Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: MUHAMMAD IDREES VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Manzoor Ahmad Malik, Hassan Raza Pasha Title: MUHAMMAD IDREES vs THE STATE Case No.: Criminal Appeals Nos. 60 , 63 and , Murder Reference No.433 of 2004 Date of Judgment:2010-07-14 Reported As: 2011 YLR 224 Result: Appeal dismissed
JUDGMENT
JUDGMENT MANZOOR AHMAD MALIK, J.---This judgment shall dispose of Criminal Appeal No.60 of 2004 (Muhammad Idrees v. The State); Criminal Appeal No.63 of 2004 (Muhammad Nadeem Khan v. Muhammad Aamer etc.), filed by the complainant against the acquittal of Muhammad Aamer and Ahmad Ali and Murder Reference No.433 of 2004, sent by the learned trial Court, for confirmation or otherwise, of the sentence of death awarded to the appellant, as all these three matters have arisen out of the same judgment dated 10-2-2004 passed by the learned Sessions Judge, Jhelum, whereby, Muhammad Idrees appellant was convicted under section 302(b), P.P.C. For the murder of Muhammad Asim (deceased) and sentenced to death with a further direct section to pay a compensation of Rs.100,000 to the legal heirs of Muhammad Asim (deceased) as provided under section 544-A, Cr.P.C. He was further convicted under section 324, P.P.C. And sentenced to ten years' R.I with a fine of Rs.50,000 in default whereof to further undergo six months' R,I. He was also convicted under section 337-L/324, P.P.C. And sentenced to five years' R.I with a direction to pay Daman of Rs.25,000 to Muhammad Waseem injured P.W. Apart from above, the appellant was awarded conviction under section 392 P.P.C. And sentenced to ten years' R.I and to pay a fine of Rs.50,000 in default whereof to further undergo six months' R.I. All the substantive sentences awarded to the appellant were directed to run concurrently and benefit of section 382- B, Cr.P.C. Was extended to him. However, benefit of doubt was extended to co-accused Muhammad Aamer and Ahmad Ali and they were acquitted from the charges levelled against them. 2. Brief facts of the case, as given by P.W.16 Muhammad Nadeem Khan (complainant) in the F.I.R.
---
## Page 2
(Exh.PK/1), are that he, along with his brothers, used to run "Popular Currency Shop" in Shandar Chowk and was a resident of Lalazar Colony, Jhelum. On 1-7-2002 at about 9-45 a.m., he along with Tariq Mehmood, were talking with each at the corner of the street while his two brothers, namely, Muhammad Asim and Muhammad Waseem, were going towards their said shop in car bearing No.JMC 8282 with a black colour bag on its rear seat containing Pakistani currency of Rs. 1,55,35,000. According to the complainant, when his brother Asim, who was driving the said car, took turn to Lalazar Road, an unknown person while armed with a pistol, tried to stop the said car at pistol point but his brother Asim did not stop the car, upon which, the said unknown accused fired a straight shot which hit on the right cheek of Asim followed by repeated shots by the said accused as a result whereof his other brother Muhammad Waseem was also seriously injured. It has been mentioned in the F.I.R. That the said unknown accused took the bag of currency and fled away towards Mujahidabad. The complainant has also stated in the F.I.R. That his brother Asim succumbed to the injuries at the spot qua which he informed the Emergency Police. As per F.I.R., besides the complainant, many other people followed the said unknown accused towards Mujahidabad. On the GT Road Mujahidabad, the said accused tried to snatch a motorcycle from Shahid Sultan and Qamar Sultan with the intention to run away but they overpowered him and during the scuffle the unknown accused also received injuries. On apprehension, two pistols of .30 bore were recovered from him. After a while, Emergency Police reached at the spot. Shahid Sultan and Qamar Sultan handed over the person of unknown accused to the police along with torn bag of currency and two pistols. The complainant stated that he identified the bag in the presence of Tariq Mehmood which contained Rs.1,24,25,000 recovered from the possession of the unknown accused and which was the same bag looted by the accused from the car of his brothers. He also identified the said unknown accused as the same person who made fired at his brothers and looted the currency bag. Thereafter, according to the complainant, he left Amjad Mehmood and Shahzad to take care of the dead body of his brother Muhammad Asim and reported the matter to the police. 3. The machinery of law was set into motion by Muhammad Saleem Inspector (P.W.17) who reduced into writing the statement of Muhammad Nadeem Khan complainant (P.W.16) at Mujahidabad as (Exh.PK) which formed basis of the formal F . I. R . (Exh. PK/1). He found the unknown person in the injured condition and prepared his injury statement as Exh.PF/PF-1 and got him shifted to the hospital under the escort of Muhammad Akram A.S.-I. Shahid Hussain P.W.14 of Rescue 15 delivered to him torn bag P-3 as well as Pistols P-1 and P-2 which were snatched from the accused which were taken into possession vide memo Exh.PM and Exh.PN both attested by Shahid Sultan and Qamar Sultan. Separate complaint for registration of an F.I.R. Under the Surrender of Illicit Arms Act, 1997 against the said accused person for possessing unlicensed weapons was drafted by him and sent to the Police Station. Thereafter, Muhammad Saleem Inspector (P.W.17) came to the place where the dead body of Muhammad Asim was lying. He prepared Inquest Report (Exh.PS) and dispatched the dead body to the mortuary for post-mortem examination with an application Exh.PT through Safdar Constable (P.W.13). He also recorded statements of Shahid Sultan P.W.11, Shahid Hussain Inspector Rescue-15 (P.W.14) and Qamar Sultan, at the place of occurrence. He inspected the spot and secured blood stained earth vide memo. Exh.PO attested by Zahid and Amjad Mehmood (P.W.12) from both the places where the dead body of Muhammad Asim was lying and where Muhammad Waseem, injured P. W.15 received bullet injuries. Six empties P4/1-6 of .30 bore pistol were secured by him vide Memo Exh.PP attested by Amjad Mehmood (P.W.12) and Shahid while another crime empty P9 was found in the chamber/magazine of pistol Pl. P.W.17 also secured car P5 (which was being driven by Asim deceased and injured Waseem) and a Mobile Phone P9 vide memo Exh.PQ. He then drafted a
---
## Page 3
rough site plan of the occurrence as Exh.PL and then recorded statements of Amjad Mehmood P.W.12 and Shahzad (not produced). Then he proceeded to the District Headquarters Hospital, Jehlum and prepared injury statement of Muhammad Waseem (Exh.PD/PDI). After seeking permission of the doctor, the Investigating Officer, through a friend/interpreator of the said Waseem, recorded his statement. After postmortem examination, last worn clothes of the deceased i.e. Shalwar P6, Shirt P7 and string P8 (all blood stained), were taken into possession vide memo Exh.PR attested by Safdar constable. The said Investigating Officer (P.W.17) also recorded statements of Safdar Constable P.W.13 and Shahid Hussain P.W.8 and Tariq Mehmood (not produced) who had identified the dead body of the deceased. The said Investigating Officer then came back to the place near Al-Majid Hotel, where Qamar Sultan and Shahid Sultan had a grappling with Muhammad Idrees accused, prepared rough Site Plan Exh.PV. Thereafter, he returned to the Police Station and handed over the case property to the Moharrir for safe custody in the Malkhana who handed over the same to Javed Iqbal Constable P.W.18 for taking to the concerned quarters. The Investigating Officer formally arrested the unknown accused on 5-7-2002 who disclosed his name as Muhammad Idrees, His first version was also recorded by the police who then was sent to the judicial lock on 20-7-2002. During the course of investigation, he also recorded statements of Masroor Azam, Sohail Aslam, Akhtar Mehmood on 6-7-2002 and statements of Saukat Ali P.W.9 and Muhammad Basharat P. W.10 on 30-7-2002. After completion of investigation, the appellant was found guilty, challan was prepared and submitted before the learned trial Court, copies were distributed to the appellant as required under section 265-C of the Code of Criminal Procedure, charge was framed to which appellant pleaded not guilty and claimed trial. 4. In order to prove its case, prosecution produced as many as 18 witnesses during the trial. The appellant was examined under section 342, Cr.P.C. He neither produced any evidence in defence nor opted to depose on Oath as required under section 340(2), Cr.P.C. In answer to question "why this case against you and why the P.Ws. Have deposed , against you", appellant stated as under:-- "The occurrence was committed by some unknown persons. Shahid Sultan and Qamar Sultan P.Ws. Were collided with those unknown persons who were running away with the cash. Shahid Sultan and Qamar Sultan P.Ws. Snatched the cash from those persons and managed to escape from the spot. The large number of persons were looting the money from the bag. I was preventing them from doing so. I was arrested by the police on suspicion and police tortured me, as a result of which I became unconscious. I was not present at the time of alleged occurrence at the actual place of occurrence. I am innocent and have been falsely implicated in this case. The P.Ws. Are related inter se, they have been tutored and cooked up." However, the learned trial Court convicted and sentenced the appellant as detailed above. 5. Learned counsel for the appellant, in support of this appeal, contends that no identification parade was conducted in this case through Muhammad Waseem injured P.W.15 despite the fact that the appellant was not named in the F.I.R.; that the presence of P.W.16 Muhammad Nadeem Khan (complainant) near the place of occurrence is highly doubtful because he was unable to state how Muhammad Waseem injured P.W.15 was removed from the place of incident; that even dead body of Muhammad Asim (deceased) remained at the spot for a considerable time and how he was shifted to hospital has also not been explained by the prosecution; that had P.W.16 Muhammad Nadeem Khan (complainant) been present at the place of occurrence, being real
---
## Page 4
brother of Muhammad Asim (deceased), he must have accompanied the dead body of his real brother to the hospital; that it is the case of P.W.16 Muhammad Nadeem Khan (complainant) that he informed Rescue 15' whereas it is on the record through the statement of Shahid Hussain Inspector Rescue-15 (P.W.14) that it was one Zulfiqar who informed Rescue 15; that the said P.W. Has stated that on his return from the place, where the appellant was allegedly apprehended, he got recorded a Rapat No.8 but there is no details of the incident in the said Rapat including the names of the persons who arrested the appellant; that the cash allegedly recovered during the course of investigation was never produced before the Court, so, the charge under section 392, P.P.C. Against the appellant remained unproved; that Shahid Hussain Inspector Rescue-15 (P.W.14) has also stated that the motorcycle was lying near the car of the deceased whereas the prosecution case is that the appellant was not riding on any motorbike at the time of occurrence; that allegedly six crime empties were taken into possession from the place of first incident but the report of the Fire- arm Expert is that four empties were fired from one pistol and the remaining two from the other pistol, whereas, no witness has stated that the appellant used two pistols at the same time coupled with the fact that no crime empty was recovered from the place of second incident which shows padding on the part of the police; that Muhammad Saleem Inspector (P.W.17), who investigated the case, has stated that he came to know about the name of the appellant on 5-7-2002 for the first time while Shahid Sultan (P.W.11) has stated that P.W.16 Muhammad Nadeem Khan (complainant) disclosed the name of the appellant as Muhammad Idrees; that the appellant, as per prosecution case, remained unknown till 5-7-2002 but even then no identification parade was conducted; that in the F.I.R. It was stated that the deceased along with his brother Muhammad Waseem injured P.W. Was carrying a cash of Rs.1,55,35,000 whereas as per prosecution an amount of Rs.1,24,25,000 was recovered from the appellant at the time of his arrest and there is no evidence on the record where the remaining amount has gone; that statement of P.W.16 Muhammad Nadeem Khan (complainant), being real brother of the deceased, cannot be believed while the statements of the remaining witnesses are also not convincing and reliable, therefore, the appellant, in the afore- referred circumstances, is entitled to acquittal. However, learned counsel for the appellant lastly contends that if this Court is not convinced with the argument of acquittal then it is not a case of capital sentence as the deceased received only one shot and there is contradiction in ocular account and the medical evidence qua the seat of injury on the body of the deceased. 6. On the other hand, the learned Deputy Prosecutor-General for the State assisted by the learned counsel for the complainant, while vehemently opposing this appeal, contends that it was a broad-daylight occurrence in which the appellant was properly seen by P.W.16 Muhammad Nadeem Khan (complainant) and Muhammad Waseem injured P.W.15; that after the incident, the complainant chased the appellant along with others and ultimately, the appellant was apprehended at another place which was at a distance of about 1-1/2 kilometers from the place of first incident, where the appellant tried to snatch the motorcycle but failed in his attempt and was also injured. He was overpowered and apprehended by Shahid Sultan (P.W.11) and Qamar Sultan (given-up) and till that time he was carrying the bag containing the cash which he took from the car of the deceased and the injured Waseem; that in the cross-examination, which was conducted on behalf of the appellant, his presence at the spot at the time of his arrest has not been denied; that he was medically examined on the same day which further shows his involvement in the occurrence; that as far as contention of the learned counsel for the appellant that the name of the appellant was not mentioned in the F.I.R., it has been clarified in the "Karwai Police" under the statement of the complainant that the appellant was injured and found unconscious at the spot which finds further support from the statement of the doctor who found him in the said condition; that there is absolutely no evidence on the record even to suggest that there was any enmity
---
## Page 5
between the appellant and P.W.16 Muhammad Nadeem Khan (complainant), Muhammad Waseem injured P.W.15 or Shahid Sultan (P.W.11); that even the said Shahid Sultan has no relationship with the complainant party which rules out false involvement of the appellant in this case; that the description of injury by the P. Ws. Is immaterial because there is only one firearm injury on the body of the deceased and since the witnesses are not trained in the field, so, they are not expected to give such like details, therefore, the ocular account in this case is in line with the medical evidence; that the appellant was carrying two pistols and it cannot be expected from the witnesses to notice whether the appellant was using one or two pistols but the fact remains that the report of the Firearm Expert is positive which shows that two pistols were used by the appellant in this occurrence; that, in order to prove its case, the natural eye-witness account has been furnished by the prosecution and despite cross-examination the defence could shake nothing from the testimony of the witnesses; that even otherwise, in such like cases substitution is a rare phenomenon; that the prosecution has proved its case against the appellant beyond any shadow of doubt and that the conviction and sentence awarded to the appellant by the learned trial Court may be maintained. However, learned counsel for the complainant has frankly conceded that the prosecution was required to produce the cash amount which was taken into possession during the course of investigation and only bag P3 was produced but submits that for this lapse, the maximum benefit which can be extended to the appellant is his acquittal from the charge under section 392, P.P.C. So far as filing of Criminal Appeal No.63 of 2004 against the acquittal of Muhammad Aamer and Ahmad Ali is concerned, learned counsel has frankly conceded that the prosecution evidence against the acquitted accused is not sufficient for their conviction, therefore, he does not press this appeal which is dismissed as having not been pressed. 7. We have heard learned counsel for the parties at length, have given anxious consideration to their arguments and have also scanned the evidence on record with the able assistance of learned Advocates for the parties. 8. Occurrence in this case took place on 1-7-2002 at about 9-45 a.m., the matter was reported to the police by P.W.16 Muhammad Nadeem Khan (complainant) through Fard Bayan (Exh. PK) at about 11-30 a.m. Which was reduced into writing by Muhammad Saleem Inspector (P. W.17) at about 11-50 a.m. And formed basis of the F.I.R. (Exh.PK/1) while the distance between the place of occurrence and the Police Station was about one kilometer. 9. It is an unfortunate occurrence in which one person, named, Muhammad Asim lost his life. In this case, appellant was admittedly arrested on the same day which fact finds mention in the "Fard Bayan" made by P.W.16 Muhammad Nadeem Khan (complainant) for registration of the F.I.R. Though name of the appellant is not mentioned in it but the fact remains that in the "Karwai Police" it also finds mention that the appellant, at the time of his apprehension, was lying in the injured condition and was unconscious. This factum finds further support from the statement of P.W.1 Dr. Mehmood Ahmad who has stated that at the time of medical examination of the appellant (being an unknown accused) he was unconscious. Therefore, there was sufficient explanation on the part of the prosecution for non-mentioning name of the appellant in the F.I.R. 10. The prosecution, in order to prove its case, has relied on (i) ocular account, (ii) medical evidence (i.e) recovery of cash, and (iv) recovery of pistols and report of the Firearm Expert.
---
## Page 6
11. As far as ocular account is concerned, it was furnished by P.W.16 Muhammad Nadeem Khan (complainant), Muhammad Waseem injured P.W.15 and Shahid Sultan (P. W.1.1). 12. P.W.16 Muhammad Nadeem Khan is the complainant of the case. He is the real brother of Muhammad Asim (deceased). The occurrence took place near his house, therefore, his presence at the spot is quite natural. He has given full description of the incident in the F.I.R. And before the learned trial Court. He has stated that the shot fired by the appellant with .30 bore pistol hit on the cheek of Muhammad Asim (deceased), whereas, the injury was found on the neck of the deceased but the fact remains that there is only one firearm injury on the body of the deceased. This witness was cross-examined but the defence could shake nothing from his testimony. Moreover, statement of this witness was corroborated by the statement of Muhammad Waseem injured P.W.15 who was sitting in the car along with his deceased brother Muhammad Asim. He was injured in the same occurrence at the hands of the appellant. He was deaf and dumb and appeared before the learned trial Court where his statement was recorded through an interpreter as provided under Article 3 of the Qanun-e-Shahadat Order, 1984. He is the most important eye-witness of the occurrence. He has given full details of the incident and it has not even, been suggested to him by the defence that he was not present in the car and was not injured. Although both these eye- witnesses are real brothers of the deceased but it is settled law that in the absence of any deep rooted enmity between the parties, their statements cannot be discarded. So, we accordingly believe their statements. We have fortified our view by a judgment of the august Supreme Court of Pakistan reported in the case of Farooq Khan v. The State (2008 SCM R 917), wherein, at page 921, it has been held as held:-- "11. ........... There is a rule that the statement of an interested witness can be taken into consideration for corroboration and mere relationship with the deceased is not 'sufficient' to discredit the witness particularly when there is no motive to falsely involve the accused. The principles for accepting the testimony of interested witness are set out in Nazir v. The State .(PLD 1962 SC 269) and Shehruddin v. Allahi Rakha (1989 SCM R 1461) (emphasis supplied) Muhammad Waseem injured P.W.15 received three firearm injuries and was medically examined by P.W.1 Dr. Mehmood Ahmad on 1-7-2002 at about 10-00 a.m. Who noted following injuries on his person:-- "(1) A lacerated wound about 1 x 1 cm on the anterior aspect of left thigh with clinically fractured left femur. It was a wound of entry. (2) A lacerated wound of 1 x 1 cm on dorsomdial aspect of right firearm. It was a wound of entry. (3) Another lacerated wound about 1 x 1 1/2 cm on dorsolateral aspect of right forearm. It was an exit of Injury No.2. (4) A lacerated wound 1/2 x 1/2 cm on the back of right shoulder. It was a wound of entry; and (5) Another lacerated wound 1/2 x 1 cm on front of right upper chest. It
---
## Page 7
was an exit of Injury No.4." According to the opinion of the doctor, the probable time between the receipt of injuries and medical examination was about 1 to 2 hours which fits in the time of occurrence. The same doctor i.e. P.W.1 Dr. Mehmood Ahmad, on 1-7-2002 at about 12-30 (midday) conducted the postmortem examination on the body of deceased Muhammad Asim and found Injury on his body:- "(1) A lacerated wound on back of neck about 1 cm x 1 cm. It was a wound of entry. (2) A lacerated wound 1-1/2 cm x 1 cm on right cheek. It was a wound of exit". According to the opinion of the said doctor, the probable time between the receipt of injuries and death was immediate and between death and postmortem was between 4 to 6 hours which coincides with the time of incident. 13. The next important piece of evidence produced by the prosecution is the statement of Shahid Sultan (P.W.11) who has no enmity with the appellant and no relationship with the complainant side. He has stated that he was going along with his brother Qamar Sultan (given up P.W.) on a motorcycle and on the way when the appellant tried to snatch their motorcycle, a scuffle took place in which the appellant was injured and then over-powered. His statement finds support from the injury statement of the appellant prepared by P.W.1 Dr. Mehmood Ahmad who noted following injuries on his person during his medical examination on 1-7-2002 at about 11-36 a.m. i.e. On the day of occurrence:-- "(1) A lacerated wound 4 cm x 1-1/4 cm x muscle deep on occipital. Region. The patient was unconscious. (2) A lacerated wound 3 cm x 1/4 cm x muscle deep on occipital region about 9 cm behind right ear. (3) Bruise about 3-1/2 cm x 2 cm on upper surface of scalp. (4) Abrasion about 1 cm x 1/2 cm on left side of bridge of nose. (5) Abrasion 1 x 1/6 cm on left cheek just below left eye. (6) Abrasion 1-1/2 cm x 1/4 cm on front of thigh. (7) Bruise about 2-1/2 cm on front of thigh. (8) Abrasion 1 cm x 1/2 cm on upper surface of left shoulder." According to the opinion of the doctor, duration of these injuries was within four hours which fits in with the time of occurrence and shows that these injuries were received by him, as alleged by Shahid Sultan (P. W. 11), at the time of his apprehension at the spot when he tried to snatch the motorcycle.
---
## Page 8
14. Apart from above, the appellant was apprehended at the spot by Shahid Sultan (P.W.11) and Qamar Sultan (not produced) from whose possession two pistols (Exhs.P1 and P2) and cash was handed over to the police. Six crime empties were also recovered from the spot which were taken into possession by the police and in this regard report of the Forensic Science Laboratory (Exh.PV) is positive which further strengthens the prosecution case. 15. Learned counsel for the appellant laid much stress on the point that there was a contradiction between the ocular account and the medical evidence so far as injury on the person of the deceased Muhammad Asim is concerned. He has elaborated that as per prosecution, the shot fired by the appellant hit on the cheek of the deceased Asim while according to the doctor who conducted postmortem examination on the body of deceased, the said injury was found on the neck, therefore, the presence of eyewitnesses at the spot is doubtful. It is to be observed that both the…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.