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Petitioner: MUHAMMAD IMRAN VS Respondent: The STATE
Court Name: Lahore High Court Judge(s): Rauf Ahmad Shaikh, Sagheer Ahmad Qadri Title: MUHAMMAD IMRAN vs The STATE Case No.: Criminal Appeal No.240 and Murder Reference No.496 of 2007 Date of Judgment:2011-02-09 Reported As: 2013 YLR 570 Result: Appeal allowed
JUDGMENT
JUDGMENT ' SAGHEER AHMAD QADRI, J.---Muhammad Imran son of Sher Dil, Caste Janjua Rajput resident of Dhok Sandaran, Tehsil P.D.Khan, District Jhelum was tried along with his co-accused Muhammad Asif son of Sher Dil his real brother and Mumtaz Ali son of Fazal Ahmad in case F.I.R. No. 97 dated 7- 8-2006 registered at Police Station Jalalpur Sharif District Jhelum under sections 302(b), 109 and 34 P.P.C. For committing Qatl-e-Amd of Asjid Ali (deceased) the brother of the complainant Shafqat Ali Cheema and the learned Additional Sessions Judge vide impugned judgment dated 30-6-2007 whereby appellant was convicted under section 302(b) P.P.C. And was awarded, death penalty as Ta'zir and was also directed to pay Rs.1,00,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of deceased or in default thereof to undergo six months' S.I., while his two co-accused Muhammad Asif son of Sher Dil and Mumtaz Ali son of Fazal Ahmad were acquitted. Appellant Muhammad Imran has preferred this appeal against his conviction, while Murder Reference No. 496 of 2007 is submitted by the State for confirmation of death sentence as awarded to the appellant. 2. F.I.R (Exh.PJ/1) was recorded on the basis of complaint (Exh.PJ) lodged by Shafqat Ali Cheema son of Lehrasab Khan (P.W.11) on 7-8-2006 mentioning the facts that he was resident of Kot Umar and was a General Councillor in the Union Council Daulat Pur. On that morning his brother Asjid Ali (deceased) was going towards Dheriyala to reach the shop by a bicycle while he (complainant Shafqat Ali CheemaP.W.11) along with Muhammad Nazir son of Mehdi Khan (given up P.W.) and Muhammad Boota son of Mehdi Khan (P.W.12) were also going by a motorcycle to Sammanwal. When they reached near "Qainchi Mor" near Basti Al-Bairooni a Car bearing Registration No. IDN- 2302 black coloured, 2-D came from the back side, which was being driven by Muhammad Imran
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son of Sher Dil caste Janjua resident of Dhok Sandaran (the appellant), who crossed them while complainant's brother Asjid Ali was going ahead of them at a small distance. At 8-30 a.m. Muhammad Imran appellant by car when reached near Asjid Ali (deceased) complainant's brother he stopped the car, alighted from it and fired with Pistol .30 bore successively on his brother which hit him on his right eye, right upper arm, abdomen and chest, who fell down. Muhammad Imran appellant while boarding in the said car fled away from the spot towards Chak Mujahid Mor. This occurrence was witnessed by the complainant Shafqat Ali Cheema, Muhammad Nazeer and Muhammad Boota. Complainant's brother Asjid Ali succumbed to the injuries at the spot. Motive for the occurrence was mentioned that Muhammad Imran appellant, his brother Muhammad Asif (acquitted co-accused) had the suspicion that Asjid Ali (deceased) had developed illicit relations with their sister Mst. Kishwar Bibi and due to that reason Muhammad Asif son of Sher Dil came there' from Sheikhupura about 4/5 days back. Muhammad Asif and Mumtaz Ali alias Chief acquitted co-accused about two days back threatened Asjid Ali (deceased) that he should leave the village otherwise they would get him murdered and this fact was disclosed by deceased to the complainant in the presence of Dilawar and Dilshad Sarwar, Asjid Ali was murdered by Muhammad Imran at the instance of Muhammad Asif and Mumtaz Ali alias Chief co-accused. 3. On this report investigation in this case was conducted by P.W.13 Imran Baig Inspector/S.H.O., who visited the place, of occurrence, recorded the statement of complainant Shafqat Ali Cheema (P.W.11.) as Exh.PJ. He prepared injury statement (Exh.PB) and sent the dead body for postmortem examination. He got registered the F.I.R and secured blood-stained earth from the place of occurrence vide memo Exh.PC. He took into possession one empty of .30 bore (Exh.P.l) sealed the same and secured vide memo Exh.PD. Bicycle Exh.P2 was also secured by the I.O. Through memo Exh.PE and he subsequently got prepared rough site plan (Exh.PL) and after the postmortem examination he was produced by Muhammad Riaz/HC (P.W.6) and last worn clothes of deceased (Exh.P4 to Exh.P6) were secured vide memo Exh.PG. He got prepared the site plan through draftsman (P.W.9) Akhtar Naqash (Exh.PH, Exh.PH/1 and Exh.PH/2). He arrested the appellant Muhammad Imran on 16-9-2006 and allegedly during investigation on 22-9-2006 he led to the recovery of Pistol .30 bore (Exh.P3) from his house. It is worth-mentioning here that all the recovery memos which the Investigating Officer (P.W.13) prepared were attested by Muhammad Afsar son of Muhammad Sharif (P.W.5) (wrongly shown by the learned trial Court while recording his statement as Muhammad Afzal) and Muhammad Azam son of Pehlwan given up P.W. After conclusion of the usual investigation the appellant and his two acquitted co-accused were challaned in the learned trial Court. They were charged as aforementioned and prosecution examined total 13 witnesses to prove the charge against them. 4. On 7-8-2006, P.W.1 Dr. Muhammad Tariq Ghazi, Medical Officer THQ Hospital Pind Dadan Khan conducted the autopsy on the person of Asjad Ali deceased and found the following injuries:-- (1) Wound of entry inverted margins. Burning and blackening around the wound was present at right eye. Both eye lids pushed inwards. Lower lid at medial half lacerated. Eye ball badly torn. (2) A lacerated wound of exit bruises present having size of 3 cm x 2 cm at central of posterior at left of posterior of head. Bleedings present. (3) A wound of entry inverted margins burning and blackening under wound present...Size 1 cm x 3/4 cm. Bleeding present cited at middle lateral of lower` half of upper right arm. A wound of exit 1-1/2 cm x 1 cm with lacerated--averted margins bruises present, cited. At anterior of lower half center of right arm upper part, bleeding present. (5) Upper medial of left shoulder interiorly having size of lcm x 3/4 cm .Inverted margins, blackening burning present, only skin deep bleeding present. (6) A wound of entry burning, blackening present at anterial upper left chest at anterior lateral to left chest at middle of left clavicle and left nipple. Size 1/2 cm x 3/4, cm bleedings present skin deep.
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(7) A wound of entry with inverted margins bleeding blackening and burning around wound present cited at 4 cm inferolaternal to left nipple size 1 x 1 cm bleedings present. 7th rib below wound was fractured. (8) A wound of entry. 1 cm x 1/2 cm at lateral of left side of abdomen, blackening burning present skin deep. (9) ' A wound of entry of 1 cm x 3/4 cm at central of anterial chest at equal distance from both nipples skin deep by bleeding and burning present. ' The doctor opined that injury No.1 damaging right eye: ball, brain, tissue, meanings and skull, caused severe shock and haemorrhage and injury No.7 damaging 7th left rib at lateral inferior left pleura, left lateral diaphragm stomach, pancreas, spleen and left kidney caused severe haemorrhage. A metallic piece found at lower back of left chest subcutenously 2 cm away from vertebral Column. According to the doctor injuries Nos.1 and 7 were sufficient to cause death in the ordinary course of nature. He further opined that the said injuries were ante mortem. The probable time between injury and death was within half an hour and between death and post mortem from three to six hours. 5. P.W.2 Muhammad Aslam/HC/ Moharrir deposed that he kept the sealed parcels allegedly containing .The bloodstained earth and parcel containing empty in safe custody in Malkhana and handed over the same to Muhammad Iqbal for onward transmission to the office of Chemical Examiner on 15-8-2006. He also kept the Pistol .30 bore handed over to him by P. W.13 Imran Baig Inspector and further transmitted. The same to Forensic Science Expert through Muhammad Iqbal P. W.3. P.W.3 stated that he took the above mentioned parcels to the office of Chemical Examiner as well as that of Forensic Science Expert. Riaz Ahmad P.W.4 identified the dead body of deceased at the time of postmortem examination along with Arshad Mehmood given up P.W. P.W.5 Muhammad Afzal (wrongly shown as Muhammad Afzal) is the witness of, the recoveries subject-matter of Exh.PB to Exh.PF on the first visit ''' of the Investigating Officer at the spot as well as the recovery of Pistol. P.W.6 Muhammad Riaz/Constable got conducted the postmortem examination on the dead body of the deceased and handed over .The last worn clothes of the deceased to the I.O. Who secured the same vide memo Exh.PJ. P.W.7 Dilawar Khan son of Bahadar Khan is the witness of threats extended by the acquitted co-accused to the deceased. P.W.8 Riasat Khan is the witness of conspiracy. P.W.9 Akhtar Nakash Draftsman prepared the site plan. P. W.10. Nazar Muhammad, ASI is the police officer who recorded the formal F.I.R. (Exh.PJ/1) on the basis of complaint Exh. PJ on 7- 8-2006. P.W.11 Shafqat Ali Cheema and P.W.12 Muhammad Boota the eyewitnesses reiterated their stand as mentioned in the complaint/F.I.R. (Exh.PJ and Exh.PJ/1). Lastly Investigating Officer P.W.13. Conducted the investigation as already mentioned and prosecutor tendered in evidence reports of Chemical Examiner (Exh.PM) and that of Serologist (Exh.PM/1) and that of Forensic Science Expert (Exh.PN). 6. After conclusion of the prosecution evidence the appellant and his acquitted co-accused were examined under section 342, Cr.P.C. Who denied the factum of having committed the offence under reference and in answer to a question as to why this case against him and why the P. Ws. Deposed against him, the appellant Muhammad Imran replied as under:-- "The deceased has many enemies due to political rivalry in the Illaqa. He was murdered by unknown assailant/assailants much before the time given in the F.I.R. I was involved due to suspicion. It was an unseen occurrence. The deadbody was taken to the mortuary where all the documents were prepared including statement Exh. PJ after deliberation and consultation. The P. Ws. Are related inter se and they have appeared against me at the behest of the complainant." ' The appellant, however, did not opt to get recorded his statement on oath in terms of section 340(2), Cr.P.C. In disproof of the allegations levelled against him in the prosecution evidence. He also did not lead any defence evidence.
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7. Learned trial court after hearing the arguments from both sides convicted the appellant aforementioned and ,acquitted his two co-accused. 8. Learned counsel for the appellant out rightly argued that if whole of the evidence led by the prosecution is seen, specially, the statement of Shafqat Ali Cheema, P.W.11 and Muhammad Boota P.W.12 the two eye-witnesses, their presence at the spot is not proved on record as throughout the investigation as well as at the trial stage they did not bring on record the reason for their proceeding towards village Sammanwal thus their presence at the spot is doubtful; that the only reason for conviction to the appellant prevailed with the learned trial court was that the appellant admitted the motive part of evidence; that this fact was also inferred by the learned trial court on the basis of the trend of the cross-examination to the witnesses and for that purposes learned defence counsel referred Paragraph No. 20 of the impugned judgment. Learned counsel further developed the arguments that P.W.5 Muhammad Afsar who is closely related to deceased as well as the complainant, is the only recovery witness who throughout the investigations remained associated with the I.O. And for that purpose learned counsel referred the recovery memos Exh.PB to Exh.PE whereby the blood-stained earth, empty etc. Were secured by the I.O. On the alleged day of occurrence from the spot and subsequently on 22-9-2006 when allegedly Pistol .30 bore was got recovered by the accused-appellant from his house and secured vide memo Exh.PF. Learned counsel argued that this witness in his statement specifically admitted that his brother Muhammad Akhtar and one Khizar Hayyat were searching for Mumtaz Ali accused and they reached the place of occurrence and found dead body of deceased lying there and thereafter it was informed to Shafqat Ali Cheema P.W.11 the complainant who subsequently reached there. Learned counsel developed the arguments on the basis of this statement that Shafqat Ali Cheema P.W.11 and Muhammad Boota were not present at the alleged place of occurrence rather they were subsequently informed and they falsely concocted the story. It was further argued that time of death as ascertained by the Doctor Muhammad Tariq P.W.1 also supports this version that death occurred much earlier than the time shown by the complainant; that it was an unwitnessed occurrence, therefore, prosecution was not able to prove the charge against the appellant beyond any reasonable shadow of doubt. Prayed that benefit be extended in favour of the appellant and he be acquitted of the charge. 9. On the other hand learned Deputy Prosecutor-General assisted by learned counsel for the complainant while controverting the contentions raised by the learned counsel for the appellant argued that the appellant is specifically named in the F.I.R. With a specific role coupled with promptly lodged F.I.R.; that the two eyewitnesses P.W.11 Shafqat Ali Cheema and P .W . 12 Muhammad Boota have corroborated each other on all material aspects and no material contradiction could be brought on record by the defence despite lengthy cross-examination; that the ocular account is corroborated with the medical evidence coupled with the recovery of blood- stained earth; that the motive is proved and even during cross-examination no material discrepancy could be pointed out by the learned defence counsel. It was further argued that the statement made by P.W.5 Muhammad Afsar which was referred to by the learned counsel for the appellant was just a hearsay so it was inadmissible in evidence and thus has no consequence; that there was no previous enmity between the parties and, therefore, the leaned trial Court rightly convicted and sentenced the accused/appellant. 10. We have heard the learned counsel for the appellant as well as the learned Law Officer assisted by the learned counsel for the complainant in the light of motive as set up by the prosecution, ocular account, medical evidence and recoveries effected from the appellant and then sentences passed on the basis thereof by the learned trial Court. 11. Ocular account was brought on record by the prosecution through the statements of P.W.11 Shafqat Ali Cheema the real brother of deceased Asjid Ali and P.W.12 Muhammad Boota son of
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Mehdi Khan who is the husband of the real sister of deceased as well as the complainant thus is closely related to the deceased as well as the complainant. As already, mentioned learned Defence Counsel outrightly raised objection that presence of both of these eye- witnesses was doubtful at the alleged place of occurrence. Admittedly, place of occurrence is situated on a road side which is at a long distance from the place of residence of the complainant as well as of the deceased although the prosecution has not brought on record the exact distance between the alleged place of occurrence and place of residence, of the complainant, deceased as well as other eye-witnesses but if the statement of complainant Shafqat Ali Cheema P.W.11 is seen, he during his cross-examination stated that:-- "It is incorrect that as I along with P.Ws. Was not proceeded towards Summanwal, therefore, I had not advanced any reason in my statement Exh.PJ and thereafter during the investigation and even today before the court. Our village is connected by a Pakka road with Police Station Jalalpur Sharif. There are two routes to proceed to Police Station Jalalpur Sharif from my village, one through Pinonwal and other through Pindi Saidpur. Both are situated on metalled road proceeding to P.D.Khan from Jalalpur Sharif. If one proceed on a motorcycle it takes 35 to 45 minutes from my village to Police Station Jalalpur Sharif via Pindi Saidpur at a distance of 40/45 kilometers per hour. If one comes via Pinonwal the distance is the same. It is incorrect that the distance in between my village and that of Jalalpur Sharif is hardly 10 kilometers. A is further incorrect that only 15 minutes are required to cover such distance. The occurrence had taken place on a Baghanwala road. It comes from Baghanwala to Kainchi Morh, thereafter it is further bifurcated and one branch leads towards Gharibwal factory and the other proceed to Chak Mujahid Morh. Our village is situated on eastern side from Baghanwala and is connected by a metalled road. I cannot tell the distance in between Kot Umar and Baghanwala road. However, 30 minutes are consumed to covering the distance on a bike." ' If the above mentioned statement is seen, it is clear that alleged place of occurrence is outside the village on a way leading towards Sammanwal as well as Dharyala Jalap and until and unless somebody had to proceed to that direction with specific object one cannot reach at the spot/alleged place of occurrence in routine. If the statement of P.W.11 Shafqat Ali Cheema complainant is seen he during cross-examination stated that:-- "I had not stated in Exh.PJ the reason for proceeded to Summonwal along with the P.Ws. I had been joining the police investigation till the challan was submitted. I had not stated before the police the reason for proceeding to Summonwal during whole of the proceedings conducted by the police, relating to this case. Even today I have not advanced the reason for proceeding to Summonwal while making my statement before the court." ' This witness further during cross-examination stated that:-- "I did not state the name of the person to whom I had to meet in Summonwal on the day of occurrence. I cannot assign any reason as to why I did not state the name to the police. I did not produce the said person during the investigation of the case. It is incorrect that the story of going to Summonwal have been fabricated. If I had not to proceed to Summonwal I could not have seen the occurrence. It is incorrect to suggest that for the same reason I have fabricated the story of proceedings to Summonwal." ' The other eye-witness who was examined by the prosecution to corroborate the statement of complainant, P.W.12 i.e. Muhammad Boota during cross-examination on the same point stated that:-- "I had not stated in my said statement the name of the person to whom we had to meet. I had not stated the purpose of my visit at Summonwal. I appeared befoie the police twice/thrice for investigation purposes. I never stated the purpose of my visit and name of the person to whom we had to meet. The person to whom we had to meet had not appeared before the police within my
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view. I cannot assign any reason as to why had not mentioned the purpose of my visit and the name of the person to whom we had to meet in my statement under section 161, Cr.P.C." ' During cross-examination this witness also admitted that:- "If we had not to proceed Summonwal we could not have seen the occurrence. It is incorrect that for the same reason we had fabricated false .Story of proceedings towards Summonwal." ' If the statement of Imran Baig Inspector P.W.13 the Investigating Officer is seen, he during cross- examination stated that:- "Shafqat complainant/P.W. Has not mentioned the purpose of his going towards the place of occurrence, neither the name of the person to whom he had to meet on that day. Similarly the P.Ws. Did not explain as for what purpose and to whom they had to meet. The prosecution witnesses did not produce the person to whom they had to meet in the whole of my investigation. I did not investigate this aspect of the case that as to why the P.Ws Were proceeding towards Summonwal, what purpose they had with the person to whom they had to meet. Similarly I did not investigate the name of the person to whom they had to meet in Summonwal. It is correct that if they had not to proceed to Summonwal, the P.Ws could not seen the occurrence. According to the version of the P.Ws they had reached at the place of occurrence per chance. In spite of all these factors I did not investigate the case on this point. 12. Another factor which was pointed out by the learned counsel for the appellant in support of his arguments that it was an unwitnessed occurrence, the non-production rather non-mentioning of the registration number of the motorcycle allegedly which was used by the complainant and the witnesses by which they reached at the alleged place of occurrence, although it is alleged by both the witnesses that they proceeded at the spot but neither the both of the witnesses nor the I.O. Brought on record any evidence in this respect. The information about the alleged occurrence according to P.W.11 was provided by him to the local police through telephone and according to him police reached at the spot. In this respect if the statement of P.W.13 Imran Baig inspector is seen, he while appearing as a witness during cross-- examination stated that he was on patrol duty at Jalalpur Sharif when he received information of the alleged occurrence and he left the Police Station at 8-10 a.m. Prior to the receipt of information, which was received by him at 9-00 a.m. He during cross-examination further stated that he did not mention the place where he had received the information nor he mentioned the time of the receipt, of said information nor he recorded the name of the informer. The complainant P.W.11 Shafqat Ali Cheema and Muhammad Boota P.W.12 in their statements have narrated the occurrence with full details. P.W.11 Shafqat Ali Cheema in his statement stated that appellant Muhammad Imran, while driving the car, crossed them, reached near Asjid Ali (deceased), who was ahead of them, stopped the car, came down and made successive five shots with the pistol .30 bore which hit him on right eye, right shoulder, abdomen and on chest. After receiving these injuries his brother fell on the ground. It was 8-30 a.m. And thereafter accused Imran decamped from the spot in his car towards Chak Mujahid Morh. During the cross-examination he stated that the deceased had not fallen down on receipt of first fire shot. Second fire had hit on the left side of shoulder of deceased. At that time he was facing towards west. Even after receipt of second fire the deceased had not fallen down on the ground. The third fire hit at the abdomen of the deceased. He did not fall on the ground even thereafter. Even at that time he was facing towards west. The deceased received fourth fire at his chest. Even at that time he was facing towards west. Thereafter he had fallen down on the ground. 13. If the medical evidence in the light of above mentioned statements of the eyewitnesses is seen, Dr. Muhammad Tariq P.W. I. During cross-examination stated that:-- "I agree with suggestion that after receiving injury No. 1 the deceased was unable to stand. I also agree with suggestion that after receipt of injury No. 1 the deceased could have died instantaneously."
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14. In the light of above discussion in the statement of the complainant P.W.11 Shafqat Ali Cheema and Muhammad Boota P.W.12 is seen, that even after receiving four fire shots the deceased was capable of standing is contradicted by the medical evidence brought on record by the prosecution itself. 15. Another important aspect as earlier mentioned and pointed out by the learned counsel for the appellant whereby it was argued that the witnesses were not present at the spot and the occurrence might have taken place much before the time suggested by the prosecution i.e. 8-30 a.m. Is the evidence of Medical Officer P.W.1 Dr. Muhammad Tariq who while appearing as witness stated that the probable time between the injury and death was within half hour and between death and postmortem examination from 3 to 6 hours. If the postmortem examination report (Exh.PA) is seen the time of postmortem examination is shown as 11-30 a.m. On 7-8-2006. If the opinion of Doctor in the light of the probable duration as given above is seen, if the maximum time elapsed between the death and postmortem examination is seen that is given six hours then the time of death can be safely calculated at 5-00/6-00 a.m. The Doctor even during cross- examination further elaborated this point while stated that:-- "I agree with suggestion that time which are mentioned about the injury and death as half an hour is approximate. The time which I have mentioned…
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