Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: NISAR AHMAD and others VS Respondent: The STATE and others
Court Name: Lahore High Court Judge(s): Muhammad Anwaarul Haq Title: NISAR AHMAD and others vs The STATE and others Case No.: Criminal Appeals Nos.418, 143 and Criminal Revision No,366 of 2013 Date of Judgment:2016-05-18 Reported As: 2016 P Cr. L J 1928 Result: Order accordingly
JUDGMENT
JUDGMENT MUHAMMAD ANWAARUL HAQ, J.---Nisar Ahmed and Wajahat Ahmad appellants along with their co-accused Muhammad Akram, Abdul Jabbar and Naseer Ahmad, were tried in a complaint case titled Sajwar Ahmed v. Nisar Ahmed etc. Pertaining to case FIR No,439 of 2010, dated 27.10.2010 registered at Police Station Gogera, District Okara in respect of offences under sections 302, 337- A(iii), 337-L(2)/34, P.P.C. After conclusion of trial, the learned trial Court vide judgment-dated 13.02.2013 has acquitted co-accused Naseer Ahmed and convicted and sentenced the appellants and their co-accused as under: Nisar Ahmed Under section 302(b), P.P.C. Imprisonment for Life as Taz'ir for committing Qatl-i-amd of Mst. Suraya Bibi with compensation of Rs,4,00,000/- to be paid to the legal heirs of the deceased under section 544-A, Cr.P.C. Or in default thereof to undergo Six month's Simple Imprisonment. Abdul Jabbar Under section 337-A(iii), P.P.C. Two Years' Rigorous Imprisonment as Taz'ir. He was also ordered to pay 10% of Diyat amounting to Rs,1,46,516/- for causing injury with a Sota on the nose of the complainant. Under section 337-L(2), P.P.C. Two Years' Rigorous Imprisonment with Daman of Rs,10,000/- for causing injury with a Sota on the right leg of the complainant Sajwar Ahmed. His punishments were ordered to run concurrently. Muhammad Akram and Wajahat Ahmed
---
## Page 2
Under section 337-L(2), P.P.C. Two Years' Rigorous imprisonment each with Daman of Rs,25,000/- each to be paid to injured/complainant Sajwar Ahmed, for causing injury with Sotas on the ribs of the complainant Sajwar Ahmed. Benefit of section 382-B, Cr.P.C. Was extended in favour of the appellants and his co-accused. 2. Feeling aggrieved by the impugned-judgment, the appellant Nisar Ahmed has challenged his conviction and sentence through Criminal Appeal No, 418 of 2013, the appellant Wajahat Ahmad has challenged his conviction and sentence through Criminal Appeal No,143 of 2013 whereas complainant Sajwar Ahmed has filed Criminal Revision No 366 of 2013 against the appellant Nisar Ahmed seeking suitable enhancement in his sentence as well as in the compensation amount. All the interconnected matters are being disposed of together by this single judgment. It is pertinent to mention that earlier complainant had filed P.S.L.A. No,54 of 2013 against acquittal of co-accused of the appellant namely Muhammad Akram, Abdul Jabbar, Wajahat Ahmad and Naseer Ahmad from the charges under sections 302/109/148/149, P.P.C. But that was dismissed having been withdrawn on 17.03.2016 whereas Crl. Appeal No, 524 of 2013, filed by two co-convicts of the appellant namely Akram and Abdul Jabbar, has also been dismissed having been withdrawn by this Court, today. 3. Initially, complainant Sajwar Ahmed got registered case FIR No,439/2010 dated 27.10.2010 at Police Station Gogera, District Okara in respect of offences under sections 302, 337-A(iii), 337- L(2)/34, P.P.C. On the basis of written complaint (Ex.PA) and being dissatisfied with the investigation, he preferred a private complaint,. (Ex.PB) alleging therein that one year prior to the occurrence, he obtained the agricultural land of one Mahmood Alam on lease in Moza Bhojjan, out of that, he prepared six kanals of land for cultivation and left remaining six kanals pending under the process of cultivation. On 26.10.2010 at about 01:30 p.m. The complainant and his wife Mst. Surayya Bibi were present in the above said agricultural land where accused Nisar Ahmed, Wajahat Ahmad, Naseer Ahmad, Abdul Jabbar and Muhammad Akram all armed with sotas came there on a tractor FIAT having no registration number and started ploughing the crop; the complainant and his wife restrained the accused in result of that, accused Abdul Jabbar gave sota blow, that landed on the right leg of the complainant, accused Muhammad Akram gave sota blow that landed on his ribs in result of that he fell on the ground and accused Abdul Jabbar gave another sota blow on his nose, Wajahat accused also gave sota blow, that landed on his ribs, thereafter, accused Abdul Jabbar, Muhammad Akram and Wajahat gave sota blows on different parts of his body. In the meantime when Mst. Suraya Bibi wife of the complainant tried to rescue the complainant and restrained the accused, Abdul Jabbar, Wajahat and Muhammad Akram accused put her in front of the tractor by lifting from her arms and raised lalkara to the appellant Nisar Ahmed to run over the tractor upon her and then appellant Nisar Ahmad ran over the tractor upon Mst. Suraya Bibi in result of that her ribs were fractured, she became seriously injured and her chest was also damaged. Upon hue and cry, two PWs Fakhar Hayat and Khalid Shah reached the spot witnessed the occurrence and rescued the complainant and his wife from the clutches of accused, thereafter, the accused persons while brandishing their sotas left the spot. The PWs took the complainant and his wife Mst. Suraya Bibi in injured condition to R.H.C. Gogera from where, they were referred to D.H.Q. Hospital, Okara, where their medical examination was done, on the next day, the doctor referred Mst. Suraya Bibi to Jinnah Hospital, Lahore but she succumbed to the injures on the way to Lahore. It has also been alleged in the complaint that the accused had committed the occurrence on the instigation/abetment of accused Naseer Ahmad and in this regard complainant was informed by two PWs Noor Hassan and Safdar Mehmood that at about 10:00 a.m. The accused Naseer Ahmad had instigated his co-accused Nisar Ahmad, Wajahat Ahmad, Abdul Jabbar and Muhammad
---
## Page 3
Akram to occupy the above said leased land of the complainant and his wife, damage their crop and if they create hurdle, commit their murder. Motive behind the occurrence as per complaint was that accused persons wanted to occupy the leased land in possession of the complainant. 4. On 27.10.2010 Jafar Hussain S.I./Investigating Officer (CW-8) visited the place of occurrence, prepared rough site plan (Ex.CW-8/B), and reached to D.H.Q. Hospital, Okara where he took into possession the dead body of the deceased Mst. Suraya Bibi vide recovery memo (Ex.CW-8/C), prepared inquest report (Ex.PG) and application for post-mortem examination (Ex.PF) and sent the dead body of the deceased through Hashim Ali 152/C along with police papers for autopsy. On 28.10.2010, Hashim Ali constable 152/C handed over to him the last worn clothes of the deceased i.e, Kameez (P-2), Shalwar (P-3), Bunyan (P-4), that were taken into possession vide recovery memo (Ex.CW-1/A), then, he recorded statements of the witnesses under section 161, Cr.P.C. And started search of the accused. On 03.11.2010, he arrested Nisar Ahmed accused, who while in police custody led to the recovery of tractor Fiat (P-1) from his Haveli/cattle shed, then, on 23.11.2010 he arrested the accused Abdul Jabbar and Muhammad Akram and on 25.11.2010 accused Abdul Jabbar led to the recovery of sota (P-5) whereas accused Muhammad Akram led to the recovery of sota (P-6). During the investigation, accused Nisar Ahmad, Muhammad Akram and Naseer Ahmed were found involved in the occurrence whereas the accused Wajahat Ahmad was declared innocent in the case. On 17.02.2011, investigation of the case was handed over to Abdul Basit Inspector (CW-9) and after open and secret investigation he concluded that the accused were rightly challaned by the local police. On 20.05.2011, Ghias-ud-Din D.S.P. Investigation Branch (CW-7) was entrusted investigation of this case, who concluded that at the time of occurrence, accused Munir Ahmed (proclaimed offender) was driving the tractor and he is involved in the occurrence. On 19.11.2011, Muhammad Zubair S.I. (CW-4) also partly investigated the case, who also found the accused Munir Ahmad (proclaimed offender) involved in the occurrence regarding murder of the deceased Mst. Suraya Bibi and on his application (Ex.CW-4/B), the learned Area Magistrate issued proclamation against said accused Munir Ahmad (P.O.) 5. After completion of investigation, challan was submitted before, the learned trial court and the appellant and his co-accused Muhammad Akram, Abdul Jabbar, Wajahat Ahmad and Naseer Ahmad were formally charge sheeted on 30.01.2012, to which they pleaded not guilty and claimed trial. To substantiate the charges, prosecution had examined seven witnesses whereas twelve witnesses were examined as court witnesses to prove the charge against the accused. Ocular account was furnished by Sajwar Ahmad complainant-injured (PW-1) and Khalid Abbas (PW-2), Dr. Nosheen (PW-3), Dr. Akbar Ali (PW-4) and Dr. Jawaria Tariq (PW-5) provided medical evidence, Noor Hassan (PW-6) and Safdar Mahmood (PW-7) provided evidence of abetment whereas Muhammad Zubair S.I. (CW-4), Ghias-ud-Din D.S.P. (CW-7), Jafar Hussain S.I. (CW-8) and Abdul Basit Inspector (CW-9) had conducted investigation of this case. 6. Initially, Dr. Nosheen (PW-3) conducted medical examination of Mst. Suraya Bibi and found the following injuries on her body:-- (i) Complain of pain on front of both sides of upper chest. On examination, tenderness positive. Advised X-ray Chest P.A. View. (ii) Complain of pain on left side of upper abdomen. Advised ultrasound of abdomen. In her opinion based upon X-Ray report, the fracture of ribs Nos.2, 3, 4 and 5 seen on left side of chest and there was fracture of left clavicle as well. At two sides soft tissue emphysema seen on left side of chest. Injury No, I was declared as Hashma, this injury was consistent with road traffic
---
## Page 4
accident, the injured was admitted in the emergency in D.H.Q. Hospital, Okara and being in serious condition, she was referred to Jinnah Hospital, Lahore. Probable time elapsed between injuries and medical examination was three to five hours. Dr. Jawairia Tariq (PW-5) conducted post-mortem examination on the dead body of Mst. Suraya Bibi (deceased) and did not observe any external injury on the dead body. On dissection she observed "left clavicle was fractured, left thorasic cavity was full of blood and ribs on the left side were anteriority fractured. The left lung was ruptured on its upper part. The stomach contained three ounces of juices. The bladder was empty. All the other organs of the body were healthy" In her opinion, an extensive injury to the left lung being vital organ, resulted into irreversible shock and respiratory failure and this injury was sufficient to cause death in ordinary course of nature. The injury was ante- mortem and consistent with run over by heavy vehicle. The probable duration between injuries and death was approximately 13-1/2 hours whereas time elapsed between death and post-mortem was 11 hours. On 26.10.2010 Dr. Akbar Ali (PW-4) conducted medical examination of Sajwar Ahmed complainant- injured and observed the following injuries:- i) Contused swelling of 4 cm x 2 cm bridge of nose. Tenderness present. Clotted blood present in both nostrils. X-ray Nose AP-L. ii) Contusion 4 cm 2 cm on outer part of left lower chest. Iii) Contused swelling 3 cm x 2 cm, on front of right knee joint. In the opinion of the doctor, as per X-Ray report, fracture nasal bone seen, so, Injury No,1 was declared as Shajja-e-Hashimah. Injuries Nos. 2 and 3 were declared falling under section 337-L(2), P.P.C. Probable duration of injuries was within 4-5 hours. 7. Appellants and their co-accused when examined under section 342, Cr.P.C. They denied the allegations and professed their innocence. While answering to question, "Why this case against you and why the PWs have deposed against you?" appellants Nisar Ahmed and Wajahat Ahmad replied as under:- "It is a false case, Sajwar Ahmed complainant is husband of the deceased whereas Khalid Abbas Shah PW is a fast friend of our opponent Mahmood Alm Khan. He has made false statement to favour the complainant party. In fact he was not present at the place of occurrence on the fateful day. He is resident of Pindi Sheikh Mosa District Faisalabad which is at a distance of ten KM from the place of occurrence on the other side of river ravi. The occurrence did riot take place in the manner as stated by the complainant party." Answering to another question, "Have you anything else to say?" appellant Nisar Ahmed replied as under:- "I am innocent. In fact the land i.e, Khasra No, 11/17 where the occurrence took place belongs to my father. The land comprising Khasra 11/17 was under our cultivation since before the present occurrence and we had sown charri crop in Khasra No, 11/17 before the occurrence and thereafter we had sown wheat crop in the said Khasra number and accordingly the Khasra gardawri was recorded in the name of my father Naseer Ahmed accused according to copy of Khasra gardawri Ex. CW-12/C. Mahmood Alain aforesaid, our opponent wanted to forcibly occupy our land and as such he managed Muhammad Sajwar complainant to create mischief in this connection. On the day of occurrence at the relevant time. Khasra No,11/17 in the area of village Bhojian was under our cultivation possession. Our servant Munir Ahmed Sheikh was in fact driving the tractor and he was ploughing our land in Khasra No, 11/17 where Sajwar Ahmed complainant his wife Suraya Bibi deceased and others arrived there in order to forcibly occupy the said land which was in our possession since long. They assaulted Munir Ahmed Sheikh our driver and caused injuries to him who in order to save, his life speed away his tractor and in this manner Mst. Suraya Bibi sustained
---
## Page 5
the injuries. 1 was not present at the time of occurrence at the spot and I was not driving tractor at the relevant time. Munir Ahmed Sheikh the driver of the tractor got himself medically examined with the order of the Illaqa Magistrate. He also got recorded his statement under section 164, Cr. P. C. Before the Judicial Magistrate Okara wherein he frankly admitted that he was in fact driving the tractor at the relevant time. Munir Ahmed driver was found involved in this case and the police wanted to arrest him in this case but he absconded and was thereafter declared a proclaimed offender in this case. In these circumstances, it is a case of two versions." 8. The appellants and their co-accused did not make statements under section 340(2), Cr.P.C. However, the appellant Nisar Ahmad produced confessional statement of absconding accused Munir Ahmad in his defence as Ex. DA. The learned trial Court found the appellants and their co- accused guilty and convicted and sentenced them as mentioned above. 9. Learned counsel for the appellants in support of Criminal Appeal No, 418 of 2013 filed by the appellant Nisar Ahmad contends that there is delay of about 28 hours in reporting the matter to the police even no explanation in this regard has been given by the complainant, that makes the prosecution case highly doubtful; that time of death of the deceased given by the complainant i.e, 06:15 p.m. On 27.10.2010 is not corroborating to time given by the doctor in post-mortem report that reflects time between injuries and death 13-1/2 hours meaning thereby the deceased died on 27.10.2010 around 02:00 a.m., thus, ocular account furnished by the prosecution is not supported by medical evidence; that the complainant and his PWs with mala fide intention have converted an accident into a murder case and acquittal of three co-accused of the appellant from the charge of murder, of the deceased, further strengthens the suggestion made by the defence to the PWs that it was an accident; that both the eye-witnesses i.e, Sajwar Ahmed (PW-1). And Khalid Abbas (PW-2) are interested witnesses and they cannot be believed in the absence of any corroborative evidence; that the eye-witnesses remained fail to explain their presence at the relevant time at the place of occurrence; that Dr. Nosheen (PW-3) in her cross-examination' has categorically stated that the injured was in full senses when she was medically examined but even then there is no dying declaration or statement of the deceased in this regard; that an absconding co-accused of the appellant namely Munir Ahmad made judicial confession (Ex. DA) before learned Area Magistrate to the effect that at the time of occurrence he was driving the tractor. Learned counsel in the alternative contends that even if for the sake of argument it is believed that the appellant was driving the tractor even then it is a case of accident and conviction and sentence of the appellant under section 302(b), P.P.C. Is not sustainable. 10. Learned Law Officer assisted by learned counsel for the complainant seriously contesting Crl. Appeal No, 418 of 20113 filed by the appellant Nisar Ahmad, contends that the appellant is specifically nominated in a promptly lodged FIR, wherein all the details are mentioned along with role of the appellant and of his co-accused; that there is sufficient evidence available on record to prove that it was the appellant Nisar Ahmad, who was driving the tractor at the relevant time and has committed murder of the deceased Mst. Suraya Bibi in the backdrop of dispute of possession over the agricultural land; that medical evidence available on record broadly supports the prosecution case; that recovery of Fiat tractor at the instance of the appellant during the investigation further strengthens the prosecution case; that both the eyewitnesses produced by the prosecution remained consistent on all material aspects of this case; that Khalid Abbas (PW-2) is an independent witness whereas complainant Sajwar Ahmed (PW-1) is an injured witness, who had received injuries during the occurrence and being husband of the deceased cannot be expected to substitute the real culprits in this case; that confessional statement of an employee of the appellant (Ex.DA) is just an attempt of the appellant to save his skin; that mere acquittal of three co-accused of the appellant from the charge under section 302, P.P.C. Is not a ground to disbelieve prosecution case as a whole, hence, appellant is not entitled for any leniency.
---
## Page 6
11. I have heard learned counsel for the parties at length, have given anxious consideration to their arguments and have also scanned the record with their able assistance. 12. The prosecution case set-up in the FIR has been narrated by PW-1 Sajwar Ahmed before the trial court in the following words:- "On 26.10.2010 at about 1.30 p.m. I and Mst. Suraya Bibi my deceased wife were present in above said agricultural land in Moza Bhojian where accused Nisar Ahmed, Wajahit, Akram armed with sotas came there on a tractor. Nisar Ahmed accused was driving the tractor and they started ploughing berseen crop which was being sown by me. I and my wife restrained the accused persons upon which Abdul Jabbar gave sota blow which landed on my right leg. Akram accused gave sota blow landed on my ribs due to which I fell on the ground and Abdul Jabbar accused gave an other sota blow on my nose due to which my nasal bone was fractured. Wajahit accused then gave sota blow which landed on my ribs. There upon Abdul Jabbar, Akram and Wajahit gave sota blows on different parts of my body. In the meanwhile my wife Suraya Bibi deceased tried to rescue me and tried to restrain the accused persons. Upon which Abdul Jabbar Wajahit and Akram accused persons put my wife Suraya Bibi deceased in front of tractor by lifting her from her arm and exhorted Nisar Ahmed co-accused to drove away the tractor upon her. Nisar accused drove away his tractor upon Mst. Suraya Bibi deceased due to which her ribs were fractured and she became seriously injured and her chest was also damaged...." 13. Admittedly, occurrence was not reported to the police by the Complainant despite the fact that complainant and his injured wife Mst. Surayya Bibi were taken to the police station on the same day. Complainant in his cross-examination has admitted as under:- "Again said that I along with my injured wife visited PS. Gogera at about 1.30/2 p.m. On 26.10.2010. It is correct that 1 did not make any statement regarding this occurrence when I visited PS. Gogera on 26.10.2010 prior to 6.15 p.m. It is incorrect that since I had not yet built up a case and as such I did not make any statement regarding this occurrence at P.S., either at 1.30 PM or 3. PM on 26.10.2010. I did not get recorded any report at the PS. Gogera on that day." The injured as per statement of Dr. Nosheen (PW-3) was in her full senses but strangely she did not utter even a word regarding the occurrence to the lady doctor to incorporate the same in the column of history of the occurrence. Muhammad Akram 676/14.C, who took Mst. Surayya Bibi to the lady doctor for her medical examination, has not been cited as prosecution witness. In this backdrop, I am left with no other option but to infer under Article 129(g) of the Qanun-e-Shahadat, 1984 that in the life time of the injured Mst. Surayya Bibi, complainant has intentionally not reported the matter to the police when his wife was validly in a position to make her statement before the police on 26.10.2010 when she was taken to Police Station Gogera immediately, after the occurrence as mentioned above. Admittedly she had not reported the manner in which she had received injuries to the lady doctor when she was medically examined on 26.10.2010, and remained admitted in District Headquarter Hospital, Okara till 27.10.2010. From the facts narrated above it appears that statement of Mst. Suraya Bibi even if was recorded during her life time at Police Station Gogera, in District Headquarter Hospital, Okara or before. Muhammad Akram Head Constable, who was accompanying her to the hospital, the same has not been brought on record by the prosecution being unfavourable to the prosecution case. 14. Another important aspect of the prosecution case is that when quarrel took place between the accused and the complainant three accused inflicted numerous injuries with their respective weapons on the person of the complainant Sajwar Ahmad. Medico-Legal Report of Sajwar Ahmad within 4 to 5 hours of the occurrence, reflects only three contusions on his person. Evidence of Sajwar Ahmad complainant (PW-1) keeping in view his Medico-Legal Certificate (Ex.PD) is full of exaggerations and same is the position regarding evidence 'of Khalid Abbas (PW-2). The story as narrated by PW-1 Sajwar Ahmad also reflects that in the main quarrel target was he complainant
---
## Page 7
and not his wife who when intended to rescue her husband then three co-accused of the appellant put her under the tractor and only then she had received injuries. 15. The above referred eye-witness account remained fail to get any necessary corroboration from medical evidence of Mst. Surayya Bibi, especially when Dr. Jawairia (PW-5), who conducted post- mortem examination of the deceased, did not observe any mark of injury on her dead body and in her cross-examination, she has categorically stated "it is correct that if a human body/person is run over by any heavy vehicle like tractor etc. There must be external injuries on that person" Doctor Nosheen (PW-3) who firstly conducted medical examination of Mst. Surayya Bibi, in her cross-examination has stated "The ribs in this case were fractured due to striking with any type of vehicle. " This portion of medical evidence furnished by PW-3 and PW-5, is sufficient to contradict the stance taken by PW-1 and PW-2 that three accused while holding arms of the deceased Mst. Surayya Bibi threw her in front of the tractor and the same was run over by the appellant Nisar Ahmad while crushing the deceased. I have noticed that learned trial Judge has himself concluded that this part of prosecution case remained unproved. Observation of learned trial court in Paragraph No,40 of the impugned-judgment while extending mitigation to the extent of quantum of sentence, is as under:- "Death penalty is not being awarded to accused Nisar Ahmed because during scuffle it was very natural that when accused Nisar Ahmed was trying to run away tractor but he run over the tractor over Suraya Bibi wife of complainant who was forbidding the accused from taking possession of the disputed property. According to medical evidence, ribs of the deceased were broken, her chest was also injured. Admittedly there are four wheels of the tractor and from the medical evidence it is proved that one side of tyres of tractor was run over the deceased Suraya Bibi and had it been deliberately run over the deceased Suraya Bibi, then there would have been different injuries with the measurement of front wheel, injuries would have been on at least legs or foots and head or neck of the…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.