Haji Khan Muhammad (PW-1) and Faiz Rasool (PW-2) and the medical evidence as furnished by Dr. Haji Ahmad Durrani (PW-6). These contradictions in the ocular account of the occurrence, as narrated by Haji Khan Muhammad (PW-1) and Faiz Rasool (PW-2) and the medical evidence as furnished by Dr. Haji Ahmad Durrani (PW-6), clearly establish that the prosecution witnesses namely Haji Khan Muhammad (PW-1) and Faiz Rasool (PW-2) miserably failed to prove their presence at the place of occurrence , at the time of occurrence. Had the witnesses namely Haji Khan Muhammad (PW-1) and Faiz Rasool (PW-2) seen the occurrence then there did not exist any possibility that they would have fallen into error, stating the detail of the occurrence in a manner which proved to be in direct contrast to the medical evidence brought on record. In this regard guidance is sought from the principle enunciated by the august Supreme Court of Pakistan in the case of "Amin Ali and another Vs. The State" (2011 SCMR 323) where the august Supreme Court of Pakistan was pleased to reject the evidence of injured witnesses and held as under:- "11. All the three witnesses deposed that the deceased had received three injuries, but the Medical Officer found six injuries on the person of the deceased. One of them had blackening. None of the witnesses deposed that any of the appellants had caused the injuries from a close range but on the contrary in the site plan the place of firing has been shown 8 feet away from the deceased. Thus from such a distance injury with blackening cannot be caused as it can be caused from a distance of less than 3 feet as per Modi's Medical Jurisprudence. The Medical Officer did not show as to which of the injury was entry or exit wound on the person of the deceased. The medical officer stated that metalic projectile was recover ed from wound No.1/B which was an exit wound. If it was an exit wound then the metalic projectile would have been out of the body . The presence of metalic projectile in the body clearly establishes the fact that it is not an exit wound but an entry wound. The medical officer has not shown that any of the injuries had inverted or averted margins so as to ascertain as to which of the injuries entry is or exit wound. Thus on this count there is a conflict between the medical and oral evidence. Furthermore, according to Medical Officer, the P.W.1S had four injuries out of them two were entry and two were exit wounds but the P.Ws. 13 and 14 deposed that the injured had received three injuries. Thus the P.Ws. have shown one exit wound as entry wound . With regard to the injured Tanveer Hussain, the Medical Officer showed two injuries one entry wound on the chest and one exit wound on the back but all the three eye-witnesses deposed that P.W.14 had received two injuries on his chest. As regards injuries on the person of Mst. Maqbool Bibi. The Medical Officer found one entry wound on her back with blackening, whereas P.Ws. 13, 14 and 15 deposed that the fire shot was fired from the roof of the shop. Entry wound with blackening marks cannot be caused from such a long distance. From the above position it is manifest that the ocular testimony is in conflict with the medical evidence. Thus, the deceased and injured did not receive the injuries in the manner , as alleged by the prosecution.…
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