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Official Citation: 2024 LHC 6239
Court / Jurisdiction: Lahore High Court
Year of Decision: 2024
Decision Date: 2024-12-05
Parties: The State, Riaz Hussain vs Riaz Hussain, The State
Ruling Summary: This decision was rendered by the Lahore High Court on 2024-12-05, officially reported as 2024 LHC 6239. In this matter between The State, Riaz Hussain and Riaz Hussain, The State, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2024LHC6239
Court Name: Lahore High Court Judge(s): Ch. Abdul Aziz, Sadiq Mahmud Khurram Title: The State, Riaz Hussain vs Riaz Hussain, The State Case No.: Murder Reference No.13 of 2021, Criminal Appeal No. 312-J of 2021 Date of Judgment:2024-12-05 Reported As: 2024 LHC 6239 Result: Murder Reference Answered in Negative
JUDGMENT
JUDGMENT SADIQ MAHMUD KHURRAM, J.-Riaz Hussain son of Muhammad Bakhsh (convict) was tried by the learned Additional Sessions Judge, Rajanpur in the case F.I.R. No. 676 of 2014 dated 25.11.2014 registered at Police Station Fazilpur, District Rajanpur in respect of offences under sections 302, 148 and 149 P.P.C. for committing the Qatl-i-Amd of Sajjad Hussain alias Pannu son of Allan Khan (deceased). The learned trial court vide judgment dated 13.04.2021, convicted Riaz Hussain son of Muhammad Bakhsh (convict) and sentenced him as infra: Riaz Hussain son of Muhammad Bakhsh : Death under section 302(b) P.P.C. as Tazir for committing Qatl-i-Amd of Sajjad Hussain alias Pannu son of Allan Khan (deceased) and directed to pay Rs.200,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased and in case of default thereof, the convict was directed to further undergo six months of simple imprisonment. The convict was ordered to be hanged by his neck till death. 2. Feeling aggrieved, Riaz Hussain son of Muhammad Bakhsh (convict) lodged Criminal Appeal No.312-J of 2021 through jail assailing his conviction and sentence. The learned trial court submitted Murder Reference No.13 of 2021 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Riaz Hussain son of Muhammad Bakhsh. We intend to dispose of the Criminal Appeal No.312-J of 2021 and Murder Reference No.13 of 2021 through this single judgment. 3. Precisely, the necessary facts of the prosecution case, as narrated by Ghulam Qadir (PW-13) , the eye witness of the case, are as under:-
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"States that on 25.11.2014, I alongwith my father Taj Muhammad complainant (since dead) and Haji Muhammad were sitting at the brokerage (Arhat) of Sajid Hussain son of Sadiq Muhammad, in front of that brokerage (Arhat) there was brokerage (Arhat) of Sajjad Hussain alias Punnu. At about 1.45 p.m, Riaz accused armed with Kalashnikov present in court, Zaffar alias Allah Ditta (already tried) armed with Kalashnikov by one motorcycle, while Sultan, Ameen (already tried) both armed with Kalashnikovs by second motorcycle, Talib Hussain and Ameer Bakhsh (already tried) both armed with Kalashnikov by third motorcycle came on brokerage (Arhat) of Punnu Khan. They alighted from their respective motorcycles and Ameer Bakhsh went on back of brokerage (Arhat). In our view, Riaz Hussain accused made a fire with his Kalashnikov which hit Sajjad Hussain alias Punnu khan on right side of his /chest. Sajjad Hussain alias Punnu khan tried to stand up from the cot but Talib Hussain made fire from his Kalashnikov which hit Sajjad Hussain alias Punnu Khan on his ribs under left arm pit. Zaffar alias Allah Ditta made fire shot with Kalashnikov which hit him on right side of his belly. Sultan made a fire from his Kalashnikov which hit on his right bicep. Riaz accused made second fire with his Kalashnikov which hit him on his right thigh. Ameen made fire shot from his Kalashnikov which hit on outer side of right thigh. Talib Hussain made a fire from his Kalashnikov which hit on little above of right knee. Ameer Bakhsh accused who was behind the brokerage (Arhat) kept on making aerial firing continuously. When I, my father and Haji Muhammad tried to go to the place of occurrence, all the accused persons threatened us of dire consequences. Sajjad Hussain alias Punnu Khan fell down on the ground while all the accused persons while making aerial firing fled away from the place of occurrence by their motorcycles towards northern side. On hearing the firing neighbors, shop keepers and passersby attracted to the place of occurrence. We got boarded Sajjad Hussain alias Punnu khan on a private Dalla and brought him to hospital Fazilpur where he succumbed to the injuries. Motive behind the occurrence is that there was an FIR of murder of brother of Riaz Hussain accused present in court against persons of 5/6 tribes including our relatives and due to that grudge all the accused persons committed the murder of Sajjad Hussain alias Punnu Khan due to suspicion that Sajjad Hussain alias Punnu was involved in the said murder case. Police came at the place of occurrence and collected blood stained soil vide recovery memo Ex.P-G after making into sealed parcel. I.0 also collected 11 crime empties (P-6/1-11) vide recovery memo Ex.P-H and blood stained cot P-7 vide recovery memo Ex.P.J. I and Haji Muhammad attested the above mentioned recovery memos by signing the same. I.O recorded my statement under section 161 Cr.P.C in this regard." 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 and the accused was sent to face trial. The learned trial court framed the charge against the accused on 05.11.2020, 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 Ghulam Qadir (PW-13) and Haji Muhammad (PW-14). Akhtar Abbas 509/HC (PW-2) stated that on 25.11.2014, he escorted the dead body of the deceased to the hospital and received the last worn clothes of the deceased from the Medical Officer after the post mortem examination of the dead body of the deceased. Wahid Bakhsh, ASI (PW-3) stated that on 25.11.2014, he recorded the formal F.I.R. (Exh.PB). Tariq Raheem 1040/C (PW-4) stated that on 26.03.2015, he made his report (Exh.PC/1) upon the non-bailable warrants of arrest (Exh.PC) issued of the appellant and on 29.03.2015, he pasted the copy of the proclamation (Exh.PD) at the relevant places. Javed Iqbal 121/C (PW-5) stated that on 26.07.2020, the appellant got recovered Kalashnikov rifle (P-4) and five live bullets (P-5/1-5). Ghulam Qasim, Patwari (PW-9) prepared the scaled site plan of the place of occurrence (Exh.PL). Mahmood Ahmad 1142/HC (PW-11) stated that on 26.07.2020, Ashiq Hussain, SI (PW-10) handed over to him a sealed parcel said to contain the recovered Kalashnikov rifle and empties and on 14.08.2020, he
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handed over the said sealed parcel to Ashiq Hussain, SI (PW10) for its onward transmission to the office of the Punjab Forensic Science Agency, Lahore . Muhammad Usman (PW-12) stated that on 25.11.2014, he identified the dead body of the deceased at the time of its post mortem examination and the Medical Officer handed over the last worn clothes of the deceased to the police official after post mortem examination. Kazim Hussain, SI (PW-6) investigated the case from 25.11.2014 till 12.12.2014 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court. Ashiq Hussain, SI (PW-10) investigated the case from 12.07.2020 till 15.09.2020, arrested the appellant on 12.07.2020, 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. Abdul Ghafoor (PW-7) examined, who on 25.11.2014 was posted as Medical Officer at RHC, Fazilpur and on the same day conducted the postmortem examination of the dead body of Sajjad Hussain alias Pannu son of Allan Khan (deceased). Dr. Abdul Ghafoor (PW- 7), on examining the dead body of Sajjad Hussain alias Pannu son of Allan Khan (deceased) observed as under:- " EXTERNAL EXAMINATION. Mouth and eyes were closed, no rigor mortis and post mortem staining was present. There were present seven fire arm entries wound on the front of chest, arm and abdomen, and thighs present. Blackening and burning were also present. There were five fire arm wound of exist present on the back of the body. INTERNAL EXAMINATION. Ribs, the pleurae, right lung, left lung, pericardium, blood vessels, abdominal wall, peritoneum, diaphragm, stomach, small intestines, large intestine, liver, spleen and right kidney were damaged. There was also fracture of the right humerus and femur. CONCLUSION. The death occurred due to the damage of heart, lungs, liver, spleen, and major blood vessels." 7. On 09.04.2021, the learned Deputy District Public Prosecutor gave up the prosecution witnesses as being unnecessary and closed the prosecution evidence after tendering in evidence the reports of Punjab Forensic Science Agency, Lahore (Exh. PM, Exh.PN), copy of F.I.R. 21 of 2011 (Exh.PO) and copy of F.I.R. No. 146 of 2021 (Mark-A) . 8. After the closure of prosecution evidence, the learned trial court examined the appellant namely Riaz Hussain son of Muhammad Bakhsh under section 342 Cr.P.C. and in answer to the question why this case against you and why the P.W.s have deposed against you, he replied that he had been involved in the case falsely and was innocent. The appellant namely Riaz Hussain son of Muhammad Bakhsh opted not to get himself examined under section 340(2) Cr.P.C. and did not adduce any evidence in his defence. 9. At the conclusion of the trial, the learned Additional Sessions Judge, Rajanpur convicted and sentenced the appellant as referred to above. 10. The contention of the learned counsel for the appellant precisely was that the whole case was 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, was 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 submitted that the recovery of the Kalashnikov rifle (P-4) was full of procedural defects, of no legal worth and value, and was the result of fake proceedings. The learned counsel for the appellant also argued that the appellant had been involved in the occurrence only on suspicion. The learned counsel for the appellant finally submitted that the
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prosecution had 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 learned counsel for the complainant contended that the prosecution has proved its case beyond the shadow of doubt by producing independent witnesses. The learned Deputy Prosecutor General along with the learned counsel for the complainant, further argued that the deceased died as a result of injuries suffered at the hands of the appellant namely Riaz Hussain. The learned Deputy Prosecutor General along with the learned counsel for the complainant, further contended that the medical evidence also corroborated the statements of Ghulam Qadir (PW-13) and Haji Muhammad (PW-14) . The learned Deputy Prosecutor General along with the learned counsel for the complainant, further argued that the recovery of the Kalashnikov rifle (P-4) from the appellant namely Riaz Hussain also corroborated the ocular account. The learned Deputy Prosecutor General along with the learned counsel for the complainant further contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offender with the innocent in this case. Lastly, the learned Deputy Prosecutor General along with the learned counsel for the complainant prayed for the rejection of the appeal. 12. We have heard the learned counsel for the appellant, the learned counsel for the complainant, the learned Deputy Prosecutor General and with their able assistance perused the record and evidence recorded during the trial. 13. The whole prosecution case revolves around the statements of the prosecution witnesses namely Ghulam Qadir (PW-13) and Haji Muhammad (PW-14), the eyewitnesses of the occurrence. The relationship of the prosecution witnesses namely Ghulam Qadir (PW-13) and Haji Muhammad (PW-14) , with the deceased is on record. It is also an admitted aspect of the prosecution case that the prosecution witnesses namely Ghulam Qadir (PW-13) and Haji Muhammad (PW-14), were not the residents of the place of occurrence or any place near the same. According to the prosecution witnesses namely Ghulam Qadir (PW-13) and Haji Muhammad (PW-14), the occurrence took place at the shop of the deceased which was at a distance from the houses of the prosecution witnesses namely Ghulam Qadir (PW-13) and Haji Muhammad (PW-14). The prosecution witness namely Ghulam Qadir (PW-13) during cross-examination explained as under:- "My house is at a distance of 4/5 kms away from place of occurrence. House of Haji Muhammad is at a distance of 1-km from place of occurrence whereas same house is at a distance of 5/6 kms from my house." (emphasis supplied). The prosecution witness namely Haji Muhammad (PW-14) during cross-examination admitted as under:- "My house is one kilometer away from the place of occurrence. It takes half an hour to reach from my house to place of occurrence by foot."(emphasis supplied) The above-referred portions of the cross-examination of the prosecution witnesses reflect that the prosecution witnesses namely Ghulam Qadir (PW-13) and Haji Muhammad (PW-14), can be validly termed as "chance witnesses" and therefore were under a bounden duty to provide a convincing reason for their presence at the place of occurrence, at the time of occurrence and were also under a duty to prove their presence by producing some physical proof of the same. We have noted with grave concern that the prosecution witnesses namely Ghulam Qadir (PW-13) and Haji Muhammad (PW-14), failed miserably to provide any consistent evidence as to the reason for their arrival at the place of occurrence and their presence at the place of occurrence when the same was taking place. Both the prosecution witnesses namely Ghulam Qadir (PW-13) and Haji Muhammad (PW-14) did not even offer any explanation for their presence at the place of occurrence, at the time of occurrence. Moreover, according to the statements of the prosecution witnesses namely Ghulam Qadir (PW-13) and Haji Muhammad (PW-14), they were sitting at the
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shop of one Sajid Hussain when the occurrence took place and witnessed the same from the said place, however, according to the statement of Kazim Hussain, (PW-6), the Investigating Officer of the case , the prosecution witnesses namely Ghulam Qadir (PW-13) and Haji Muhammad (PW-14) were not present at the shop of one Sajid Hussain when the occurrence took place. The prosecution witness namely Ghulam Qadir (PW-13) in his statement before the learned trial court, stated as under:- "States that on 25.11.2014, I alongwith my father Taj Muhammad complainant (since dead) and Haji Muhammad were sitting at the brokerage (Arhat) of Sajid Hussain son of Sadiq Muhammad, in front of that brokerage (Arhat) there was brokerage (Arhat) of Sajjad Hussain alias Punnu." (emphasis supplied) The prosecution witness namely Haji Muhammad (PW-14), in his statement before the learned trial court claimed as under:- "States that on 25.11.2014, I alongwith Taj Muhammad complainant (since dead), and Ghulam Qadir were sitting at the brokerage (Arhat) of Sajid Hussain son of Sadiq Muhammad and in front of that brokerage (Arhat) there was brokerage (Arhat) of Sajjad Hussain alias Punnu. " (emphasis supplied) Contradicting the prosecution witnesses namely Ghulam Qadir (PW-13) and Haji Muhammad (PW- 14), Kazim Hussain, (PW-6), the Investigating Officer of the case , stated during cross-examination as under:- "PWs were present in the premises of brokerage (ARHAT) of Sajjad deceased at the time of occurrence. At the time of occurrence, PWs were not present at the brokerage (ARHAT) of Sajid Chandia."(emphasis supplied) In this manner, the claim of the prosecution witnesses namely Ghulam Qadir (PW-13) and Haji Muhammad (PW-14) with regard to the place of their presence at the time of occurrence was exposed to be false by the statement of Kazim Hussain, SI (PW-6), the Investigating Officer of the case. It is also a fact that the prosecution witness namely Ghulam Qadir (PW-13) was exposed to had made an improvement in his statement with regard to the presence of Haji Muhammad (PW- 14) and was confronted with the said improvement during cross-examination and the learned trial court observed as under:- "It is incorrect to suggest that I did not get record the name of Haji Muhammad son of Maula Dad PW in my said previous statement as PW-2. (It is confronted with the same where presence of Haji Muhammad at brokerage (ARHAT) of Sajid Hussain is not mentioned in his said statement whereas his presence at the place of occurrence has been mentioned in the same.). "(emphasis supplied) Moreover, Kazim Hussain, SI (PW-6) , the Investigating Officer of the case, at the time of his visit to the place of occurrence, after the occurrence, did not observe any furniture which was being used by the prosecution witnesses namely Ghulam Qadir (PW-13) and Haji Muhammad (PW-14) while sitting at the shop of one Sajid Hussain and neither the prosecution witnesses namely Ghulam Qadir (PW-13) and Haji Muhammad (PW-14) pointed out any such furniture which they were using for sitting at the shop of the said one Sajid Hussain. It is also a fact that both the prosecution witnesses namely Ghulam Qadir (PW-13) and Haji Muhammad (PW-14) did not state at all as to why on the day of occurrence they were present at the shop of one Sajid Hussain, with whom neither they had any relationship nor any business. The prosecution witnesses namely Ghulam Qadir (PW-13) and Haji Muhammad (PW-14) also did not explain as to why they were not sitting at the shop of the deceased and had chosen to sit at the shop of one Sajid Hussain. It is also an admitted fact that during the course of the investigation, the said Sajid Hussain, at whose shop the prosecution witnesses namely Ghulam Qadir (PW-13) and Haji Muhammad (PW-14) claimed to had been present at the time of the occurrence, never appeared before the Investigating Officer of
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the case, to verify the said claim of the prosecution witnesses namely Ghulam Qadir (PW-13) and Haji Muhammad (PW-14). The prosecution witness namely Haji Muhammad (PW-14) during cross- examination admitted as under:- "Ashiq Thathal, his son, Sajid Chandia and two or three labourers of other casts were present at that time and near to the place of occurrence." We have also noted with grave concern that neither in column No.4 of the inquest report (Exh. P.K/4.) nor at page 4 of the inquest report (Exh. P.K/4.), the names of the prosecution witnesses namely Ghulam Qadir (PW-13) and Haji Muhammad (PW-14), were mentioned as being the persons present at the place of occurrence. In column No.4 of the inquest report (Exh. P.K/4.) names of Sadiq Muhammad and Muhammad Usman have been mentioned, whereas at page 4 of the inquest report (Exh. P.K/4.), the names of Ihtsham and Abdul Hae Khan have been mentioned. This fact also fully denudes the fact that at the time of the preparation of the inquest report (Exh. P.K/4.), the prosecution witnesses namely Ghulam Qadir (PW-13) and Haji Muhammad (PW-14), were not present at the RHC, Fazilpur and therefore, their names were also not mentioned in the same. We have thus reached an irresistible conclusion that the prosecution witnesses namely Ghulam Qadir (PW-13) and Haji Muhammad (PW-14) , failed to prove the reason for their leaving their houses on the day of occurrence and their arrival at the place of occurrence and the same remained claims unproved, entailing failure of the prosecution witnesses to prove the reasons for their departure from their residences and their subsequent arrival at the place of occurrence. The prosecution was under a bounden duty to establish that the occurrence had indeed taken place when the prosecution witnesses namely Ghulam Qadir (PW-13) and Haji Muhammad (PW-14), had arrived at the place of occurrence and the failure to prove any reason for the prosecution witnesses namely Ghulam Qadir (PW-13) and Haji Muhammad (PW-14) , to have proceeded from their houses to the place of occurrence and their presence at the place of occurrence has vitiated our trust in the prosecution witnesses namely Ghulam Qadir (PW-13) and Haji Muhammad (PW-14) . In this respect, reliance is placed on the case of "Muhammad Rafiq v. State" (2014 SCMR 1698) wherein the august Supreme Court of Pakistan rejected the claim of witnesses who lived one kilometre away from the occurrence, but on the day of occurrence stated to be present near the spot as they working as labourers, inasmuch as they failed to give any detail of the projects they were working on. Reliance is also placed on the case of "Usman alias Kaloo v. State" (2017 SCMR 622) wherein the august Supreme Court of Pakistan held that the ocular account of the incident had been furnished by Zahoor Ahmad, Ghulam Farid and Manzoor Ahmed witnesses in the said case, who were all residents of some other houses and were not the inmates of the house wherein the occurrence had taken place and therefore the said eyewitnesses being, chance witnesses, were declared not worthy of reliance. Reliance is also placed on the case of "Nasrullah alias Nasro v. The State" (2017 SCMR 724). 14. Another grave flaw of the prosecution case is that none of the persons who had their shops near or around the place of occurrence appeared either during the investigation of the case or before the learned trial court in support of the prosecution case. It was admitted by the prosecution witness namely Ghulam Qadir (PW-13) that their cousin namely Shakeel used to work at the shop of the deceased but he was not produced as a witness in the case. The prosecution witness namely Ghulam Qadir (PW-13), during cross-examination, admitted as under:- "My cousin Shakeel used to remain at brokerage (Arhat). Shakeel was present on day of occurrence." As mentioned above, the prosecution witnesses namely Ghulam Qadir (PW-13) and Haji Muhammad (PW-14) admitted that there were shops of other persons at the place of occurrence and the said persons were also present at their shops, however, none of those who had their shops at and around the place of occurrence either appeared before the Investigating Officer of the case
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or before the learned trial court. The failure of the prosecution to produce the said persons has convinced us that had they been produced before the learned trial court, they would not have supported the prosecution case. Article 129 of the Qanun-e-Shahadat, 1984 provides that if any evidence available with the parties is not produced then it shall be presumed that had that evidence been produced, the same would have been gone against the party producing the same. Illustration (g) of the said Article 129 of the Qanun-e-Shahadat Order, 1984 reads as under:- "(g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it." The Investigating Officer was under a binding duty to collect evidence and his failure has to be taken as a circumstance belying the prosecution case. The purpose of the trial is the discovery of truth. As long as men keep lying, the only causality would be the reality. The prosecution case suffers from inherent defects which are irreconcilable as they are. The guidance is sought from the binding decisions of the august Supreme Court of Pakistan in case titled Nadeem alias Nanha alias Billa Sher Vs. The State (2010 SCMR 949) wherein it has been observed as under:- "....further that no independent witness of the locality where the incident took place, a 'Bazar' joined, made case of the prosecution doubtful. It is cardinal principle of Criminal Jurisprudence that any genuine doubt arising out of the circumstances of the case should be extended to the accused as of the right and not as concession. It is difficult to say that prosecution has proved its case beyond shadow of doubt." 15. Another aspect of the case raising our doubt over the presence the prosecution witnesses namely Ghulam Qadir (PW-13) and Haji Muhammad (PW-14), at the place of occurrence, at the time of occurrence is the fact that they never reported the matter to the police and Kazim Hussain, SI (PW-6) the Investigating Officer of the case, himself reached at the RHC, Fazilpur and recorded the oral statement (Exh.P.B/1.) of Taj Muhammad(since dead), the complainant of the case. The august Supreme Court of Pakistan has already enunciated the principle of law that when the F.I.R of the case is not…
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