Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: QURBAN HUSSAIN & another VS Respondent: STATE & another
Court Name: Lahore High Court Judge(s): Malik Shahzad Ahmad Khan, Ch. Abdul Aziz Title: QURBAN HUSSAIN & another vs STATE & another Case No.: Crl. Appeals Nos. 280 & 458 and Murder Reference No. 34 of 2014 Date of Judgment:2018-05-24 Reported As: 2020 YLR 546, PLJ 2019 Cr.C. 1499 Result: Appeals dismissed
Judgment ORDER Malik Shahzad Ahmad Khan, J:--This judgment shall dispose of Criminal Appeal No. 280 of 2014 filed by Qurban Hussain (appellant) against his conviction and sentence, Criminal Appeal No. 458 of 2014, filed by .Mst. Ghulam Ruqqia complainant against the acquittal of Liaquat Ali co-accused and Murder Reference No. 34 of 2014 sent by the learned trial Court for confirmation or otherwise of the Death sentence of Qurban Hussain (appellant). We propose to disposes of all these matters by this single judgment as these have arisen out of the same judgment dated 02.06.2014, passed by the learned Sessions Judge, Chakwal. 2. Qurban Husain (appellant) and Liaquat Ali (co-accused since acquitted) were tried in case FIR 325 dated 02.08.2011, registered at Police Station Sardar, District Chakwal in respect of the offences under Section 302/34 PPC. After conclusion of the trial, the learned trial Court Vide its judgment dated 02.06.2014 has convicted and sentenced Qurban Hussain appellant as under:-- Under Section 302(b) PPC to 'Death' for committing Qatl-i-Amd of Muhammad Zameer (deceased). He was also ordered to pay Rs.1,00,000/- (rupees one hundred thousand only) to the legal heirs of the deceased as compensation under Section 544-A of Cr .P.0 and in default thereof to suffer simple imprisonment for six months. The learned trial Court however , vide the same judgment acquitted Liaquat Ali co-accused while extending him the benefit of doubt. 3. Brief facts of the case as given by the complainant Muhammad Jahangir (PW-10) in the written application (Ex- PI), on the basis of which the formal FIR (Ex.PG) was chalked out are that the complainant was resident of Mauza Ordhwal. On 02.08.201 1, he (complainant) anlog with Ghulam Murtaz (PW-11), Muhammad Zameer son of Sher Khan (given up PW and his brother Muhammad Zameer (deceased) went to plough their fields situated in village Odharwal near Sargodha Bye-Pass road and after ploughing the fields they were returning to their home, and when at about 11:30 a.m. they reached near the main road of Sargodha Bye-Pass, Qurban Hussain (appellant) and
---
## Page 2
Liaquat Ali (co-accused since acquitted) came there on their motorcycle and raised lalkara to the brother of the complainant, namely Muhammad Zameer (deceased) to teach him a lesson for quarreling. About 02 months prior to the occurrence, Qurban Hussain (appellant) and Muhammad Zameer (deceased ) had quarreled with each other . Qurban Hussain (appellant) then, took out his pistol .30 bore from his fold (of shalwar) and made two consecutive fire shots. Liaquat Ali (co-accused since acquitted) also took out pistol from his fold (of Shalwar) and made two fire shots. A fire Shot made by Qurban Hussain (appellant) hit at the left eye of Muhammad Zameer (deceased) whereas a fire shot made by Liaqut Ali (co-accused since acquitted) hit at the middle of the hip of Muhammad Zameer (deceased) due to which Muham mad Zameer (deceased) fell on the ground. The complainant And his maternal uncle Ghulam Murtza (PW-11) and maternal cousin Muhammad Zameer (given up PW) went forward while viewing the occurrence. The accus ed persons fled away from the spot while giving abuses. It was further alleged in the FIR that Qurban Hussain (appellant) and Liaquat Ali (co-accused since acquitted) committed the murder of Muhammad Zameer (decesed). Motive behind the occurrence was a previous quarrel. 4. The appellant Qurban Hussain was arrested by Ijaz Abbas, SI (PW-13) on 07.10.201 1. On 17.10.201 1, the appellant Qurban Hussain led to the recovery of pistol (P-1), which was taken into possession by Ijaz Abbas, SI (PW-13) vide recovery memo. Ex.PB. After completion of investigation, the challa n was prepared and submitted before the learned trial Court. The learned trial Court, after observing legal formalities, as provided under the Code of Criminal Procedure, 1898 framed charge against the appellant and his co-accused on 24.11.201 1, to which they pleaded not guilty and claimed trial. 5. In order to prove its case, the prosecution produced 13 witnesses during the trial. Muhammad Jahangir complainant (PW -10) and Ghulam Murtza (PW -11) are the witnesses of ocular account. The medical evidence was furnished by Dr . Muhammad Haleem, (PW -8). Ahmad Sher , SI (PW -12) and tjaz Abbas, SI (PW -13) are the Investigating Of ficers of this case. Zafar Mehmood (PW -5) is the witness of recovery of pistol on the pointation of the appellant vide memo. Ex.PB. Hamid Rasheed 525/HC (PW-1), Samand Khan Constable (PW-2), Rehmat Ullah HC (PW-3), Muhammad Safdar Patwari Halqa (PW-4), Tanveer Abid (PW-6), Azmat Ali Constable (PW-7) and Muhammad Hussain shah, SI (PW- 9) are the formal witnesses. The prosecution also produced documentary evidence in the shape of scaled site-plans of the place of occurrence (Ex. PA) and Exh. PA/1, memo. of possession of pistol 30 bore P1 (Ex. PB), memo. of possession of last worn clothes of the deceased (Ex. PC), post-mortem report of the deceased (Ex. PD), pictorial diagrams Ex. PD/1 and Ex. PD/2, application for Post-mortem of the deceased (Exh. PE), inquest report of Muhammad Zameer deceased (Exh. 'PF), copy of FIR of the instant case (Exh. PG), copy of FIR of the motive occurrence (Exh. PH), application of Muhammad Jahangir (complainant) for registration of FIR (Exh. PI), memo . of possession of Honds 125 motorcycle ( Exh. PJ), memo. of possession of blood stained earth (Ex. PK), memo. of possession of empties of pistol .30 bore (Ex. PL), memo. of possession of Tractor Fiat/480 (Ex. PM), rough site-plan without scale of the place of occurrence (Ex. PN), site-plan without scale of place of recovery of Honda 125 (Ex. PO), site-plan without scale of place of pistol .30 bore (Ex. PP), report of Forensic Science Agency , Punjab (Ex. PQ), report of Serologist (Ex.PS), report of Chemical Examiner , Punjab Lahore (Ex.PR) and closed its evidence. 6. The statement of the appellant under Section 342 of Cr.P.C. was recorded. He refuted the allegations levelled against him and professed his innocence . While answering to a question that 'Why this case against you and why the PWs have deposed against you " the appellant replied as under:-- "I have been falsely involved in this case, in the background of previous enmity and grudge, which the complainant was carrying on account of the registration of criminal case FIR (Exh. PH). In fact, this was an unseen occurrence. The deceased was murdered in a road side dacoit early in the morning on fatefu l day. Deceased was a well off person and despite of this fact, nothing like valuable article, i.e. mobile phone, watch, money wallet, ring etc were recovered by Investigating Officer or any other person from his dead body . The story mentioned by the complainant is afterthought and this act was also nega ted by the documentary evidence which is Exh. DD. The dead body was shifted by Rescue 1122 from the place of occurrence at about 12:20 p.m. which is much prior to alleged story narrated in the FIR and alleged witnesses reached in the hospital at subsequent stage. Since the tracing of
---
## Page 3
unknown culprits was a difficult task for the police, therefore, the police in conniv ance with the complainant party who were having suspicions and ill-con ceived motives against me. In the background of the aforementioned grudge, falsely involved me in this case through consultation, deliberation and concoction on the part of the police and the prosecution." The appellant Qurban Hussain neither made statement on oath as envisaged under Section 340 (2), Cr.P.C. nor produced evidence in his defence. The learned trial Court vide its judgment dated 02.06.2014, while acquitting Liaquat Ali co-accused, convicted and sentenced the appellant as mentioned and detailed above. 7. It is contended by learned counsel for the appellant that the appellant is absolutely innocent and has falsely been implicated in this case by the complainant party; that the occurrence was unseen which took place at a deserted place in we hours of the morning and this fact is also established from the time that elapsed between the death and post-mortem examination, mentioned by Dr. Muhammad Haleem (PW-8); that there is gross delay of 02 hours and 05 minutes in lodging the FIR, whereas, the occurrence took place on a metalled road which was situated at a distance of only 05 kilometers from the police station therefore, the above mentioned delay in lodging the FIR has created serious doubt regarding the truthfulness of the prosecution story; that eye- witnesses of the prosecution, namely, Muhammad Jahangir complainant (PW-10) and Ghulam Murtaza (PW-11) could not given any plausible reason for their presence at the spot at the relevant time and as such, they are chance witnesses therefore, their evidence is not worthy of reliance; that there is only one person required to drive a tractor and plough the fields and as such, there was no need of presence of the eye-witnesses of the prosecution at the crime scene at the relevant time; that the story narrated by the complainant in the FIR is in conflict with the medical evidence because according to the said story one fire shot made by Liaquat Ali (co- accused since acquitted) on the hip of Muhammad Zameer deceased, was not found by the Medical Officer at the time of post-mortem examination of the deceased; that as the prosecution evidence has been disbelieved qua Liaquat Ali co-accused therefore, the same evidence cannot be believed against Qurban Hussain appellant without independent corroboration which is very much lacking in this case; that the prosecution witnesses made dishonest improvements in their statements in order to bring their evidence in line with the prosecution case by stating that Muhammad Zameer Deceased alighted from the tractor prior to the occurrence and by mentioning that the motorcycle used during the occurrence by the accused was owned by Qurban Hussain appellant and they were confronted with their previous statements and dishonest improvements made by them were brought on the record therefore, the evidence of such eye-witnesses is not reliable; that dead body of Muhammad Zameer deceased was not identified by the eye-witnesses of the prosecution, namely, Muhammad Jahangir complainant (PW-10) & Ghulam Murtaz (PW-11) and the same was identified by Tanveer Abid (PW-6) and Niaz Ali (given up PW) which shows that the eye-witnesses were not present at the time of occurrence; that it has also been brought on the record that the dead body of Muhammad Zameer deceased was taken to the hospital by the staff of Emergency Service "1122" which also negates the presence of eye-witnesses at the spot; that as per evidence of Ghulam Murtaz (PW-11), Muhammad Zameer deceased and Muhammad Jahangir complainant (PW-10) alighted from the tractor in order to beg pardon from the appellant but the blood was also seen on the tractor which further contradicted the evidence of the above mentioned eye-witness; that as per prosecution case in the earlier occurrence of motive, it was Muhammad Jahangir complainant (PW-10) who dragged Qurban Hussain (appellant) by putting a rope around his neck and if the, above-mentioned eye-witness (Muhammad Jahangir PW-10 was present at the spot at the relevant time than he would have been the prime target of the appellant but Muhammad Jahangir complainant (P.W.-10) did not receive a single scratch on his body which shows that he was not present at the spot at the time of occurrence; that as per evidence of the prosecution eye-witnesses, fire shots made by the appellant and his co- accused also landed on the tractor, driven by Muhammad Zameer deceased but no mark of fire shots on the tractor of the deceased were noted by the Investigating Officer; that pistol (P-1) has allegedly been recovered from the possession of Qurban Hussain appellant but as per report of the Punjab Forensic Science Agency, Lahore (Ex.PQ) the above-mentioned pistol (P-1) along with the empties was deposited together in the office of
---
## Page 4
FSA on 24.12.2011, therefore, the above-mentioned prosecution evidence qua the recovery of pistol (P-1) and positive report of Punjab Forensic Science Agency, Lahore (Ex.PQ) is of no avail to the prosecution; that the prosecution miserably failed to prove its case against the appellant beyond the shadow of doubt therefore, this appeal may be accepted and the appellant may be acquitted form the charge and the murder reference be answered in the negative. 8. On the other hand, it is argued by learned Additional Prosecutor General assisted by learned counsel for the complainant that the occurrence in this case took place on 02.08.2011 at 11:30 a.m. and the matter was reported to the police by Muhammad Jahangir complainant (PW-10) through written application (Ex.PI), on the same day at 01:15 p.m. and the formal FIR (Ex.PG) was also lodged on the same day at 01:35 p.m; that as the FIR was promptly lodged therefore, the same rules out the possibility of any concoction or deliberation; that the occurrence took place in the broad day light and as the appellant was previously known to the complainant party therefore, there was no chance of any mis-identification of the appellant; that acquittal of Liaquat Ali co- accused is of no avail to the appellant because the role attributed to the above-mentioned Liaquat Ali co- accused in the FIR of Making fire shot on the hip of Muhammad Zameer deceased was not supported by the medical evidence, whereas, the role assigned to Qurban Hussain appellant of making fire shot on the left eye of Muhammad Zameer deceased has fully been supported by the medical evidence; that prosecution case against the appellant is further corroborated by the recovery of 30 bore pistol (P-1) and positive report of Punjab Forensic Science Agency, Lahore (Ex.PQ); that the motorcycle which was used during the occurrence was also recovered from the possession of the appellant; that the motive of previous enmity between Qurba Hussain appellant and Muhammad Hussain appellant and Muhammad Zameer deceased was also proved through documentary evidence i.e. previous FIR Ex.PH and reliable oral evidence of the prosecution; that there is no substance in the appeal filed by Qurban Hussain (appellant); that as Qurban Hussain appellant has committed a heinous offence therefore, there is no mitigating circumstances in this case hence, his appeal may be dismissed, conviction and sentence of the said appellant may be upheld and maintained and murder reference be answered in the affirmative. Insofar as Criminal Appeal No. 458 of 2014, filed by the complainant against the acquittal of Liaquat Ali co-accused is concerned, learned counsel for the complainant does not press the said appeal. 9. We have heard the arguments of learned counsel for the parties and have also gone through the evidence available on the record with their able assistance. 10. Prosecution story , as mentioned in the written application of Muhammad Jahangir complainant (Ex.PI) on the basis of which the formal FIR (Ex.PG) was lodged, has already been reproduced in para No.3 of this judgment therefore, there is no need to repeat the same. 11. The occurrence in this case took place on 02.08.201 1 at 11:30 a.m. The matter was reported to the police by Muhammad Jahangir complainant (PW-1) through written application (Ex.PI) on the same day at 01:15 p.m, whereas, the formal FIR (Ex.PG) was also lodged on the same day i.e on 02.08.2 011 at 01:35 p.m. The distance between the place of occurrence, the place of occurrence and its distance from the police station, we are of the view that the FIR was promptly lodged in this case and there was no' deliberate or conscious delay reporting the matter to the police. 12. The ocular account of the prosecution was furnished by Muhammad Jahangir complainant (PW-10) and Ghulam Murtaza (PW-11). The occurrence in this case took place at Sargodha Bye-Pass within the area of village Odharwal police section Sadar District Chakwal. Muhammad Jahangir complainant (PW-10) is also resident of village Odharwal, where the occurrence took place. Although Ghulam Murtaza (PW-11) is resident of village Chakora but during cross-examination of Muhammad Jahangir complainant (PW-10), it was brought on the record that his village is situated only at a distance of 01 kilometer from village Odharwal, where the occurrence took place. Both the abovementioned witnesses being brother and maternal uncle, of the deceased respectively, have given plausible reason for their presence at the crime scene at the time of occurrence by stating that on the day of occurrence, they along with Muhammad Zameeer deceased went to plough their land on a tractor which was being driven by Muhammad Zameer deceased and after ploughing the land when they
---
## Page 5
were coming back to their home and they reached at Sargodha Bye-Pass Road, they were intercepted by the accused and the occurrence was committed. Tractor (P-7) of Muhammad Zameer deceased was recovered from the place of occurrence on the day of occurrence i.e. on 02.08.2011 through recovery memo. (Ex.PM) and the recovery of the said tractor was also proved through the evidence of Ghulam Murtaza (PW-11). It has been argued by learned counsel for the appellant that this fact has been brought on the record that the dead body of Muhammad Zameer (deceased) was taken to the hospital by the Staff of Emergency Service 1122, which shows that the dead body was not brought to the hospital by the above-mentioned eye-witnesses, and it establishes that the said eye-witnesses were not present at the crime scene, at the time of occurrence but I have noted that Muhammad Jahangir (PW-10) has himself stated during his cross-examination that an, unknown person had called rescue 1122, after the occurrence. Even otherwise, the above-mentioned eye- witnesses were not expected to take themselves the dead body of Muhammad Zameer (deceased) to the hospital and if the dead body of the deceased was brought to the hospital in the ambulance of the above- mentioned Emergency Service, then the same does not negate the presence of the above-mentioned eye- witnesses, at the time of occurrence. Moreover, the minor contradictions in the statements of the eye-witnesses regarding the fact that the said eye-witnesses have stated that Muhammad Zameer (deceased) alighted from his tractor, prior to the occurrence whereas the blood was also seen on the tractor by the Investigating Officer is not sufficient to discard their evidence because both the eye-witnesses have not stated that Muhammad Zameer (deceased) after alighting from his tractor, covered some distance prior to the occurrence and if he was standing near to his tractor, then presence of blood on the tractor is quite natural. The other argument advance by learned counsel for the appellant that one of the eye-witnesses has stated that some fire shots made by the appellant also hit the tractor of the deceased, whereas no mark of bullet was noticed on the tractor by the Investigating Officer, has no substance because the same has no bearing on the material aspects of the case like the time of occurrence, the manner in which the occurrence took place, weapon used by the appellant and the role attributed to the appellant during the occurrence. Moreover, it is by now well settled that an accused cannot be extended any benefit due to any weakness on the part of the Investigating Officer, which weakness has no hearing on the merits of the case. The occurrence in this case took place in the board day light i.e. on 2.8.2011 at 11.30 a.m. The appellant was earlier known to the above-mentioned eye-witnesses as there was previous enmity between the parties which has been proved on the record through earlier FIR (Ex.PH) and as such there was no chance of any mis- identification of the appellant. The aforementioned eye-witnesses were cross-examined at length but their evidence could not be shaken and they corroborated each other on all material aspects of the case. Their evidence is confidence inspiring and trustworthy. 13. The appellant also produced Kamran Rasheed (CW-1) in his defence, who was Incharge, Emergency Office Rescue 1122, Chakwal, who stated that on 2.8.2011, he received a telephone call regarding the presence of a dead body on Sargodha Bhoon Road, whereupon he reached at the spot and found that the dead body of Muhammad Zameer (deceased) was lying un-attended on the road. During his cross-examination by learned DPP, assisted by learned counsel for the complainant, he conceded that he never joined the investigation of this case as a witnesses. He further admitted that one Arif Butt was the Station Coordinator in the office of Rescue 1122, Chakwal and after his resignation, he was working as Assistant with Ch. Jalil-ur-Rehman, Advocate, who was representing the accused in this case. Although he furnished a report (Ex.DD) regarding the service, provided by the Rescue 1122 for shifting the dead body of Muhammad Zameer (deceased) to the hospital but he conceded during his cross-examination that the said report and entries referred therein were not in his handwriting. In the light of above, the above-mentioned defence evidence produced by the appellant was not worthy of reliance and the same rightly discarded by the learned trial Court. 14. The medical evidence of the prosecution was furnished by Dr. Muhammad Haleem (PW-8). He stated that on 2.8.201 1, he conducted postmortem examination on the dead body of Muhammad. Zameer deceased and found the following injuries on his body:
---
## Page 6
1. A lacerated wound/eye ball "left side" was missing. Color of abrasion found around the wound. All the margins were inverted. It was an entry wound. 2. Evidence of bleeding from both ears was there. As per opinion of Dr. Muhammad Haleem (PW-8), the time that elapsed between the injury and death was immediate i.e., less than five mintues, whereas the time that elpased between the death and the postmortem examination was 6 to 12 hours. As per postmortem. report (Ex.PD), Dr. Muhammad Haleem (PW-8), conducted postmortem examination on the dead body of Muhammad Zameer (deceased) on 2.8.2011 at 7.00 p.m (as stated by Dr. Muhammad Haleem PW-8 in his cross-examination). As per prosecution evidence, the occurrence in this case took place on 2.8.2011 at 11.30 a.m and as such the time that elapsed between the death and the postmortem examination of the deceased as given by Dr. Muhammad Haleem (PW-10), coincide with the time of occurrence, mentioned by the eye-witnesses in this case. According to the evidence of above-mentioned eye- witnesses namely Muhammad Jahangir (PW-10) and Ghulam Murtaza (PW-11) out of the different fire shots made by Qurban Hussain appellant, one fire shot landed on the left eye of Muhammad Zameer deceased. The above-mentioned medical evidence has substantially supported the ocular account furnished by .Muhammad Jahangir complainant (PW-10) and Ghulam Murtaza (PW-11) to the extent of role attributed to Qurban Hussain appellant. 15. Insofar as the acquittal of Liaquat Ali co-accused is concerned, we have noted that in the FIR, the said co- accused was assigned the role of making a fire shot which landed on middle of the hop of Muhammad Zameer deceased but the abovementioned eye-witnesses at the time of recording of their statements did not assign any injury to the abovementioned co-accused. Moreover, as per medical evidence furnished by Dr. Muhammad Haleem (PW-8), there was no injury on the hip of Muhammad Zameer deceased and as such, the prosecution ease as set forth in the FIR (Ex. PG) was not supported by the medical evidence to the extent of Liaqat Ali co- accused (since acquitted), whereas the same has fully been supported against the appellant by ,the medical evidence and such, case of Qurban Hussain appellant is distinguishable from the case of the abovementioned acquitted co-accused therefore, acquittal of Liaquat Ali co-accused is of no avail to Qurban Hussain appellant. Conflict between ocular account and medical evidence of the prosecution to the extent of injury attributed to Liaqat Ali co-accused (since acquitted) and discarding of the prosecution evidence of eye-witnesses in respect of the abovementioned co-accused is also of no avail to Qurban Hussain appellant, because the principal of "falsus in uno falsus in omnibus" has no universal application and it is by now well settled that the Courts in our country have to, "sift the grins from the chaff'. As the prosecution case against Liaqat Ali co-accused (since acquitted)…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.