Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Najaf Khan Muhammad Ayub The State VS Respondent: The State Najaf Khan Najaf Khan
Court Name: Lahore High Court Judge(s): Syed Shahbaz Ali Rizvi, Shahid Hameed Dar Title:Najaf Khan Muhammad Ayub The State vs The State Najaf Khan Najaf
Khan Case No.:Criminal Appeal No.175 of 2009 Criminal Revision No.95 of 2009 Murder Reference No.34/RWP of 2009 Date of Judgment:2015-09-09 Reported As: 2015 LHC 6127 Result: N/A Judgment Syed Shahbaz Ali Rizvi, J: - This judgment shall dispose of Criminal Appeal No.175 of 2009 titled as Najaf Khan v. The State filed by Najaf Khan, appellant against his convictions and sentences, Criminal Revision No.95 of 2009 titled as Muhammad Ayub v. Najaf Khan filed by Muhammad Ayub (PW-11), brother-in-law of Khan Muhammad (deceased) and maternal uncle of Bashir Ahmad (deceased) for enhancement of amount of compensation as well as Murder Reference No.34/RWP of 2009 titled as The State v. Najaf Khan sent by the learned trial court for confirmation or otherwise of sentence of death awarded to Najaf Khan, appellant, under Section 374 of the Code of Criminal Procedure, 1898, being originated from the same judgment dated 25.05.2009 passed by the learned Addl. Sessions Judge, Attock in case FIR No.243 dated 19.12.2005, offences under Sections 302, 449 and 34 PPC, registered at Police Station Pindigheb District Attock, whereby the appellant was convicted under Section 302(b), PPC for committing murder of Muhammad Khan and sentenced to death. He was further convicted under Section 302(b)/34 PPC for the murder of Bashir Ahmad and sentenced to imprisonment for life with the direction to pay Rs.1,00,000/- as compensation on two counts to the legal heirs of both the deceased as envisaged under Section 544-A of the Code of Criminal Procedure, 1898 and in default thereof to undergo rigorous imprisonment for six months on two counts. He was also convicted under Section 449 PPC and sentenced to rigorous imprisonment for ten years with the direction to pay Rs.50,000/- as fine and in default thereof to undergo simple imprisonment for six months. The sentences of imprisonment were ordered to run concurrently. He was, however extended the benefit of Section 382-B of the Code of Criminal Procedure, 1898.
---
## Page 2
2. Brief facts of the case, as disclosed by Muhammad Mehboob, complainant (since dead) in the FIR (Exh-PQ), are that he is labourer by profession and married. He had three brothers and three sisters. Mst. Rehmat Jan is his elder sister who was married with Muhammad Khan (deceased) about forty years ago and had four sons and two daughters. Her elder son Bashir Ahmad, about 6/7 months ago, abducted Mst. Najma Bibi daughter of Abdur Rehman alias Sarfraz upon which, her parents got registered a criminal case against Bashir Ahmad which was fixed for hearing in the court of learned Sessions Judge, Attock on 20.12.2005. On 19.12.2005 in evening time, he (complainant) along with his younger brother Muhammad Ayub (PW-11) had gone to the house of Bashir Ahmad (deceased) in order to plan to go for hearing of the said case. He, his brother Muhammad Ayub (PW-11), Muhammad Bashir (deceased), Khan Muhammad (deceased) were sitting in a room of Dhok. Gas cylinder was lit whereas, the women and the children were in the adjacent room. At about 07.00 p.m, Najaf Khan (appellant), Abdur Rehman alias Sarfraz (since P.O) armed with 12 bore guns and Muhammad Ramzan, accused (since acquitted in a separate trial) armed with hatchet came there. Muhammad Ramzan raised lalkara that Muhammad Khan and Bashir Ahmad be murdered. Meanwhile, Bashir Ahmad just got up from the cot when Abdur Rehman alias Sarfraz (since P.O) made a straight fire with 12 bore gun at Bashir Ahmad which hit him on his chest and different parts of his body who fell down at the spot. Najaf Khan, after entering into the room, made second fire with 12 bore gun at Muhammad Khan who was sitting on the cot which landed on his chest and different parts of his body. After receiving the fire shots, Bashir Ahmad and Muhammad Khan succumbed to the injuries at the spot. On their hue and cry, Najaf Khan etc. Fled away from the spot. On their alarm and noise of the firing, Ghulam Muhammad and Ansar Mehmood (PW-9) also came there. 3. Najaf Khan (appellant) was arrested in this case on 14.01.2008 by Muhammad Iqbal, SI (PW-15) who, on 23.01.2008, while in police custody, after making disclosure, got recovered 12 bore gun (P-6) along with five live cartridges (P-7/1-5) which was taken into possession vide recovery memo Exh- PK. After completion of investigation, report under Section 173 of the Code of Criminal Procedure, 1898 was sent to the learned trial court. 4. Learned trial court after observing all the pre-trial codal formalities, charge sheeted the appellant to which he pleaded not guilty and claimed to be tried. 5. The prosecution, in order to prove its case, produced as many as sixteen witnesses during the trial. Muhammad Mehboob, complainant of the case died before recording of his statement, therefore, the ocular account, in this case, was furnished only by Muhammad Ayub (PW-11). Muhammad Yousaf (PW-10) is the Criminal Appeal No.175 of 2009 witness of recovery of 12 bore gun (P-6) along with five live cartridges (P-7/1-5) allegedly recovered at the instance of the appellant. The medical evidence was furnished by Dr. Maqsood Ahmad (PW-12) who, on 20.12.2005 at 07.00 a.m, conducted the post mortem examination on the dead body of Muhammad Khan (deceased) and noted the following injuries on his body: - "1- Three multiple exit fire arm wounds at the left mid axillary line over 4th/5th and 6th rib measuring 1.3 x 1 cm, 1.5 x 1 cm, .5 x 1 cm; 2. An exit fire arm wound in left mid axillary line just above injury No.1 measuring about 0.5 x 0.5 CM;
---
## Page 3
3. Two entry fire arm wounds on the left side of chest, one about 1.5 CM lateral to the mid clavicular line measuring 1.5 x 1.5 CM. No exit wound found (Bullet removed from chest cavity after dissection). Second wound entry wound 3 CM medical to the mid clavicular line at 5th rib measuring 1.5 x 1.5 CM with injury No.2 as the exit wound; 4. An entry wound in the middle of sternum at the level of 5th rib measuring 2.5 x 2 CM with no exit wound (bullet removed from chest cavity at dissection; 5. Multiple entry wound at the lower half of sternum measuring 1.5 x 1 CM, 1 x 1 CM, 1.5 x 1.5 CM with injury No.1 as exit wound. (On dissection it was found that it ruptured the heart and left lung badly along its course). 6. Fire arm wound on right side of chest at 3rd inter costal space measuring 4 x 2 CM; 7. Multiple entry wounds measuring 2.5 x 1.5 CM, 2.5 x 3 CM, 1 x 1 CM, 1.5 x 1 CM on the posterior aspect half right arm with bone (lower third of humerus badly destroyed); 8. Multiple exit wounds on medical aspect of right arm measuring 4 x 2.5, 1 x 1.5 CM, .5 x .5 CM, 1 x .5 CM, 2 x 1.5 CM, 1 x 1 CM." In his opinion, the death occurred due to injury No.5 which was ante mortem and caused by firearm leading to haemorrhage respiratory failure shock and death. The injuries were incompatible with life under ordinary circumstances in normal course of life. Probable duration between injuries and death was 15 to 30 minutes and between death and post mortem examination ten to twelve hours approximately. On the same day, he conducted the post mortem examination on the dead body of Bashir Ahmad (deceased) and noted the following injuries on his body: - "1-Abrasion on the left eye brow (blackness present); 2-Abrasion on the left cheek measuring about 4.5 x 0.5 CM (blackness present); 3-An entry fire arm wound on left shoulder interiorly in front of the acromion measuring 4.5 x 4.5 CM; 4-An entry fire arm wound on posterior medial aspect of the arm measuring 8 x 5 CM; 5-An exit fire arm wound with muscles and bone exposed on the left arm antero medially; 6-An entry fire arm wound on the right side of chest at 7th intercostals space 1 CM lateral from the mid sternal line measuring 1 x 1 CM. (On dissection it was found piercing the heart with a through and through track across both ventricles and hitting a portion of left lung. Bullet was found in the left chest cavity); 7-A fire arm wound on the right side of the chest at 5th intercostals space 2 Cm from mid sternal line measuring 1 x 1 Cm. Similarly another fire arm wound on left side of chest at second intercostals
---
## Page 4
space 1.5 CM lateral from mid sternal line measuring 1 x 1 CM; 8-An entry fire arm wound on left side of chest 3 CM from mid sternal line at 7th inter costal space measuring 1 x 1 CM (On dissection it was found that it pierces the diaphragm past through portion of the liver sparing another abdominal viscera, bullets was removed from the anterior abdominal wall (right side) through a skin incision; 9-An entry fire arm wound on left side of the chest at 5th rib 2.5 CM lateral to the mid clavicular line measuring 1 x 1 CM (on dissection bullet was removed from the left chest cavity after passing through left lung fracturing the rib on its way; 10-An entry fire arm wound on the left posterior axillary line about 10 CM below from posterior border of the axillary triangular (bullet removed near the entry side); 11-An entry fire arm wound at the lower back just lateral to the mid line on left side (bullet removed near entry side; 12-Cork of the gunshot was at the left mid axillary line under the skin, out side the chest cavity about 10 CM below from the entry wound at the shoulder;" In his opinion, the death in this case was caused due to injury No.6 which was ante mortem, caused by firearm leading to haemorrhage respiratory arrest, shock and death. The injuries were incompatible with life under ordinary circumstances of normal course of life. Probable duration between injuries and death was 15 to 30 minutes whereas between death and post mortem 10 to 12 hours. Musarrat Hussain Shah, SI (PW-14) and Muhammad Iqbal, SI (PW-15) are the Investigation Officers of this case and Bashir Ahmad Awan, Draftsman (PW-6) prepared scaled site plan (Exh-PF) of the place of occurrence whereas, rest of the witnesses are formal in nature. 6. The statement of the appellant, under Section 342 of the Code of Criminal Procedure, 1898, was recorded. He refuted the allegations levelled against him and professed his innocence. In reply to a question that as to "Why this case against you and why the PWs have deposed against you?, the appellant deposed as under:- "I am innocent. I was not present at the spot. I was involved in this case being the real brother of Abdur Rehman accused and throwing wider net the whole family has been involved in this case falsely as complainant was in habit of throwing a false wider net to involve innocent persons in the present case. I and Muhammad Ramzan was falsely involved in this case and Muhammad Ramzan was tried earlier and was acquitted by disbelieving Muhammad Ayyub PW and in the way Muhammad Ayyub also got registered another case FIR No.150 dated 8.7.2006 and in that case by disbelieving Muhammad Ayyub, learned Addl. Sessions Judge acquitted Mst. Zarina and Mst. Ilyas Begum. As I was witness in the kidnapping case of Mst. Najma Bibi, so with this enmity I was involved falsely in the present case. I am totally innocent. Abdur Rehman accused had been living separately at the time of occurrence and I have no motive to commit the occurrence. I have eight minor children, five are sons and three are daughters and all are below the eighteen years of age and I am the only bread earner of the family. Muhammad Ayyub PW is the real maternal uncle of Bashir Ahmad deceased and brother-in-law of Muhammad Khan deceased and after the
---
## Page 5
registration of the kidnapping case against his 'Bhanji' Parveen Akhtar and Bashir Ahmad and Ansar Mahmood in which I was cited as a witness and this made grudge in the mind of Ayyub PW against me and finding an opportunity involved me falsely in connivance with Mahboob, wife of Muhammad Khan and others. It was the talk of the town that the occurrence took place at 10/11.00 PM at night in the darkness and no one saw the occurrence. It was an un-seen murder. Ayyub and Mahboob PWs were opted to become a false witness of the occurrence due to abovesaid enmity of my becoming witness in the kidnapping case." 7. The appellant neither opted to appear as his own witness on oath as provided under Section 340(2) of the Code of Criminal Procedure, 1898 in disproof of the allegations levelled against him nor did he produce evidence in his defence. 8. The learned trial Court vide its judgment dated 25.05.2009, found the appellant guilty, convicted and sentenced him as mentioned above. 9. Learned counsel for the appellant, inter alia, contends that there is delay of more than four hours in reporting the matter to the police; that the appellant has falsely been implicated in this case due to enmity; that the prosecution produced only Muhammad Ayyub (PW-11) to furnish the ocular account and there is no corroboration to his statement; that Muhammad Ayyub (PW-11) is a chance witness as he is not the resident of the place where this occurrence took place; that even as per prosecution case, women and children were also present in the same house and they were the natural witnesses but none of them was produced to corroborate the statement of Muhammad Ayyub (PW-11), therefore, an adverse inference under Article 129(g) of the Qanoon-e- Shahadat Order, 1984 is to be drawn against the prosecution; that post mortem examination of the deceased was also conducted with the delay; that there are contradictions between the ocular account and the medical evidence; that the alleged recovery of crime weapon at the instance of the appellant is doubtful; that the prosecution could not prove the alleged abscondance of the appellant; that prosecution remained fail to prove motive part of the occurrence; that this appeal may be accepted, conviction and sentence of the appellant may be set aside, he may be acquitted and the Murder Reference be answered in the negative. 10. Conversely, learned Deputy Prosecutor General assisted by learned counsel for the complainant vehemently opposes the contentions raised by the learned counsel for the appellant and, inter alia, maintains that there is no delay in reporting the matter to the police; that the complainant (since dead) and Muhammad Ayyub (PW-11) have no mala fide for false implication of the appellant in this case; that Muhammad Ayyub (PW-11) has explained his presence at the place of occurrence at the relevant time; that it is the quality and not the quantity of evidence which weighs with the courts and it is the prerogative of the prosecution to produce as many witnesses as it thinks fit; that conviction can be recorded on the basis of solitary statement; that there is no material contradiction between the ocular account and the medical evidence; that prosecution case is fully corroborated by the medical evidence which is further corroborated by the recovery of crime weapon at the instance of the appellant; that prosecution's case is further corroborated by the evidence of abscondance of the appellant; that motive part of occurrence is admitted by the defence; that the prosecution has proved its case against the appellant beyond any reasonable doubt; that this appeal may be dismissed and the Murder Reference be answered in the affirmative; that Criminal Revision filed by the complainant may also be allowed and amount of compensation be enhanced.
---
## Page 6
11. We have heard the arguments of learned counsel for the appellant, learned Deputy Prosecutor General assisted by learned counsel for the complainant and also scanned the record with their assistance. 12. We have observed that as per crime report (Exh-PQ), the occurrence took place on 19.12.2005 at 07.00 p.m while the matter was reported to the police by complainant Muhammad Mehboob (since dead) at 11.30 p.m and the prosecution evidence does not carry any explanation for inordinate delay of about four and half hours in reporting the matter when the distance between the place of occurrence and police station is only eighteen kilometers. Similarly, the post mortem examinations of the dead bodies were conducted at 07.00 a.m. With the delay of about twelve hours after the occurrence and the prosecution has not explained this delay also. It is held repeatedly by this Court and by the Hon'ble Supreme Court of Pakistan that such unexplained delay is normally occasioned due to incomplete police papers necessary to be handed over to the Medical Officer to conduct the postmortem examination of the deceased which happens only when the complainant and police are busy in consultation and preliminary inquiry regarding the culprits in such cases of un-witnessed occurrence. Hence, we are of the view that the presence of the witnesses at the scene of occurrence at the relevant time is doubtful. In this regard, reliance is placed on the case of Muhammad Riaz v. The State (2009 P. Cr. LJ 1022 Lahore) wherein, this Court has observed as under: - "13. ...It is also not found correct that the F.I.R. Had been got registered with promptitude as the occurrence had allegedly taken place at about 5-00 a.m. While the postmortem examination was conducted at 1-00 p.m. And there is every possibility that the intervening period was consumed in concocting a story and to await for the relatives of the deceased, who were made witnesses subsequently, otherwise, they have failed to establish their presence at the spot..." Same view was affirmed by the Hon'ble Supreme Court of Pakistan in the case of Irshad Ahmed v. The State (2011 SCM R 1190), wherein the Hon'ble Supreme Court was pleased to observe as under:- "3. ...We have further observed that the post-mortem examination of the deadbody of Shehzad Ahmed deceased had been conducted with a noticeable delay and such delay is generally suggestive of a real possibility that time had been consumed by the police in procuring and planting eyewitnesses and in cooking up a story for the prosecution before preparing police papers necessary for getting a post-mortem examination of the deadbody conducted..." 13. To prove its case through the ocular account, the prosecution has produced a solitary witness Muhammad Ayyub (PW-11), brother-in-law of deceased Muhammad Khan and real maternal uncle of deceased Bashir Ahmad, an Army personnel who is not the resident of place of occurrence. Though Muhammad Ayub (PW-11) has tried to explain his reason for being present at the scene by stating that he along with his brother Mehboob, complainant (since dead) had gone to the house of their sister, wife of deceased Muhammad Khan, to plan how to attend the date of hearing of case against Bashir Ahmad deceased before the court at Attock on the next day i.e. 20.12.2005, yet the same is not convincing as he was not party to the criminal case registered regarding the motive occurrence of abduction of Mst. Najma Bibi daughter of Abdur Rehman alias Sarfraz accused (since P.O). Even otherwise, the prosecution has not been able to prove the fact that on 20.12.2005, the said case was fixed for hearing. Hence, we are of the view that Muhammad Ayyub (PW-11) is a chance witness besides being an interested one.
---
## Page 7
There is no cavil to the proposition that the conviction can be recorded on the basis of testimony of a solitary witness but it is equally relevant that same should be of an unimpeachable character and confidence inspiring. Muhammad Ayyub (PW-11), during his cross examination, has candidly admitted that he was also the complainant and eyewitness of the subsequent occurrence of murder of Muhammad Mehboob, his brother, complainant of the case in hand and two, out of three nominated accused persons namely, Ghulam Farid, Mst. Zarina Bibi wife of Abdur Rehman alias Sarfraz and Mst. Ilyas Begum, both the lady accused were acquitted of the charge after the trial in that case. Muhammad Ayyub (PW-11) also admitted that he never filed any appeal against the said judgment of acquittal. It is quiet surprising that in both the occurrences i.e. Occurrence of this case as well as of the supra mentioned subsequent murder case, Muhammad Ayyub (PW-11) was the eyewitness as alleged by him and he was disbelieved by the learned trial court to the extent of two of the accused persons as mentioned above and similarly, in the present case, admittedly, in a separate trial of Muhammad Ramzan, co-accused who was, per prosecution case, present at the time of occurrence being armed with a hatchet and he also raised commanding lalkara to his sons, too stands acquitted by the learned trial court while disbelieving the testimony of Muhammad Ayyub (PW-11) and in this view of the matter, the creditability of his deposition qua the appellant is to be looked in with utmost care and caution. We have given our keen consideration to the ocular account and the medical evidence which in our view are inconsistent with each other as according to site plan (Exh-PF) prepared by Bashir Ahmad Awan, Draftsman (PW-6), the distance between the appellant and the deceased Muhammad Khan when he was allegedly shot by the appellant was five feet while Muhammad Ayyub (PW-11), in his statement to bring the ocular account in consonance with the medical evidence has tried to increase the same distance by one foot by saying that the distance was five to six feet and also that the appellant shot the fire while keeping his 12 bore gun of about 31/4 feet length having barrel of about two feet length, on the side of his body and without stretching his arms which though, is not usual but if it is admitted correct even then the barrel of gun of two feet length reduces the distance between the firer and the deceased by, at least, two feet leaving the total distance between the gun and the deceased, three feet only and when a shotgun is fired from a distance of three feet only, normally, the fire should make a single aperture with irregular and lacerated edges surrounded by blackened, scorched and tattooed skin corresponding to the size of bore of the muzzle of the gun while a 12 bore gun if fired from a distance of six feet, the central aperture is surrounded by separate opening in an area of about two inches in diameter made by a few pellets of shot which spread out before reaching the mark. The skin surrounding the aperture may not be blackened and scorched, but is tattooed to some extent. At a distance of 12 feet, the charge of the shot spreads widely and enters the body as individual pellet producing separate openings in an area of five to eight inches in diameter depending on the choke but without causing blackening, scorching or tattooing of the surrounding skin. It is also important to note here that if a card wad is found in the wound, it indicates that the shot was fired from less than two yards while its absence suggests more than two yards. Moreover, multiplicity of entry wounds at different locations shown at the seat of injuries No.5 & 7 also transpires that the fire shot was made from a distance of more than six feet. In this regard, reference may be made to the Modi's Textbook of Medical Jurisprudence and Toxicology 24th Edition, Chapter 24. In the present case as is observed by the Medical Officer Dr. Maqsood Ahmad (PW-12), none of the entry wounds is having blackening, tattooing or scorching around it and no card wad could be found or removed from the entry wound as is evident from the description of injuries No.2, 4 and 5 which clearly reflects that the distance between the assailant and the deceased Muhammad Khan has not been narrated correctly by the eyewitness Muhammad Ayyub (PW-11) that renders his presence at the scene of
---
## Page 8
occurrence doubtful. The foreign bodies described as bullets by the Medical Officer lodged in the body of Muhammad Khan (deceased) were removed by him as is shown in the description of injuries No.3 & 4. Muhammad Ayyub (PW-11), being a serving Army personnel, cannot be expected to be not able to distinguish the different kinds of firearms. Similarly, despite all the above-mentioned discrepancies available in the prosecution evidence i.e. Medical evidence and the ocular account especially regarding the use of 12 bore gun by the appellant and the observations of the Medical Officer regarding the availability of the bullets lodged in the wounds removed by him, the said foreign bodies taken into possession by the Investigation Officer through recovery memo Exh-PE and the crime empty cartridge allegedly secured by the Investigation Officer Musarrat Hussain Shah, SI (PW14) from the place of occurrence through Exh-PI were never sent to the Forensic Science Laboratory for comparison by the ballistic expert to ascertain the truth about kind of weapon used and this apparent and unchaste avoidness on the part of investigation agency, nonchalance of the complainant surely reflects adverse to the veracity of the prosecution's case. Another important…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.