Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Mumtaz Ahmad and others VS Respondent: The State and others
Court Name: Lahore High Court Judge(s): Ch. Mushtaq Ahmad, Sadiq Mahmud Khurram Title: Mumtaz Ahmad and others vs The State and others Case No.:Criminal Appeals Nos. 85, 91 of 2016, Criminal Revision No. 693 and Murder
JUDGMENT
Reported As: 2020 P Cr. L J 1381 Result: Appeal accepted Judgment JUDGMENT SADIQ MAHMUD KHURRAM, J.---The appellants namely Mumtaz Ahmad son of Ghulam Yaseen and Muhammad Javed son of Ghulam Sarwar were tried by the learned Additional Sessions Judge, Multan in case FIR No. 42 of 2011 dated 21.08.201 1 registered at Police Station Shah Rukne Alam, Multan under sections 302, 397, 324, 34, P.P.C. for committing the qatl-i-amd of Mst. Zubaida Bibi wife of Zaheer Ahmad (deceased) during an attempt to commit robbery . The learned trial court vide judgment dated 30.01.2016 convicted Mumtaz Ahmad son of Ghulam Yaseen and Muhammad Javed son of Ghulam Sarwar (convicts) and sentenced them as infra: Mumtaz Ahmad son of Ghulam Yaseen : i) Death under section 302(b)/34, P.P.C. as Tazir for committing qatl-i-amd of Mst. Zubaida Bibi (deceased) and directed to pay Rs.1 Lac as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased, in case of default thereof, the convict was further directed to undergo six months of simple imprisonment. The convict was ordered to be hanged by his neck till dead. ii) Rigorous imprisonment for seven years under section 397/34, P .P.C. Muhammad Javed son of Ghulam Sarwar : i) Imprisonment for life under section 302(b)/34, P.P.C. as Tazir for committing qatl-i-amd of Mst. Zubaida Bibi (deceased) and directed to pay Rs.50,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased, in case of default thereof, the convict was further directed to undergo six months of simple imprisonment, ii) Rigorous imprisonment for seven years under section 397/34, P .P.C. iii) Rigorous imprisonment for five years unde r section 324, P.P.C. with the direction to pay Arsh amount to the tune of Rs.20,000/- to Aziz ur Rehman (injured) and in default thereof, to further undergo six months of simple
---
## Page 2
imprisonment. Muhammad Javed (convict) was granted the benefit available under section 382(B) of Cr.P.C. and his sentences were ordered to run concurrently . 2. Feeling aggrieved, Mumtaz Ahmad son of Ghulam Yaseen (convict) lodged Criminal Appeal No.85 of 2016 against his conviction and sentence. Feeling aggrieved, Muhammad Javed son of Ghulam Sarwar (convict) lodged Criminal Appeal No.91 of 2016 against his conviction and sentence. The learned trial court submitted Murder Reference No.32 of 2016 under section 374, Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to appellant Mumtaz Ahmad son of Ghulam Yaseen. The complainan t of the case lodged Criminal Revision No. 693 of 2016 seeking enhancement of sentence of Muhammad Javed son of Ghulam Sarwar . We intend to dispose of both the criminal appeals mentioned above, Criminal Revision No.693 of 2016 and Murder Reference No.32 of 2016 through this single judgment. 3. According to the prosecution story , set forth in the oral statement (Exh.PD) of Zaheer Ahmad (PW-3) , the complainant along with his sons Khurram Shahzad (PW-4), Asif Shahzad (PW-1) Aziz ur Rehman (PW-2), Amir Shahzad, Atta ur Rehman (not produced ) and his wife Mst. Zubaida Bibi (deceased) were present in their house when at about 10.30 A.M four unknown persons armed with pistols entered the house of the complainant. As per the oral statement (Exh.PD), the complainant party tried to catch the assailants who started firing indiscriminately at them with their pistols and one fire hit on the right temporal region of Mst. Zubaida Bibi (deceased) who died at the spot as a result of the same whereas Khurram Shahzad (PW-4) and Aziz Ur Rehman (PW-2) were also injured as the result of the firing of the accused. The injured were sent to the Nishtar Hospital. It was also recorded in the oral statement (Exh.PD) that three of the accused had slightly long stature whereas the fourth one was of healthy body and all were wearing shalwar and qameez, who could be identified by the witnesses if brought before them. It was also recorded in the oral statement (Exh.PD) that the assailants fled away from the spot on a white car when the neighbours were attracted to the spot. The said oral statement (Exh.PD) of Zaheer Ahmad (PW-3) was reduced into writing by Muhammad Afzal, SI (PW-10) and formal FIR (Exh. PD/1) was registered at the Police Station by Muhammad Iqbal, ASI (PW -8). 4. The learned trial court framed charge against the appellants on 22.10.2013, to which the appellants pleaded not guilty and claimed trial. 5. The prosecution/complainant in order to prove its case got recorded statements of twenty four witnesses. Asif Shahzad, (PW-1), Aziz Ur Rehman (PW-2), Zaheer Ahmad, (PW-3) and Khurram Shahzad (PW-4) gave evidence regarding the ocular account. Faisal Shahzad (PW-6) identified the dead body of the deceased at the time of post mortem. Muhammad Hanif 1038/C (PW-7) stated that on 30.12.201 1, he executed the non-bailable warrants of the accused Muhammad Iqbal (convicted and sentenced separately), Muhammad Hafeez and Shakir (both proclaimed offenders). Abdul Rehman 2793/C (PW-12) stated that on 21.08.201 1 he escorted the dead body for post mortem and also was handed over the last worn clothes of the deceased. Muhammad Saqlain 2198/C (PW-13) stated that on 23.10.201 1, he took the sealed parcel said to contain blood stained earth to the office of Chemical Examiner (SIC) and deposit the same on 25.10.201 1 and on 15.08.2013 he witnessed the recovery of .30-bore pistol (P3) from the possession of Muhammad Iqbal (convicted and sentenced separately). Irfan Hayat, draftsman (PW-15) prepared the scaled site plan of the place of occurrence (Exh.PO) on 11.10.201 1. Muhammad Imran Farooq, Judicial Magistrate (PW-16) got conducted the identification parade of the appellant Muhammad Javed on 12.10.201 1 and prepared the report (Exh.PP). Javed Iqbal, Judicial Magistrate (PW-17) got conducted the identification parade of the appellant Mumtaz Ahmad on 26.09.201 1 and prepar ed the report (Exh.PQ). Ishfaq Hussain Sial, Judicial Magistrate (PW-18) got conducted the identification parade of Muhammad Iqbal (convicted and sentenced separately) on 27.07.2013 and prepared the report (Exh.PR). Muhammad Rafique 1638/C ( PW- 21), stated that on 08.10.201 1 he witnessed the recovery of pistol (Exh. P6) from the possession of Muhammad Javed, appellant. He further stated that on 09.01.2012 he was handed over a sealed parcel said to contain six empties which he deposited in the office of Punjab Forensic Science Agency , Lahore and on 18.01.2012 he was handed over two sealed parcels said to contain pistols .30-Bore which he deposited, in the office of Punjab Forensic Science Agency , Lahore. Nasrullah Khan, TASI (PW-22) stated that on 21.09.201 1 he witnessed the
---
## Page 3
arrest of Mumtaz Ahmad, appellant and a pistol 30-Bore (Exh.P4), car (Exh. P8) were also recovered from the possession of the appellant Mumtaz Ahmad at the time of his arrest. Rana Muham mad Farooq, SI (PW-23) stated that on 21.09.201 1 he arrested Mumtaz Ahmad, appellant and a pistol .30-Bore (Exh.P4), car (Exh. P8) were also recovered from the possession of the appellant Mumtaz Ahmad at the time of his arrest. Abdul W,aheed 879/C (PW-24) stated that on 21.08.201 1, he was handed over the complaint (Exh.PB) which he took to the police station for the registration of the FIR. Muhammad Afzal, SI (PW-10) investigated the case on the first day i.e 21.08.201 1 and detailed the facts of the investigation in his statement recorded by the trial court. Muhammad Zulfiqar Khan, SI, (PW-14) conducted the investigation of the case from 23.07.2013 till 15.08.2013 and detailed the facts of the investigation in his statement recorded by the trial court. Sabir Hussain, SI (PW-19) investigated the case from 8.9.201 1 till 12.10.201 1 and narrated the facts of the investigation conducted by him in his statement before the leaned trial court. Qamar Abbas, SI (PW-20), investigated the case from 08.07.2013 till 18.07.2013 and narrated the facts of the investigation conducted by him in his statement before the leaned trial court. 6. The prosecution got examined Dr. Ghazala Safdar (PW-11), who was posted as Senior Demonstrator , Forensic Department of Nishtar Medical College, Multan and on 21.08.201 1 conducted the postmortem examination of Zubaida Bibi (deceased). Dr. Ghazala Safdar (PW-11), while examining Zubaid a Bibi (deceased) observed as under: "INJURIES: Injury No.1 is fire arm entry wound of 3/4 x cm in circumference with inverted abraded collar on the back of left side of skull 7 cm from the left ear. Injury . No.2 An exist wound of 3 cm 2 cm on the left partial area of skull 12 cm from the left ear and 13 cm from the left eye brow . OPINION: In my opinion, cause of death is injury No.1 which is inflicted by fire arm leading to, and hemorrhage which was sufficient to cause death in ordinary course of nature. The probable time between injury and death is five to 10 minutes while between death and post mortem is 3 to 6 hours." The prosecution also got examined Dr. Asif Jamil Ansari (PW.-11), who was posted as Senior Demonstrator , Forensic Department of Nishtar Medical College, Multan., and on 21.08.201 1 examined the injured Khurram Shahzad and observed the following injuries on his person. INJURIES. 1-A A lacerated wound of entry measuring 3 /4 x 3/4 x DNP (depth not probed). With inverted margins and abraded collar , on the right inguinal region. No blackening/burning or tattooing was seen. 1-B A lacerated wound of exit measuring 1 cm x 1 cm x DNP with everted margins on the right buttock, on the lateral side. Injury No.1 was KUO for ward report/ex-ray . kind of weapon. By fire arm weapon. Dr. Asif Jamil Ansari (PW.-11), on 21.08.201 1 ALSO examined the injured Aziz ur Rehman and observed the following injuries on his person:- INJURIES. 1. A lacerated wound of sixe 3/4 cm x 3/4 cm into DNP with inverted margins and abraded collar on left inguinal region. No blackening /tattooing or burning was seen. 1.b A lacerated wound of exit measuring 1 cm x 3/4 cm DNP With evened margins on the left buttock, 6 cm from the natal cleft. 7. The learned ADPP on 05.01.2016 gave up PW Bashir Ahmad, ASI as being unnecessary and on 08.01.2016 closed the prosecution evidence after tendering the report of Chemical Examine r for Punjab, Multan (Exh.PZ), Report of Serologist (Exh.P AA) and report of Forensic Science Laboratory Lahore (Exh. PBB). 8. After the closure of prosecution evidence, the learned trial court examined appellants namely Mumtaz Ahmad son of Ghulam Yaseen and Muhammad Javed son of Ghulam Sarwar under section 342, Cr.P.C. and in answer to question why this case against you and why the PWs have deposed against you, they replied that they were innocent and had been falsely involved in the case. They further stated that they had not committed the occurrence and had been made a scapegoat in the case in order to show efficiency by the police. The appellants namely
---
## Page 4
Mumtaz Ahmad son of Ghulam Yaseen and Muhammad Javed son of Ghulam Sarwar opted not to get themselves examined under section 340(2), Cr .P.C. and did not adduce any evidence in their defence. 9. On the conclusion of the trial, the learned Additional Sessions Judge, Multan convicted and sentenced the appellants as referred to above. 10. The contention of the learned counsel for the appellants precisely is that whole case is fabricated and false. That the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence. They further contended that the statements of Asif Shahzad, (PW-1), Aziz Ur Rehman (PW-2), Zaheer Ahmad, (PW-3) and Khurram Shahzad (PW-4) were not worthy of reliance. They further contended that the appellants are neither nominated in the FIR nor in the statements of witnesses recorded under section 161 of Cr.P.C. and the test identification parades conducted were full of procedural defects and of no legal worth and value. They also argued that the recoveries were result of fake proceedings. They finally submitted that the prosecution has totally failed to prove the case against the accused beyond the shadow of doubt. 11. On the other hand, learned Deputy Prosecutor General along with the learned counsel for the complainant contended that the prosecution has proved its case beyond shadow of doubt by producing independent witnesses. Learned counsel further argued that the deceased died as a result of injuries suffered at the hands of the appellants in a joint enterprise. They further contended that the medical evidence also corroborated the statements of Asif Shahzad, (PW-1), Aziz Ur Rehman (PW-2), Zaheer Ahmad, (PW-3) and Khurram Shahzad (PW-4). They further argued that the recoveries from the appellants also corroborated the ocula r account. They contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offenders with the innocent in this case. Lastly , they prayed for the rejection of appeal. 12. We have heard the learned counsel for the appellants and learned Deputy Prosecutor General along with the learned counsel for the complainant and with their assistance perused the record and evidence recorded during the trial carefully . 13. The whole prosecution case revolves around the statements of Asif Shahzad, (PW-1), Aziz Ur Rehman (PW-2), Zaheer Ahmad, (PW-3) and Khurram Shahzad (PW-4). These witnesses namely Asif Shahzad, (PW-1), Aziz Ur Rehman (PW-2), Zaheer Ahmad, (PW-3) and Khurram Shahzad (PW-4) were related to each other . Their relationship with the deceased is also on record. There is no denial to this fact that the wife of the complainant namely Mst. Zubaida Bibi (deceased) lost her life and Aziz ur Rehman (PW.-2) and Khurram Shahzad (PW-4) received injuries, but the fact remains that neither the names of the assailants were mentioned in the written application (Exh.PD) nor in the statement s of the witnesses recorded under section 161 of Cr.P.C. We have noted with grave concern that out of the four eye-witnesses of the occurrence, two witnesses, namely Zaheer Ahmad (PW-3) and Khurram Shahzad (PW-4) did not take any part in the three test identification parades held on 12.10.201 1, 26.09.201 1 and 27.07.201 1 with regard to the identification of the appellants and their co-accused Muhammad Iqbal (convicted and sentenced separately). No explanation has been offered by the said two witnesses namely Zaheer Ahmad (PW-3) and Khurram Shahzad (PW-4) as to why they did not join any of the three test identification parades held on 12.10. 2011, 26.09.201 1 and 27.07.201 1 with regard to the identification of the appellants. Their failure to join the said test identification parades has forced us to disbelieve their evidence with regard to the identity of the accused at the place of occurrence. Both these witnesses namely Zaheer Ahmad (PW- 3) and Khurram Shahzad (PW-4) did not know the appellants prior to the occurren ce and had not named them in their statements recorded by the Investiga ting Officer. It was a requirement of law that they should have joined the test identification parades so as to prove the factum of identity of the appellants by them as being the assailants present at the place of occurrence. Khurram Shahzad (PW -4) during cross-examination admitted as under:- "I had not nominated Muhammad Iqbal accused in my statement under section 161, Cr.P.C. recorded at Nishtar Hospital. Later on the police told me that I was injured with the fire of Muhammad Iqbal. I cannot tell as to when the police told me the name of lqbal accused. T ill today no other statement was recorded by the police". Khurram Shahzad (PW -4) during cross-examination further admitted as under:- "It is correct that I did not tell to the police in my statement under section 161 of Cr.P. C. as to which accused caused injuries to the PWs nor I named them while making my statement under section 161 of the Cr . P. C."
---
## Page 5
The august Supreme Court of Pakistan has held in various cases that the identity of the assailants in Court by the witnesses has no legal value and it is imperative for the witnesses, who earlier did not know the assailants, to have identified them during a test identification parade. Reliance is placed on the case of Asghar Ali alias Sabah and others v . The State and others (1992 SCMR 2088 ) wherein, it has been held as under:- "The identification in Court of a person produced as an accused months after the event could not satisfy the requirements of law for proving the identify of the culprit." Similarly , in the cases of Ghulam Shabbir Ahmad v. The State and another (2011 SCMR 683) and Siraj Ul Haq and another v . The State (2008 SCMR 302 ), the same principle of law has been reiterated. 14. We have also noted with grave concern that as per the witness namely Khurram Shahzad (PW-4), the names of the appellants and the alleged roles played by them in the occurrence were told to him by the police just after ten fifteen days of the occurrence. This witness Khurram Shahzad (PW-4) during cross-examination admitted as under:- "After ten fifteen days of the occurrence I came to know the names of the accused persons present in Court and the police officers of police station New Multan told the names of accused persons and the police also told me particular arising each accused by his names by firing on the PWs......I was told by the police that Mumtaz accused made fire on the person of my mother". When as per his own admission, every detail regarding the assailants was disclosed to the said witness namely Khurram Shahzad (PW-4) by the police just after ten or fifteen days of the occurrence, then the holding of test identification ,parades of the appellants even otherwise was an exercise in futility . The question begs an answer that when the police had already informed Khurram Shahzad (PW-4), real brother of the deceased and son of the complainant, about the detailed particulars of the accused and the role played by them during the occurrence, then for what purpose the test identification parades were held. The description was so clear that out of the whole city of Multan, the appellants were identified by the police prior to their arrest and the said information was shared with the witness Khurram Shahzad (PW-4). This illustrates the futility of holding the test identification parades of the appellants with regard to establishing their identity . Similarly , Aziz-ur-Rehman (PW-2) also admitted during cross- examination that when Mumtaz Ahmad (appellant) was arrested he was told the name of Mumtaz Ahmad, appellant by the police and he also joined the police investigation when the accused persons were arrested. As such the test identification parades lose their authenticity and have no value in the eyes of law . 15. As per the prosecution case, out of the four eye-witnesses who appeared before the Court, only two witnesses namely Asif Shahzad (PW-1) and Aziz Ur Rehman (PW-2) joined the three test identification parades held to establish the identity of the assailants. The August Supreme Court of Pakistan in the case of Mian Sohail Ahmed and others v. The State and others (2019 SCMR 956) has enunciated guiding principles for the appreciation of evidence regarding the test identification parade and the statements of the witnesses participating in the same. We have scrutinized the statements of two witnesses namely Asif Shahzad (PW-1) and Aziz Ur Rehman (PW-2) who joined the three test identification parad es held to establish the identity of the assailants in light of the said judgment. The August Supreme Court of Pakistan in the case of Mian Sohail Ahmed and others v. The State and others (2019 SCMR 956 ) has held as under:- "13. In the late 1960s, the courts around the world , began to set the standard for reviewing eye-witness identification evidence . Reliability and credibility of the witness was termed as the linchpin in determining the admissibility of identification testimony US Supreme Court in the case of Manson v Brathwaite , UK Court of Appeal (Criminal Division) in Regina v. Turnbull and Another , New Jersey Supreme Court in State v Madison and Oregon Supreme Court in State v. Classen settled the following factors for assessing the reliability of the witness:- (1) the opportunity of the witness to view the suspect at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description of the suspect; (4) the level of certainty demonstrated at the confrontation (seeing the accused in court); and (5) the time between the crime and the confrontation (seeing the accused in court).12 13 14. 15 16 17 18
---
## Page 6
It is interesting to note that these factors were drawn from earlier judicial rulings and not from scientific research . The scientific research refutes the notion that memory is like a video recording, and that a witness needs only to replay the tape to remember what happened. Human memory is far more complex. The memory is a constructive, dynamic, and selective process. The process of remembering consists of three stages: acquisition-"the perception of the original event"; retention-"the period of time that passes between the event and the eventual recollection of a particular piece of information"; and retrieval-the "stage during which a person recalls stored information . The process of memory retention and retrieva l may be affected by a number of factors. The scientific literature divides those variables into two categories: system and estimator variables . System variables are factors like lineup procedures which are within the control of the criminal justice system and in our jurisprudence are referred to as the Test Identification Parade. Whereas Estimator variables are factors related to the witness - like distance, lighting, or stress - over which the legal system has no control.22 Our courts have marginally attended to this aspect of witness reliability before placing reliance on the identification evidence (see above). The scientific research23 establishes that the following non-exhaustive list of "estimator variables" negatively affect the memory process:- i. Stress: Even under the best viewing conditions, high levels of stress can diminish an eye-witness' ability to recall and make an accurate identification. It may be noted "while moderate levels of stress improve cognitive processing and might improve accuracy , an eye-witness under high stress is less likely to make a reliable identification of the perpetrator ." ii. Weapon Focus: When a visible weapon is used during a crime, it can distract a witness and draw his or her attention away from the culprit. "Weapon focus" can thus impair a witness' ability to make a reliable identification and describe what the culprit looks like if the crime is of short duration. iii. Duration: The amount of time an eye-witness has to observe an event may affect the reliability of an identification. There is no minimum time required to make an accurate identification, however , a brief or fleeting contact is less likely to produce an accurate identification than a more prolonged exposure. " iv. Distance and Lighting: A person is easier to recognize when close by, and that clarity decreases with distance. We also know that poor lighting makes it harder to see well. Thus, greater distance between a witness and a perpetrator and poor lighting conditions can diminish the reliability of an identification. v. Witness Characteristics: Characteristics like a witness' age and level of intoxication can affect the reliability of an identification. Children between the ages of nine and thirteen who view target-absent lineups are more likely to make incorrect identifications than adults. vi. Characteristics of Perpetrator: Disguises and changes in facial features altered between the time of the event and the identification procedure affects the accuracy of an identification. vii. Memory Decay: Memories fade with time and memory decay "is irreversible"; memories never improve. As a result, delays between the commission of a crime and the time an identification is made can affect reliability .30 The scientific research referred to above has not only appeared in the peer reviewed journals but also has been considered "credible" by various courts in different jurisdictions.31 New Jersey Supreme Court in State v. Henderson observed that "virtually all of the scientific evidence" that had emerged in recent decades "reveals that an array of variables can affect and dilute memory and lead to misidentifications." Also see State v . Lawson . 14. The laws of evidence maintain that…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.