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Petitioner: Ijaz VS Respondent: The State
Court Name: Lahore High Court Judge(s): Ch. Mushtaq Ahmad, Sadiq Mahmud Khurram Title: Ijaz vs The State Case No.: (1) Murder Reference No.141 of 2017 (2) Criminal Appeal No. 395 of 2014 Date of Judgment:2019-10-22 Reported As: 2020 YLR 1620, 2019 LHC 3618 Result: N/A
Judgment SADIQ MAHMUD KHURRAM, J.The appellant namely Ijaz son of Allah Rakha was tried by the learned Additional Sessions Judge, Mailsi along with his co-accused namely Akhtar son of Muhammad Rafique, Muhammad Ramzan son of Muhammad Nawaz, Aslam son of Allah Bakhsh, Muhammad Shahzad son of Allah Rakha and Muhammad Irshad son of Allah Rakha ( all five since acquitted) in case instituted upon the private complaint titled "Muhammad Nawaz Vs. Akhtar and five others" ( relating to FIR No. 55 of 2012 dated 02.02.2012 registered at Police Station City Mailsi District Vehari in respect of offences under sections 302 and 34 PPC) for committing the Qatl-i-Amd of Muhammad Shaban son of Muhammad Arif (deceased) and Mst. Naseem Bibi wife of Muhammad Shaban (deceased). The learned trial court vide judgment dated 01.09.2014 convicted Ijaz son of Allah Rakha (convict) and sentenced him as infra: Ijaz son of Allah Rakha: Death under section 302(b) PPC as Tazir for committing Qatl-i Amd of Muhammad Shaban son of Muhammad Arif (deceased) and directed to pay Rs.100,0 00/- 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. (The appellant was not convicted for committing Qatl-i Amd of Mst. Naseem Bibi wife of Muhammad Shaban (deceased). The co-accused of the appellant namely Akhtar son of Muhammad Rafique, Muhammad Ramzan son of Muhammad Nawaz, Aslam son of Allah Bakhsh, Muhammad Shahzad son of Allah Rakha and Muhammad Irshad son of Allah Rakha were however acquitted by the learned trial court. 2. Feeling aggrieved, Ijaz son of Allah Rakha (convict) lodged Criminal appeal No.395 of 2014 against his conviction and sentence. The learned trial court submitted Murder Reference No.141 of 2017 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to appellant Ijaz son of Allah Rakha.
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We intend to dispose of the Criminal Appeal No. 395 of 2014 and Murder Referen ce No.141 of 2017 through this single judgment. 3. Precisely the facts necessary , as divulged in the statement of Muhammad Nawaz son of Karim Bakhsh (PW-8) are as under:- "I along with Abdul Hameed and my son Muhammad Javaid went to the house of Ahmad Yar in Gharibabad on 1.2.2012. We have proceeded to his house to condole the death of his grand-son. We stayed there at night. At 2 a.m night we heard the noise of hue and cry from the house of my nephew Shaban. I, Abdul Hameed and my son Muhammad Javaid reached there. We saw Akhtar accused armed with pistol 12 bore, Ijaz accused armed with repeater , Aslam and Ramzan accused armed with sotas. When we reached there Aslam and Ramzan raised alarm not to come forward. Akhtar fired with his pistol on Shaban which hit on the left side of his neck. Ijaz fired which hit on the right side of chest of Shaban. Ijaz fired second shot which hit on the right ribs of Shaban. On hearing the noise of firing Naseem Mai wife of Shab an opened the door of her room. Akhta r accused fired at Naseem Mai which hit her on the right side of chest. The accused persons after making fires ran away from the spot with their respective weapons. I, Abdul Hameed and Javaid attended the injured, who have died at the spot. Imtiaz Mai sister of Ijaz, contracted Nikah with Shaban without the consent of her family members. Due to that grudge the accused persons have committed the murder of Shaban and Naseem Bibi. The accused persons have committed these murders on the abetment of Irshad and Shahzad accused. After half an hour of the occurrence police reached at the spot. I recorded my statement Ex. PC as above to the police. Javaid and Abdul Hameed also recorded their statements before police on the same line. On 4.2.2012 Nadeem and Fida came to me and told that on 28.1.2012 they were waiting for bus proceeding to Karachi at Colony Chowk Mailsi and saw that Akhtar, Ijaz, Aslam and Ramzan were present, Irshad and Shahzad came there and said that they have arranged arms and ammunition , murder Shaban and Naseem Mai. They have arranged their arrest in some other case and they will rescue you from this case. I bring PWs Nadeem and Fida Hussain to the I.O who recorded their statements before I.O. When I obtained copy of FIR on the next day of occurrence it came into my knowledge that police has not nominated those accused who were narrated by me. I submitted application Ex-PJ to DPO Police reached in my house and recorded my statement and that of PWs. Police has not investigated this case fairly and impartially and becoming collusive with the accused persons declared them innocent. Hence, I have filed this private complaint Ex-PK." 4. The accused were summoned to face trial in the case instituted upon the priva te complaint titled "Muhammad Nawaz Vs. Akhtar and five others" (relating to FIR No. 55 of 2012 dated 02.02.2012 registered at Police Station City Mailsi District Vehari in respect of offences under sections 302 and 34 PPC) for committing the Qatl-i-Amd of Muhammad Shaban son of Muhammad Arif (deceased) and Mst. Naseem Bibi wife of Muhammad Shaban (deceased). The learned trial court framed the charge against the accused on 16.10.2012, to which the appellant and his co-accused pleaded not guilty and claimed trial. 5. The complainant in order to prove its case got recorded statements of as many as twelve witnesses. The ocular account of the case was furnished by Muhammad Nawaz (PW. 8) and Abdul Hameed (PW. 10). Muhammad Ali 142/C (PW-1) stated that on 16.04.2012 he executed warrants of arrest (Exh.P A) of the accused Muhammad Ramzan (since acquitted). Liaqat Ali, ASI (PW-2) recorded the formal FIR (Exh.PC/1) and on 02.02.2012 he received sealed parcels said to contain blood stained earth and empties which on 16.02.2012 he handed over the said sealed parcels to Iftikhar Ahmad 756/C (PW-7) for their onward transmission to the office of Punjab Forensic Science Agency , Lahore and that he also received a sealed parcel of a pistol which he on 27.05.2012 handed over to Ghulam Abbas 55/HC (CW-2) for its onward transmission to the office of Punjab Forensic Science Agency , Lahore and on 12.04.2012 he received a parcel said to contain a repeater gun which he on 07.05.2012 handed over to Ghulam Abbas 55/HC (CW-2) for its onward transmission to the office of Punjab Forensic Science Agency , Lahore. Muhammad Iqbal 1046/C (PW-3) escorted the dead bodies of both the deceased and got conducted their post mortem examination and received their last worn clothes from the medical officers concerned which were taken into possession vide recovery memos (Exh.PD) and (Exh.PE). Ijaz Latif, draftsman (PW-4) prepared the scaled site plan of the place of occurrence (Exh.PF). Ghulam Muhammad 162/C (PW-9) witnessed the recovery of
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repeater gun 12-bore (Exh.P12) from the possession of the appellant on 12.04.2012. Muhammad Nadeem (PW- 12) stated that on 28.01.2012 he witnessed the appellant and the co-accused planning the murder of the deceased. The complainant gave up witnesses Muhammad Ishfaq 647/C and 1089/C as being unnecessary vide his statement recorded on 17.11.2012. The learned trial court also examined two witnesses as Court Witnesses. Muhammad Afzal, SI (CW-1) investigated the case from 02.02.2012 till 30.05.2012 and narrated the facts of the investigation conducted by him in his statement before the learned trial court. Ghulam Abbas 35/HC (CW-2) stated that on 07.05.2012 he received a sealed parcel said to contain repeater gun 12 bore which he deposited in the office of Punjab Forensic Science Agency , Lahore and on 27.05.2012 he received a sealed parcel said to contain pistol 30-bore which he deposited in the office of Punjab Forensic Science Agency , Lahore. On 26.04.2014 the complainant closed the prosecution evidence after tendering the report of Chemic al Examiner (Exh.PQ), report of Serologist (Exh.PR) and the report of Punjab Forensic Science Agency , Lahore (Exh.PS) 6. The prosecution got examined Dr. Muhammad Suraj (PW.6), who on 02.02.2012 was posted as Medical Officer at THQ Hospital, Mailsi and on the same day conducted the postmortem examination of Muhammad Shaban son of Muhammad Arif (deceased). Dr. Muhammad Suraj (PW-6), on examining Muhammad Shaban son of Muhammad Arif (deceased) observed as under: "INJURIES. 1. there is a lacerated wound 4x4 cm muscle deep seated on front of right chest. 6 cm below prominence of right clavical bone 2 cm above right nipple obliquely . Margins of wound roughened. Edges inverted. Blood clots present. There is a chole (sic) ring area 3/4 cm on inferior area of wound. Corresponding tears present on all clothes except shalwar . This wound is a entrance wound. There are multiple abrinated wounds in liner form on front of upper part of right chest and right shoulder . Abrasions are resulted from exit of pellets. All are attached with each other . There is single wound 1/2 x 1/2 cm circular in shape on distal said abrasion. This is 4 cm proximal to entrance wound. On dissection a pellet and plastic part of cartridge found embed in deep fishier . Both objects recovered put in a plastic bottle sealed, stamped and then handed over to police. 2. There is lacerated wound 4 cm x 4 cm oval shape going deep on outer side of right chest on mid auxiliary line 11 cm below axilla. Margins of wound are roughened, edges inverted and blood clots present. Corresponding tears were present on all clothes except shalwar . This wound is an entrance wound. On dissection a plastic cartridge and pellet was found from chest cavity , were recovered, put in a plastic bottle sealed stamped and handed over to police. 3. A lacerated wound 3/4 cm x 3/4 cm going deep on front of neck, to some extent on left side, just below prominence of mandible 5 cm from left side of angle of mouth. Margins are roughened, edges inverted. Blood clots present. This was an entrance wound. On dissection maxillary bone fractured, base of skull damage, left cerebral hemisphere damaged and bullet found incarcerated on junction of oxipitoperital bone. At this point skull bone was fractured and divided into multiple pieces. Bullet recovered put in plastic bottle and stamped then handed over to police. Opinion. To me cause of death in case is shock resulted from hemorrhage external and internal and damaged to vital organs. (Right lung and brain). All injuries are antimortem caused by fire arm weapon. Injuries No.2 and 3 are fatal and are sufficient to cause death in ordinary course of nature. The probable time that elapse between injuries and death immediately and that of death and post mortem 8 to 12 hours." 7. The prosecution got examined Lady Dr. Musarrat (PW.5), who on 02.02.2012 was posted as Woman Medical Officer at THQ Hospital, Mailsi and on the same day conducted the postmortem examination of Naseem Bibi wife of Muhammad Shaban (deceased). Lady Dr. Musarrat (PW.5), on examining Naseem Bibi wife of Muhammad Shaban (deceased) observed as under: "Injuries. 1 A lacerated wound 1 x 1 cm circular in shape going deep on front of upper part of right chest 2 inches below the tip of right shoulder and 1 inch from sterna notch. Margin roughened. Blood clots present. Mixed flued (sic) oozing from the wound. This is entrance wound. Corresponding tear also present at shirt.1/2 1/2 1/2
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2 There are two small wounds 3/4 x 3/4 cm of each present on back of right chest (upper part of prominence of right scapula.) There is black area around these wound margins. Margins are roughened and everted. There are two exit wound. Two pellets found in wedded in deep facia and part of cartridge found. Upper part of scapula found fractured. Corresponding tears also present on shirt. 3. Lacerated wound 3 x 1 cm on back of left chest 3 cm below the tip of left shoulder . Six inches away from mid line. Corresponding tears on shirt were present. This wound was just like groove. Margins are slightly burnt. All injuries are antimortem inflicted by fire arm. Opinion. To me cause of death in case is shock due to hemorrhage and damage to right lung and aorta and injury No.1. Most fatal, inflicted by fire arm weapon and sufficient to cause death in ordinary course of nature. The probable time that elapse between injuries and death within few minutes and that of death and post mortem 9 to 10 hours approximately." 8. After the closure of prosecution evidence, the learned trial court examined appellant namely Ijaz son of Allah Rakha under section 342 Cr.P.C. and in answer to question why this case against you and why the PWs have deposed against you, he replied that he was innocent and had been falsely involved in the case due to previous enmity . He further stated that he had not committed the occurrence. The appellant namely Ijaz son of Allah Rakha opted not to get himself examined under section 340(2) Cr.P.C however produced copies of remand paper (Exh.DD), certificate of job (Exh.DE), copy of order dated 16.03.2012 (Mark-A), copy of FIR No. 73 of 2012 (Mark- B), copy of FIR No. 74 of 2012 (Mark-C) and certificate dated 27.02.2012 (Mark-D) in his defence. 9. On the conclusion of the trial, the learned Additional Sessions Judge, Mailsi convicted and sentenced the appellant as referred to above. 10. The contention of the learned counsel for the appellant 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. He further contended that the statements of Muhammad Nawaz (PW-8) and Abdul Hameed (PW-10) were not worthy of reliance. He also argued that the recovery was full of procedural defects of no legal worth and value and result of fake procee dings. He 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 counsels further argued that the deceased died as a result of injuries suffered at the hands of the appellant . They further contended that the medical evidence also corroborated the statements of Muhammad Nawaz (PW-8) and Abdul Hameed (PW-10). They further argued that the recovery from the appellant also corroborated the ocular 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 appellant 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 Muhammad Nawaz (PW-8) and Abdul Hameed (PW-10). These witnesses namely Muhammad Nawaz (PW-8) and Abdul Hameed (PW-10) were related to each other . Their relationship with the decease d is also on record. Muhammad Nawaz (PW-8) admitted during cross- examination that the deceased Muhammad Shaban was his paternal nephew whereas Abdul Hameed (PW-10) was also his nephew whereas Muhammad Javed ( not produced) was his son. Abdul Hameed (PW-10) also admitted the said relationships between the witnesses and the deceased Muhamm ad Shaban. Muhammad Nawaz (PW-8) and Abdul Hameed (PW-10) further admitted in their cross-examination that the witnesses namely Muhammad Nawaz (PW-8), Abdul Hameed (PW-10) and Muhammad Javed (not produced) were not the residents of the place of occurrence. Muhammad Nawaz (PW -8) during cross-examination admitted as under:-1/2
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" I, Javed and Abdul Hameed are residents of Mohalla Hafiz Abad at a distance of three kilometers from the place of occurrence." It is an admitted fact that none of the prosecution witnesses namely Muhammad Nawaz (PW-8), Abdul Hameed (PW-10) and Muhammad Javed (not produced) had their residences or their houses at the place of occurrence. They were all "chance witnesses". We have also perused the scaled site plan (Exh.PF) as prepared by Ijaz Latif, draftsman (PW-4) and the rough site plan (Exh.CW -1/A) as prepared by Muhammad Afzal, SI (CW-1) and find that neither any house nor any shop belonging to the three eye witnesses is marked in the same. More importantly no place has been pointed out in the said site plans where, prior to the occurrence, the witnesses namely Muhammad Nawaz (PW-8), Abdul Hameed (PW-10) and Muhammad Javed (not produced) were present. As per the claim of the prosecution witnesses, all the prosecu tion witnesses namely Muhammad Nawaz (PW-8), Abdul Hameed (PW- 10) and Muhammad Javed (not produced ), were present in the house of one Ahmad Yar (not produced). A perusal of the above mentioned site plans (Exh.PF and Exh.CW -1/A) reveals that the house of one Ahmad Yar (not produced), wherein all the three prosecution witnesses namely Muhammad Nawa z (PW 8) , Abdul Hameed (PW- 10) and Muhammad Javed (not produced) were allegedly present prior to the occurrence, is also not shown in the said site plans. Furthermore, to accentuate these omissions in the case of the prosecution, during the whole investigation the said Ahmad Yar did not appear before the Investigating Officer nor was produced by the witnesses to support the claim of the prosecution witnesses that the witnesses namely Muhammad Nawaz (PW-8), Abdul Hameed (PW-10) and Muhammad Javed (not produced) were indeed present in the house of one Ahmad Yar (not produced). The said Ahmad Yar also did not appear before the learned trial court in support of the assertion of the prosecution witnesses that they were present in his house prior to the occurrence. All these omissions are conspicuous by their absence. In absence of physical proof of the reason for the presence of the witnesses at the crime scene the same cannot be relied upon. In this respect reliance is placed on the case of "Muhammad Rafiq v. State " (2014 SCMR 1698 ) wherein the august Supreme Court of Pakistan rejected the claim of witnesses who lived one kilometer away from the occurrence, but on the day of occurrence stated to be present near the spot as they working as labourers, inasmuch as they failed to give any detail of the projects they were working on. Reliance is also placed on the case of "Usman alias Kaloo v. State " (2017 SCMR 622) wherein the august Supreme Court of Pakistan held that the ocular account of the incident had been furnished by Zahoor Ahmad complainant (PW3), Ghulam Farid (PW6) and Manzoor Ahme d (PW7) who were all residents of some other houses and they were not inmates of the house wherein the occurrence had taken place and he said eye witnesses were, thus, chance witnesses and not worthy of reliance .Reliance is also placed on the case of "Nasrullah alias Nasro v. The State " (2017 SCMR 724 ) wherein the august Supreme Court of Pakistan observed as under:- "In the case in hand the eye-witnesses produced by the prosecution lived eighty kilometers away from the scene of the crime, their stated reason for presence in the house of occurrence at the time of incident in issue had never been established through any independent evidence." 14. We have also noted with grave concern that the witnesses namely Muhammad Nawaz (PW-8) and Abdul Hameed (PW-10) made blatant and dishonest improvements to their earlier statements. The improvements were made with respect to role of the appella nt. A perusal of the oral statement of Muhammad Nawaz reduced into writing (Exh.PC) reveals that the role attributed to the appellant was that he forbade the witnesses to come near the deceased while being armed with a sota. Similarly , when the statement under section 161 Cr.PC of Abdul Hameed (PW-10) was recorded by the Investigating Officer namely Muhammad Afzal, SI (CW-1) the role attributed to the appellant was that he forbade the witnesses to come near the deceased while being armed with a sota. However while appearing before the learned trial court, Muhammad Nawaz (PW-8), altered the role of the appellant in its entirety . While appearing before the learned trial court Muhammad Nawaz (PW-8) stated that the appellant Ijaz was armed with a repeater gun and fired at Muhammad Shaban (deceased) twice hitting him on the right side of chest and on the right ribs. Muhamma d Nawaz (PW-8) was confronted with his oral statement (Exh.PC) and stated as under:- "On 02.02.2012 at about 3:10 A.M. I got registered FIR No. 55. It is incorrect to suggest that in my above said FIR, I had got recorded that accused Muhamm ad Irshad armed with pistol 30-bore, Muhammad Shazad armed with
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carbeen, Muhammad Ijaz armed with Sota and Muhammad Safdar armed with Sota were present in the room of Muhammad Shaban. Is is incorrect to suggest that I have recorded in my above said FIR (Ex.PC) that Muhammad Ijaz and Safdar armed with Sota threatened us not to come forward. It is incorrect to suggest that in Ex.PC I have got recorded that Muhammad Irshad fired with his pistol at Shaban and Muhammad Shahzad fired with his carbeen at Muhammad Shaban. It is incorrect to suggest that I stated in Ex.PC that Muhammad Irshad again fired with his pistol on Muhammad Shaban. It is incorrect to suggest that in Ex.PC. I stated that Muhammad Shahzad fired with his carbeen at Naseem Mai. Confronted with Ex.PC wherein all the attribution according to suggestions are recorded ." Similarly , while appearing before the learn ed trial court, Abdul Hameed (PW 10), altered the role of the appellant in its totality . While appearing before the learned trial court Abdul Hameed (PW-10) stated that the appellant Ijaz was armed with a repeater gun and fired at Muhammad Shaban (deceased) twice hitting him on the right side of chest and on the right ribs. Abdul Hameed (PW-10) was confronted with his statement recorded under section 161 Cr.PC (Exh.DB) and stated as under:- "It is incorrect to suggest that Ijaz and Safdar who were armed with Sota restrained us to step forward. Confronted with Ex.DB wherein it is so recorded . It is incorrect to suggest that I recorded in my statement Ex.DB that Muhammad Irshad fired with pistol and Shahzad fired with carbeen on the deceased. Confronted with Ex.DB wherein it is so recorded. It is incorrect to suggest that I have recorded in my statement that on hue and cry many persons came at the spot. Confronted with Ex.DB wherein it is so recorded. I have not recorded in my statement Ex.DB that accused persons have any enmity with Naseem alias Shamman Mai." Similarly , a perusal of the inquest report (Exh.PH/3) relating to Muhammad Shaba n (deceased) and inquest report (Exh.PG/3) relating to Mst. Naseem Bibi (deceased),as prepared by the Investiga ting Officer namely Muhammad Afzal, SI (CW-1), also reveal that the role attributed to the appellant was that he forbade the witnesses to come near the deceased while being armed with a sota. A perusal of the above mentioned site plans (Exh.PF and Exh.CW -1/A) also reveal that the role attributed to the appellant was that he forba de the witnesses to come near the deceased while being armed with a sota. Muhammad Afzal, SI (CW-1) during cross-examination admitted as under:- " It is correct that as per statement of complainant Ex.PC Ijaz and Safdar accused were armed with sota. It is correct that as per my rough site plan Ex.CW-1/A Ijaz and Safdar accused were shown as armed with Sotas. Red notes on the back of scaled site plan are in my hand and bear my signatures and date. According to point No.4 of scaled site plan Ex.PF is the place from where Shahzad accused fired with his carbeen to Naseem alias Shmman. Point No.3 is the place from where Shahzad fired with his carbeen at Shaban deceased. Point No.6 is the place where Ijaz and Safdar accused armed with Sotas stopped the complainant and PWs and passed them threats. It is correct that statement of complainant Ex.PC and my notes dated 12.02.2012 on site plan are quite same." As both the witnesses namely Muhammad Nawaz (PW-8) and Abdul Hameed (PW-10), had improved upon their previous statements, hence their credit stands impeached and they cannot be relied upon. The august Supreme Court of Pakistan in the case of "Muhammad Ashraf Vs. State" (2012 SCMR 419) took a serious notice of the improvements introduced by witnesses and rejected their evidence. We,…
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