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Petitioner: MUHAMMAD SHEHZAD alias SAHIBA and anothers VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Malik Shahzad Ahmad Khan, Manzoor Ahmad Malik Title: MUHAMMAD SHEHZAD alias SAHIBA and anothers vs THE STATE Case No.:Criminal Appeals Nos.310-i and 3114 of 2007 and Murder Reference No,14 of
JUDGMENT
Reported As: 2014 YLR 1102 Result: Appeal accepted Judgment JUDGMENT ' MALIK SHAHZAD AHMED KHAN, J.---This judgment shall dispose of Criminal Appeal No, 310-J of 2007 filed by Muhammad Shehzad alias Sahiba appellant, Criminal Appeal No, 311-J of 2007 filed by Imran alias Shani appellant and Murder Reference No, 14 of 2008, sent by the learned trial Court, for confirmation or otherwise, of the sentence of death awarded to Muhammad Shehzad alias Sahiba and Imran alias Shani, appellants, as all these matters have arisen out of the same judgment dated 6-12-2007, passed by the learned Additional Sessions Judge, Shorekot District Jhang, in case F.I.R. No,637 dated 26-9-2007 registered at Police Station Shorkot City District Jhang in respect of the offences under sections 302/324/34, P.P.C. (sections 392/ 109/411 P.P.C. Were added in the charge) whereby, Muhammad Shehzad alias Sahiba and Imran alias Shani, appellants were convicted under section 302(b)/34 of P.P.C. For committing the murder of Muhammad Akram, deceased and sentenced to death. They were further directed to pay Rs,1,00,000/(Rupees One Hundred Thousand only) each as compensation to the legal heirs of the deceased as required under section 544-A of Cr.P.C., failing which they would further undergo six months' S.I. Each. The above-mentioned appellants were also convicted under section 324/34 of P.P.C. For committing the murderous assault upon Muhammad Asghar and sentenced to ten years' rigorous imprisonment each with fine of Rs,50,000/ each and in case of default in payment of fine, both the convicts Muhammad Shehzad alias Sahiba and Imran alias Shani were ordered to further undergo six months' S.I. Each. Benefit of section 382-B, Cr.P.C. Was awarded to both the appellants/convicts in accordance with law.
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2. Brief facts of the case as given by the complainant Muhammad Ashraf. (P.W. 16) in his Fard Biyan' Exh.P-A on the basis whereof the formal F.I.R. Exh.P-A/1 was recorded, are that on 26-9-2007 at about 6:30 p.m. His (complainant's) brother namely Muhammad Akram constable (deceased) and Muhammad Ashgar (P.W.14) were coming on their motorcycle towards their house situated in Chak No, 8 Gagh and when they reached at Link Road near Behari Colony two unknown young accused persons while armed with fire-arm weapons wearing Shalwar Qameez (later on their names were, disclosed as Muhammad Shehzad and Imran appellants) emerged from the reed bushes and both of the accused persons started indiscriminate firing at Muhammad Akram (deceased) and Muhammad Asghar (P.W. 14), as a result of which Muhammad Akram received injuries on the right and left side of his neck, shoulder, left side of chest, right thigh, back and right foot. Muhammad Asghar, (P.W.14) also received injuries on the right wrist and both sides of the belly. Both Muhammad Akram deceased and Muhammad Asghar (P.W.14) fell down from the motorcycle. Thereafter the accused managed to escape. The complainant alongwith Muhammad Ramzan (given up P.W.) and Muhammad Ejaz Tahir (P.W.15) who were also coming after their brothers towards Chak No,8 Ghagh on their motorcycle, witnessed the occurrence at some distance. They attended Muhammad Akram but he succumbed to the injuries at the spot while Muhammad Asghar injured P.W. Was brought to THQ Hospital Shorkot from where he was referred to Allied Hospital Faisalabad. The complainant left behind Muhammad Ramzan (given up P.W.) and Muhammad Ejaz Tahir (P.W.15) to guard the dead body of Muhammad Akram deceased and went to the police station for registration of the case. On the same day i,e, 26-9-2007, the complainant moved an application (Exh. PS) for recording of his supplementary statement. In his said application/supplementary statement the complainant alleged that he was perturbed at the time of registration of the F.I.R., therefore, he could not state that at the time of occurrence two unknown accused persons also snatched mobile phone SONY ERICSON Sim No, 0302-7501188 and an amount of Rs,3,600 from Muhammad Akram (deceased) and a mobile phone NOKIA Sim No, 0300-6505767 and an amount of Rs,720 from Muhammad Asghar (P.W.14). It was further alleged in the said supplementary statement (Exh. PS) that about two hours prior to the occurrence Muhammad Ashfaq (given up P.W.) and Muhammad Ashraf (P.W.11) witnessed Haider accused (since proclaimed offender) who was bringing two unknown accused persons on his motorcycle towards the place of occurrence and immediately after the occurrence the said two un known accused persons fled away from the spot on the motorcycle of Muhammad Mansha accused (since proclaimed offender) who were seen by Muhammad Mushtaq (given up P.W.) and Inayat Ali (P.W.12) at the Link Road of Chak No,7/Ghagh. It was also alleged that the unknown accused persons stayed at the residence of Haider accused (since proclaimed offender) and Muhamrnad .Mansha accused (since proclaimed offender) on the night preceding to the occurrence, therefore, Haider and Mansha accused (since proclaimed offenders) had abetted the offence. 3. The appellants were arrested on 30-9-2007 by Muhammad Riaz, Inspector (P.W.17). On 8-10-2007 identification parade of the appellants was got conducted within the premises of District Jail, Jhang, who were identified by Muhammad Ashraf complainant (P.W.16), Muhammad Ijaz Tahir (P.W.15) and Muhammad. Ramzan (given up P.W.). On 11-10-2007 statement under section 161 of Cr.P.C. Of Asghar injured P.W. Was recorded. On 16-10-2007 the appellant Shehzad led to the recovery of pistol (P-6), mobile phone (P-7) and cash amount of Rs,3,600 (P-8), which were taken into possession vide recovery memo Exh.PO. On the same day, the appellant Imran alias Shani led to the recovery of pistol (P-9), which was taken into possession vide recovery memo Exh.PP. On the same day the said appellant also led to the recovery of pistol .30 bore (P-10) which was taken into possession vide recovery memo Exh. PQ. The said appellant also further led to the recovery of mobile phone (P-11) and cash amount of Rs,720 (P-12) which were taken into possession vide recovery memo Exh.PR. After completion of investigation, the challan was prepared and submitted
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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 appellants, on 15-11-2007, to which they pleaded not guilty and claimed trial. 4. In order to prove kits case, the prosecution produced seventeen witnesses, during the trial. Muhammad Ashraf, complainant (P.W.16), Muhammad Ijaz Tahir (P.W.-15) and Muhammad Asghar (P.W.14) are the witnesses of ocular account. Muhammad Ashraf (P.W.11) is the witness who had seen two unknown accused persons (the appellants) two hours prior to the occurrence while going alongwith Haider accused (proclaimed offender) on a motorcycle towards the place of occurrence. Inayat Ali (P.W.12) is the witness, who had seen two unknown accused persons (thee appellants) after the occurrence while fleeing away in the company of Muhammad Mansha (since proclaimed offender). ' The medical evidence was furnished by Dr. Muhammad Zafar Iqbal, (P.W.9) and Dr. Muhammad Hashir, (P.W.7). Muhammad Ashraf, (P.W.16) is also the witness of recovery of Motorcycle bearing Registration No,3656/MNY (P-4), mouser pistol .30 bore (P-6) mobile phone (P-7), cash amount (P- 8) from the possession of Shehzad (appellant), pistols .30 bore (P-9 & P-10) cash amount of Rs,3,600 (P-8) and mobile phone NOKIA (P-11) from the possession of Imran alias Shani (appellant). Muhammad Riaz, Inspector (P.W.17) is the Investigating Officer of this case. ' Muhammad Riaz Bhatti, Civil Judge/Judicial Magistrate (P.W.13) has supervised the proceedings of identification parade within the premises of District Jail, Jhang. ' Muhammad Shakeel Anjum, MHC 424 (P.W.1), Muhammad Arshad Khan, MHC 1022, (P.W.2), Allah Ditta Constable 1539, (P.W.3), Muhammad Arif, A.S.-I. (P.W.4), Jan Muhammad, Draftsman (P.W.5), Akbar All Constable 406 (P.W.6), Muhammad Akbar HC 555 (P.W.8) and Amjad Ali (P.W.10) are the formal witnesses. The prosecution also produced documentary evidence in the shape of 'Fard Biyan' of Muhammad Ashraf complainant (P.W.16) Exh. PA, F.I.R. Exh. PA/1, memo of possession of the moulds of foot prints Exh. PB to Exh. PD, scaled site plan of the place of occurrence in duplicate Exh. PE and Exh. PE/1, memo of possession of last worn clothes of the deceased Exh. PF, Medico-legal Report of Muhammad Asghar (P.W.14) Exh. PG, pictorial diagram Exh. PG/1, injury statement of Muhammad Asghar (P.W.14) Exh. PG/2, post mortem report of Muhammad Akram (deceased) Exh. PH, pictorial diagrams Exh. PH/1 and Exh. PH/2, injury statement of the deceased Exh. PJ, inquest report Exh. PK, memo of possession of blood-stained earth Exh. PL, report of Chemical Examiner Exh. PL/1, report of Serologist Exh. PL/2, application for conducting identification parade Exh. PM, memo of possession of 10 crime empties Exh. PMM, proceedings of identification parade Exh. PN to Exh. PN/3, memo of possession of motorcycle (P-4) bearing Registration No, 3656/MNY Exh. PN, memo of possession of pistol .30 bore etc. Exh. PO, memo of possession of mobile phone (SONY ERICSON) and cash amount of Rs, 3,600/Exh. PO, memo of possession of pistol (P-9) from Imran alias Shani appellant Exh. PP, memo of possession of second pistol 30 bore (P-10) from Imran alias Shani appellant Exh. PQ, memo of possession of mobile phone NOKIA and cash amounting to Rs,720/from Imran alias Shani appellant Exh. PR, application for recording supplementary statement of the complainant Exh. PS, memo of possession of clothes of injured Muhammad Asghar (P.W.14) Exh. PT, rough, site plan of the place of occurrence Exh. PU, application for summoning of accused persons Exh. PV, rough site plan of the place of recovery of pistol and mobile phone etc. From Muhammad Shahzad appellant Exh.P.W., rough site plan of the place of recovery of pistol etc. From Imran alias Shani appellant Exh. PX, rough site plan of the place of recovery of pistol etc. From Imran alias Shani appellant Exh. PY, report on warrants of arrest of Haider accused (since proclaimed offender) Exh. PZ, report on warrants of arrest of Muhammad Mansha accused (since proclaimed offender) Exh. PZ/1, application for warrants of arrest Exh. PZ/2, proclamation under sections 87/88 Cr.P.C. Against Muhammad Mansha accused (proclaimed offender) Exh. PAA/1, proclamation under sections
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87/88 Cr.P.C. Against Haider accused (since proclaimed offender) Exh. PAA, application for proclamation under section 87/88 Cr.P.C. against Haider and Mansha (proclaimed offenders) Exh. PAA/2, report of Forensic Science Laboratory, Punjab, Lahore Exh. PBB and closed its evidence. 5. The statements of the appellants under section 342 Cr.P.C. Were recorded. While answering to question that "Why this case against you and why the PWs have deposed against you" the appellants replied as under:-- Muhammad Shehzad alias Sahiba. "1 was involved in this case falsely. In fact Muhammad Akram deceased was the employee of Security Branch of Police Station Shorkot City and often report about the activities of the fanatic, groups, on which the police took action against them and from those persons some one committed his murder and injured his brother. The case was registered against unknown persons. As Muhammad Akram deceased was the police official, so the police in order to show his efficiency arrested me and my co-accused from Kashmir Sugar Mills where we were working at hotel, police tortured us and challan me and my co-accused mala fidely. P. Ws. Are related inter se, so they falsely deposed against me and my co-accused." Imran alias Shani. "I was involved in this case falsely. In fact Muhammad Akram deceased was the employee of Security Branch of Police Station Shorkot City and often report about the activities of the fanatic groups, on which the police took action against them and from those persons some one committed his murder and injured his brother. The case was registered against unknown persons. As Muhammad Akram deceased was the police official, so the police in order to show his efficiency arrested me and my co-accused from Kashmir Suger Mills where we were working at hotel, police tortured us and challaned me and my co-accused malafidely. P. Ws. Are related inter se, so they falsely deposed against me and my co-accused." 6. The learned trial Court vide judgment dated 6-12-2007, found Muhammad Shehzad alias Sahiba and Imran alias Shani (appellants) guilty and convicted and sentenced them as mentioned and detailed above. 7. Learned counsel for the appellants, in support of this appeal, contends that both the appellants have falsely been implicated in this case; that the appellants were not named in the F.I.R. And no exact description of the accused such as colour, tentative ages and height etc. Is mentioned therein and identification parade conducted under the supervision of P.W.13 carries no value for the reason that the witnesses i,e, Muhammad Ijaz Tahir (P.W.15) and Muhammad Ashraf (P.W.16) participated in the identification parade but no role whatsoever during the occurrence, was attributed to the appellants; that the complainant after registration of the case made his supplementary statement wherein he has stated that both the unknown accused persons were brought at the spot by Haider (proclaimed offender) and they were seen by Muhammad Ashraf (P.W.11) and after the occurrence Muhammad Mansha (proclaimed offender) facilitated the aforesaid unknown accused persons in fleeing away from the place of occurrence which was seen by Inayat Ali (P.W.12) but even in the said supplementary statement the appellants were not named by the complainant; that the injured in this case was Muhammad Asghar (P.W.14) but he did not participate in the identification parade and there is no reason for his non-participation in the identification parade; that the Investigating Officer (P. W.17) went to the Allied Hospital on 28-9- 2007 and thereafter on 11-9-2007 he recorded the statement of injured Muhammad Asghar (P.W.14) and the Doctor has not stated that at the time of identification parade, the injured Muhammad Asghar (P.W.14) was not in a position to participate in the identification parade and there is nothing on the record that the injured was not in a position to take part in the identification parade; that it is the case of complainant and other eye-witnesses of the ocular account that they took the injured
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to the Hospital which is belied by the Medico-legal Report of Muhammad Asghar (P.W.14) Exh. PG as in the column of 'Name of relative or friend' it is mentioned that the injured was brought by the police; that the recovery of pistols and positive report of Forensic Science Laboratory are inconsequential as the empties were recovered on 26-9-2007, appellants were also arrested on 26-9-2007 but their arrest has fictitiously been shown on 30-9-2007 by the Investigating Officer, however, empties were sent to the office of Forensic Science Laboratory on 11-10-2007; that it was not mentioned in the F.I.R. Regarding snatching of any article from the deceased and injured and this story was introduced during the Supplementary statement of the complainant; 'that though charge was framed against the appellants under sections 392 and 411, P.P.C. But they were not convicted and sentenced for the said charge; that even otherwise no specific identification marks on the currency notes and mobile phones were mentioned in the supplementary statement of the complainant; that the prosecution has miserably failed to prove its case against the appellants beyond the shadow of doubt; thus, this appeal be accepted and the appellant may be acquitted from the charges. 8. Learned Deputy Prosecutor-General, for the State, assisted by learned counsel for the complainant opposes this appeal on the grounds that there was absolutely no enmity of the complainant and other eye-witnesses for the false implication of the appellants in this case; that the appellants have correctly been identified by three eye-witnesses namely Muhammad Ashraf complainant (P.W.16), Muhammad Ramzan (given up PW) and Muhammad Ijaz Tahir (P.W.15) during the identification parade which was conducted under the supervision of learned Judicial Magistrate section 30 (P.W.13); that the injured did not participate in the identification parade as he was not in a position to participate in the identification parade as according to the Doctor Muhammad Hashir (P.W.7) the injured was unconscious at the time of his medical examination; that apart from the eyewitnesses the prosecution has also produced two witnesses namely Muhammad Ashraf (P.W.11) and Inayat Ali (P.W.12) who have stated that they saw the appellants on a motorcycle alongwith Haider accused (since proclaimed offender) while going to the place of occurrence and leaving from the place of occurrence in the company 'of 'Muhammad Mansha accused (since proclaimed offender); that the prosecution case is corroborated by the recovery of mobile phones and cash amount from the possession of the appellants; that the ,prosecution case is further corroborated by the recoveries of pistols from the possession of the appellants and positive report of Forensic Science Laboratory; that the prosecution case also gets support from the evidence of Muhammad Akbar, HC No,555 foot tracker (P.W.8); that there is no mitigating circumstance in this case; that the sentence of death was rightly awarded to the appellants and the same may be maintained, appeal may be dismissed and Murder Reference be answered in the affirmative. 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. The detail of the prosecution case as set forth in the F.I.R. (Exh. PA/1) and in the supplementary statement of the complainant (Exh. PS) has already been given in para No, 2 of this judgment, therefore, there is no need to repeat the same. ' The occurrence in this case took place on 26-9-2007 at about 06:30 p.m. The matter was reported to the police by Muhammad Ashraf complainant (P.W.16) on the same evening at about 07:45 p.m. And the formal F.I.R. (Exh.PA/1) was also lodged on the same evening at 07:50 p.m. It is noteworthy that the appellants were not named in the F.I.R. The complainant Muhammad Ashraf (P.W.16) got recorded his supplementary statement (Exh. PS) on the day of occurrence i,e, 26-9-2007 but even in his said statement he did not name the appellants, though he nominated two other co-accused namely Haider son of Shamas-ud-Din (since proclaimed offender) and Muhammad Mansha son of Shamas-udDin (since proclaimed offender) with the allegation that Haider accused (since
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proclaimed offender) brought two unknown accused persons on his motorcycle to the place of occurrence and after the occurrence, Muhammad Mansha accused (since proclaimed offender) facilitated the afore mentioned two un known accused persons in fleeing away from the spot on his motorcycle. We have noted that sufficient description of the unknown accused persons who committed the occurrence was neither mentioned in the F.I.R. (Exh. PA/1) nor in the supplementary statement of the complainant (Exh. PS) and it was simply mentioned in the F.I.R. That two unknown accused persons who were of young age and wearing 'shalwar qameez' have committed the occurrence. As sufficient description of the appellants was neither mentioned by the complainant Muhammad Ashraf (P.W .16) in the F.I.R. (Exh. PA/1) or in his supplementary statement (Exh. PS) nor by the other eye-witness namely Muhammad Ijaz Tahir (P.W.15) in his statement before the police, therefore, their identification through identification parade by the above mentioned witnesses is not worthy of reliance. We may refer the case of 'State through Advocate-General, Sindh, Karachi v. Farman Hussain and others' (PLD 1995 Supreme Court 1) wherein at page 13 the Hon'ble Supreme Court of Pakistan has held as under:-- 'In any case to say that one was in pant and shirt and two were in shalwar-qarneez is not the description, which can be helpful at the time of identification parade.' Similarly in the case of ' Sabir Ali alias Fauji v. The State' (2011 SCM R 563) the Hon'ble Supreme Court of Pakistan at page 570 was pleased to observe as under:-- ' It is also settled principle that identification test is of no value when description/feature of accused is not given in the contents of the F.I.R. It appears from the record that accused persons are complete strangers to the prosecution witnesses, therefore, in the absence of description in the contents of F.I.R., the benefit of doubt be given to the accused persons...." ' We have also gone through the report Exh. PM regarding the identification proceedings of the appellants and have noted that no role whatsoever during the occurrence was attributed to the appellants by the eye-witnesses and it is simply mentioned therein that the witnesses have rightly identified the appellants. Non-mentioning of the role of either of the appellant by the eye- witnesses is another serious defect in the prosecution case. We may refer here the case of ' Sabir Ali alias Fauji' supra wherein at page 570 it was observed as under:- 'It is also settled principle of law that role of the accused was not described by the witnesses at the time of identification parade which is, always considered inherent defect, therefore, such identification parade lost its value and cannot be relied upon. See Ghulam Rasul's case (1988 SCM R 557), Mahmood Ahmed's case (1995 SCM R 127) and Khadim Hussain's case (1985 SCM R 721).' 11. The occurrence in this case took place in the area of village Rakh Kotla. The eye-witnesses namely Muhammad Ijaz Tahir (P.W.15) and Muhammad Ashraf (P.W.16) are not residents of the said village and they both are residents of Chak No,8/Ghagh and as such they are chance witnesses. Their presence at the spot is also belied from the fact that in the relevant column i,e, 'Name of relative or friend' of the MLR (Exh. PG) of Muhammad Asghar (P.W.14) it is written that the said injured was brought by the police to the Hospital and the names of above mentioned eyewitnesses namely Muhammad Ijaz Tahir (P.W.15) and Muhammad Ashraf complainant (P.W.16) are not mentioned therein. It is also noteworthy that Muhammad Asghar (P.W.14) was the star witness of the prosecution as he was injured during the occurrence but he did not identify the appellants during any identification. Parade. Although it is argued on behalf of the complainant that Muhammad Asghar (P.W.14) was not medically fit at the time of identification parade of the appellants, therefore, he could not take part in the identification parade but the prosecution has not produced any Medical Officer to prove that the said witness was medically unfit and was not in a position to participate in the identification parade of the appellants. The occurrence in this case took place on 26-9-2007 whereas the identification parade of the appellants was held on 8-10- 2007. No evidence was produced by the prosecution that Muhammad Asghar (P. W. 14) was
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medically unfit on the said date (8-10-2007). Even no application was ever moved by, the prosecution for conducting the identification parade of the appellants after the recovery of Muhammad Asghar (P.W.14). Although Muhammad Asghar (P.W.14) is an injured eye-witness of the occurrence but the injuries on his person does not stamp him with the whole truth. It is by now well settled law that the intrinsic value of the evidence of an injured eyewitness is to be seen and mere injuries on the person of a witness does not mean that he was telling the whole truth. We may refer here the case of 'Muhammad Pervez and others v. The State and others' (2007 SCM R 670) wherein the Hon'ble Supreme Court of Pakistan at page 681 has held 1 as under:- 'It is also a settled law that injuries on a P.W. Only indication of his presence at the spot but is not informative prove of his credibility and truth.. See Said Ahmad's case 1981 SCM R 795' ' Insofar as the identification of the appellants by Muhammad Ashraf (P.W.11) and Inayat Ali (P.W.12) is concerned, we have noted that they were the witnesses of circumstantial evidence of bringing the appellants to the place of occurrence on a motorcycle by Haider accused (since proclaimed offender) and taking them away on a motorcycle after the occurrence by Muhammad Mansha…
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