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Petitioner: The State, Riaz, Muhammad Yousaf VS Respondent: Riaz , The State, etc
Court Name: Lahore High Court Judge(s): Aalia Neelum, Anwaarul Haq Pannun Title: The State, Riaz, Muhammad Yousaf vs Riaz , The State, etc Case No.:Murder Reference No.74 of 2019, Crl. Appeal No.43590-J of 2019, P.S.L.A
JUDGMENT
Reported As: 2022 LHC 8343 Result: Petition Dismissed Judgment JUDGMENT AALIA NEELUM, J. The appellant-Riaz, son of Ahmad Yar, caste Ramana, resident of Chak No.223/JB Janubi, Tehsil Bhowana District Chiniot, has assailed his conviction and sentence recorded by the learned Addl. Sessions Judge, District Chiniot vide judgment dated 26.03.2019 in a private complaint filed under sections 302, 109, 114, 148, 149 PPC P.S. Langrana, District Chiniot titled "Muhammad Yousaf vs. Riaz, etc.", whereby the learned trial court convicted the appellant-Riaz under Section 302 (b) PPC as Tazir and sentenced to Death for committing Qatl-e-Amd of Noor Muhammad (the deceased), with the direction to pay compensation of Rs.2,00,000/- to the legal heirs of the deceased as envisaged under section 544-A of Cr.P.C and in case of default thereof, to undergo 06-months S.I further. 2. Feeling aggrieved by the judgment of the learned trial court, Riaz, the appellant, has assailed his conviction by filing the instant jail appeal bearing Criminal Appeal No.43590-J of 2019. The learned trial court also referred M.R. No.74 of 2019 (The State. Vs. Riaz) for confirmation of the death sentence awarded to the appellant-Riaz. Whereas the complainant also filed Crl. P.S.L.A No.26329 of 2019 against the acquittal of respondents No.2 to 6, namely Irshad alias Shahadta, Noor Akbar alias Mammu, Khan, Iqbal, and Munir. All the matters arising out of the same judgment of the learned trial court are being disposed of through a single judgment. 3. Briefly, the prosecution story as alleged in the private complaint (Ex. PD) of Muhammad Yousaf (PW-1)-the complainant is that on 04.03.2016, at about 08:45 P.M., complainant (PW-1) along with his brothers, namely, Bhai Khan (PW-2), Noor Muhammad (the deceased) and Mukhtar Hussain was present in his house. Meanwhile, Riaz-the appellant armed with a rifle, Irshad, Barkhurdar, Noor
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Akbar, Khan, and Iqbal (co-accused since acquitted), all while armed with firearm weapons, came there on their motorcycles and entered his house. Irshad (co-accused since acquitted) raised Lalkara to teach a lesson to Noor Muhammad (the deceased) for demanding back lady, after that the complainant and others came out of the room, and Noor Muhammad (the deceased) was ahead of them. Riaz (the appellant) made a fire shot with his rifle, which hit Noor Muhammad (the deceased) at the front of his abdomen near the belly button and exited from the back. The electric bulb was lightening, and they identified all the accused persons. The accused persons fired straight at them, but they survived. The complainant and others witnessed the occurrence and attended Noor Muhammad (the deceased) and took him to the hospital, but he succumbed to the injuries. 4. The motive behind the occurrence was that Mst. Shehnaz Bibi, daughter of Zafar, who was a close relative of the complainant, was abducted by Riaz (the appellant) and Noor Muhammad (the deceased) demanded her back from Riaz (the appellant). Due to said grudge, all the accused persons in the prosecution of their common object murdered Noor Muhammad, deceased. 5. The complainant Muhammad Yousaf (PW-1), got recorded his statement (Ex. PA) to Israr Hussain S.I. (CW-7)-the investigating officer, who, after endorsing police proceedings on it, sent the same to the police station through Ahmad Nawaz 32/C (not cited as a witness), after that formal FIR (Ex.PA/1) was chalked out by Muhammad Ayub 289/H.C (CW-8)- Moharrar. After the registration of the case, the investigation of this case was conducted by Ghulam Shabbir Inspector (CW-9), who found the accused/appellant guilty, prepared a report under section 173 of Cr.P.C. Being dissatisfied with the result of the investigation, as the investigating officer being in league with the accused did not investigate the matter properly, the complainant was constrained to file a private complaint (Ex. PD). After recording the cursory evidence of the complainant and having perused the record, all the accused persons were found connected with the commission of the offence, so they were summoned to face the charge. After that, the learned trial court formally charged the appellant and his co-accused on 07.02.2018, to which they pleaded not guilty and claimed trial. In support of its version, the complainant produced as many as four (04) witnesses, whereas the prosecution produced the witnesses as C.W-1 to C.W-12. 6. Ocular account, in this case, has come out from the statements of Muhammad Yousaf (PW-1)- the complainant, and Bhai Khan (PW-2)-the eye witness, whereas Dr. Zafar Abbas (CW-6), who conducted the postmortem examination of Noor Muhammad (the deceased) found the following injuries on his person: - INJURIES 1-A) A lacerated (entry) wound of 0.75cm x 0.75cm with an inverted margin on the anterior abdominal wall on the right mid-clavicular line 3.5cm below the umbilicus. A blackening of margins and suit was present around the wound. 1-B) A lacerated wound of 3cm x 2.5cm with everted margin (exit wound) was present on the back of the abdomen in the right lumber region 6cm lateral to the midline on the right side. After conducting the postmortem examination, the doctor opined that the cause of death was hemorrhage and shock due to injury to a vital organ, i.e., kidney and blood vessels of the small intestine, which are sufficient to cause death in the ordinary course of nature due to injury No.1 and 2. Both injuries were antemortem and were caused by firearm weapons. The probable time between injury and death was 10 to 20 minutes, whereas between death and postmortem was about 06 to 08 hours. The statements of the remaining prosecution witnesses are formal in nature. 7. The learned Assistant District Public Prosecutor gave up PWs Mumtaz, Muhammad Nawaz, and Allah Ditta as unnecessary and closed the prosecution evidence after tendering the reports of Punjab Forensic Science Agency (Ex. PF & Ex. PG).
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8. The appellant was also examined under Section 342 Cr.P.C., wherein he did not opt to appear as his own witness under section 340(2) Cr.P.C.; however, he produced a document (Ex. DD) in his defence evidence. In response to a particular question that why this case was against him and why the PWs deposed against him, the appellant made the following deposition: - "In fact on 04.03.2016 at "Isha Wela" I alongwith Zeeshan alias Shani and Mohli Khokhar were present in the house of Iqbal Ramana to attend Rasam-e-Mehndi of son of one Haqnawaz who is my relative. Hot words were exchanged between me and Iqbal Ramana and he ousted me from the house at "Isha Wela" I, Zeeshan and Mohli Khokhar were going to my home on bike when we reached near the Pul Bhunianwala Anser and two/three persons were present there and they attacked on us, Anser accused fire upon me, I jumped from the motorcycle and fell down in the watercourse and received injuries upon my knee which was fractured. Many people of the locality and surroundings Dhari rushed to the place of occurrence after hearing firing at the place of occurrence i.e. Pul Bhuniawala, accused Anser etc. thought that I got injuries and killed. He took my bike and went to the Dhari of Noor Muhammad deceased. I informed the police about the occurrence Anser was proclaimed offender of different police stations in different heinous cases. The police party of different police stations reached the spot and chased to arrest Anser absconder an encounter took place between police party and Anser and Noor Muhammad got injuries in that encounter. The police party was taking him in injured condition to the Hospital, but, he died on the way. To save their skin concerning encounter police lodged fake F.I.R against me and my other relatives and also planted fake recovery against me to support the prosecution story. No empty was collected from the spot where encounter took place i.e. Dhari of the deceased. The police made a false motive against me of abduction of Mst. Shehnaz Bibi, compromise has been affected between the father of Shehnaz Bibi before the occurrence. Nikah of my niece Mst. Areeba Bibi was fixed on 05.03.2016, Anser accused was not agree on our compromise, due to that reason Anser attacked on me on 04.03.2016 to kill me before "Rasm-e- Nikah. I am innocent." 9. After evaluating the evidence available on record in light of arguments advanced from both sides, the learned trial court found the prosecution version proved beyond any shadow of reasonable doubt, which resulted in the appellant's conviction in the afore-stated terms. 10. We have given our anxious and most thoughtful consideration to both sides' rival submissions. We have minutely gone through the evidence on record. 11. We find from the evidence that the incident occurred at about 08.45 p.m. on 04.03.2018. Riaz allegedly shot down Noor Muhammad with his rifle; Muhammad Yousaf (PW-1)-the complainant arranged a vehicle and took Noor Muhammad for medical treatment to a hospital, but on the way to the hospital, he succumbed to the injury, and they brought back the dead body of Noor Muhammad at the place of occurrence. The incident occurred at the house of Muhammad Yousaf (PW-1)-the complainant and Noor Muhammad, situated in Chak No.223/JB. The defence brought on the record that Muhammad Yousaf (PW-1)-the complainant, deceased, and eyewitness, resided in joint-owned property; in this regard, Muhammad Yousaf (PW-1)- the complainant, deposed during cross-examination that, "We all the three brothers were residing at our Dera jointly alongwith our wives in our Agriculture land." Bhai Khan (PW-2), the eyewitness, deposed during cross-examination, "We three brothers namely, I, Noor Muhammad, and Yousaf, were residing jointly in the same house." Israr Hussain S.I. (CW-7)-the investigating officer deposed during cross-examination that, "It is correct that the house of the complainant is a joint property of complainant and his brothers. I had not mentioned the name of the other co-owner of the house in my unscaled site plan except the deceased. --- I had shown a separate house of Bhai Khan in my site plan, but I had not shown the description of the house." The defence admitted that the prosecution witnesses had the same residence, which is the place of occurrence. The oral
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complaint (Exh.PA) of Muhammad Yousaf (PW-1)-the complainant was scribed by Israr Hussain S.I. (CW-7) at 09:45 p.m. on 04.03.2016 at the place of occurrence against the accused named therein. The FIR (Exh.PA/1) was chalked out at 10:15 p.m. by Muhammad Ayub 289/HC (CW-8). The distance between the place of occurrence and the Police Station was 22 kilometers, showing that it was promptly lodged. Muhammad Yousaf (PW-1)-the complainant deposed during cross-examination, "We did not inform the police about the occurrence some other informed the police about the occurrence and police reached there. The police started proceedings at the place of occurrence including my statement." Israr Hussain S.I. (CW-7)-the investigating officer deposed during cross- examination that, "I received information about the occurrence from Moharrir of police station Langrana. The Moharrir of police station Langrana did not told me that who committed the murder." Israr Hussain S.I. (CW-7)-the investigating officer was posted at HIU Circle Bhowana and stated during cross-examination that the office of Homicide Circle, Bhowana, was situated in the police station, Bhowana. Hafiz Muhammad Abdullah S.I. (CW-10)-investigating officer of the District Investigation Board (DIB), deposed during cross-examination that "Normally local police reached at the place of occurrence prior to the police officers of HIU." Muhammad Yousaf (PW-1), the complainant deposed during examination-in-chief that, "I was ready to proceed to the police station but police by their own came at the place of occurrence I made my statement Exh.PA before the police which was reduced into writing and read over to me, I thumb marked the same was token of its correctness and on the basis of said complaint FIR was got registered." He (PW- 2) deposed during cross-examination, "We did not inform the police about the occurrence some other informed the police about the occurrence and police reached there. The police started proceedings at the place of occurrence including my statement." Upon receiving information about the incident, Israr Hussain S.I. (CW-7)-the investigating officer, from the office of Homicide Circle, went to the place of occurrence at 09:15 p.m. At the same time, he (CW-7) recorded the statement of the complainant (Exh. PA); the statement after it was recorded was read over to the complainant word by word, and he was made to understand it. On hearing the statement, he (the complainant) admitted the same to be correct and put his thumb impression below it. The police proceedings were recorded; after the above-said proceedings at the bottom of the fard bayan (Exh. PA); he (CW-7) wrote time at 09:45 p.m. Sometime must have been consumed by the police in writing the statement of the complainant. Israr Hussain S.I. (CW-7) deposed during cross- examination conducted by the complainant side that "I reached at the place of occurrence within half hour of the happening of occurrence. First of all I recorded the statement of the complainant namely Muhammad Yousaf after reached at the spot." As per the prosecution case, it had been specifically mentioned that after the occurrence, the complainant (PW-1) and eyewitnesses immediately took their brother Noor Muhammad (then injured) to the hospital, but on the way, Noor Muhammad (then injured) succumbed to the injury. Muhammad Yousaf (PW-1)-the complainant deposed during cross-examination that the assailants remained at the place of occurrence for five to ten minutes. He (PW-1) had not stated that the assailants remained at the spot after the occurrence. Muhammad Yousaf (PW-1)-the complainant deposed during cross- examination that, "Vehicle came at the house to take the injured to Hospital within ten minutes. We borrowed Dalla from our relative Asif s/o Zahoor who resides in the same village. We telephonically requested him. I did not make telephonically call. Village is at a distance of five/six squares from the place of occurrence.----The injured Noor Muhammad expired when we had covered just distance of two/three Acres from the place of occurrence." Bhai Khan (PW- 2), an eyewitness deposed during cross-examination that, "Place of occurrence is at a distance of 1 1/2 km from village Abadi. Dalla was arranged from the village Abadi and my brother Noor Muhammad succumbed to the injuries in the same Dalla when he was on the way to the Hospital." Besides, the witnesses cannot be called upon to explain every minute's delay in
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reporting the incident, and a rational view has to be taken in ascertaining whether the First Information Report was lodged after an undue delay to afford enough scope for manipulating evidence. The eye-witnesses' account of the prosecution, which has been adduced by the examination of Muhammad Yousaf (PW-1)-the complainant, and Bhai Khan (PW-2), an eyewitness, is quite consistent. It is primarily stated that Riaz (appellant) had made a fire shot that hit on the anterior abdominal wall on the right mid-clavicular line 3.5 cm below the umbilicus. Both the eyewitnesses had seen the occurrence. In the circumstances, the delay in lodging the FIR is not such, which would show that there has been scope for manipulating the prosecution evidence. In any case, the same has also been duly explained. Therefore, the contention of the learned counsel for the appellant that there has been a delay in lodging the FIR shows that the falsity of the prosecution case is devoid of any merit. Thus, there is no delay in reporting the incident and lodging the FIR, which is prompt in the facts and circumstances of the case. Hence, the question of its being doubtful on this ground cannot be sustained. 12. The eyewitness account of Muhammad Yousaf (PW-1)-the complainant, and Bhai Khan (PW-2), an eyewitness, is corroborated by the medical examination. Dr. Zafar Abbas (CW-6) conducted the post-mortem examination of the dead body of Noor Muhammad deceased on 05.03.2016 at 03:30 a.m. and opined that the time elapsed between injuries and death was about 10 to 20 minutes, whereas between death and post-mortem was about 6 to 8 hours. The testimony of Dr. Zafar Abbas (CW-6) and the post-mortem report (Exh.CW6/A) fully corroborate the ocular account that the injury was received by the deceased with a firearm and the time of occurrence. Muhammad Ashraf 565/Constable (CW-3) deposed during cross-examination, "THQ Hospital, Bhowana is at a distance of 2km from police station Bhowana, however, both the places falls in the same City. Chak No.223 is connected with Bhowana through mattled road. I alongwith I.O. reached at the place of occurrence at about 11:00 p.m. I left the place of occurrence with the dead body and police papers at about 12:00 a.m mid night. It consumed normally half an hour to travel from Chak No.223 to THQ Hospital, Bhowana and not 20 minutes as suggested. At about 1:30 a.m I handed over the dead body and police papers to the M.O. Voluntarily stated at that time road was under construction." The doctor (CW-6), who conducted the postmortem examination, led to the conclusion that the deceased died a homicidal death. The tenor of cross-examination of the witnesses also does not dispute that the documents were belatedly handed over to Dr. Zafar Abbas (CW-6). The deceased died a homicidal death. Thus, there is no delay in conducting a post- mortem examination of the dead body of Noor Muhammad. 13. As far as the ocular account is concerned, both eye witnesses, i.e., Muhammad Yousaf (PW-1)- the complainant, and Bhai Khan (PW-2), have stood firm in their cross-examination about the identity of the accused, time, place, and manner of assault. There is hardly any discrepancy in the statements and the narration of the facts by eyewitnesses P.W-1 and P.W-2 about the incident. During cross-examination, Muhammad Yousaf (PW-1)- the complainant, deposed as under:- "We were sitting in the room of Noor deceased. Both the rooms have their opening doors towards East. We were sitting in the rooms situated on Southern side. It is correct that the opening doors of the room are not in the middle of the wall and are in the corner of the rooms. We were sitting on four/five cots. In front of the door my brother Noor Muhammad deceased was sitting. The accused entered in Haveli while making firing and raising lalkaras. We had no time to close the door of our room. PW volunteered our brother Noor Muhammad went outside the room and we had to follow him.---- I cannot tell the measurement of my rooms in feet however, it consists of two Garders. The accused/assailants came on the door of our room. The assailants made firing upon us but we luckily saved." The above eyewitness's deposition has been clear and consistent while describing the sequence of the incident on the day of the occurrence. Israr Hussain S.I. (CW-7) deposed during a cross-
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examination conducted by the complainant that, "It was version of the complainant and PWs that they were present in the said room when accused persons came there and it was also the version of the complainant party that when they came out of the said room accused party launched assault upon them. This version of the complainant party was found correct by me during the course of investigation." The incident tallies the injury received by the deceased in the post-mortem report. The site plan (Exh. CW-10/A) also fully corroborates the ocular account. Since the parties were known to each other, there is no question of any misidentification by the eyewitnesses. Not only does the post-mortem report support the statements of these two witnesses, Muhammad Yousaf (PW-1)-the complainant, and Bhai Khan (PW-2), but F.I.R. also has been lodged promptly, erasing any doubt of manipulation in it. They are natural witnesses, and we find no reason to disbelieve the incident as they narrated. The trial court rightly believed the statement of the eye-witnesses, which was further corroborated by the injury report as was proved by the doctor performing the post-mortem. Rather defence version put to the complainant (PW-1) through suggestions, which was replied to in negative, was that "It is not in my knowledge that on the night of occurrence there was Mehndi function of one Sarfraz and the accused Iqbal and Riaz were present there.-----It is correct that if the accused Riaz has to visit his own house from the house of Sarfraz he has to cross said Bhuniyan Wali Bridge.-----It is incorrect that accused Riaz and Iqbal had altercation between them in the function. It is incorrect that Anser sit ambushed at Bridge Bhunyian Wali waiting arrival of Riaz accused alongwith his companions. It is incorrect to suggest that when Riaz accused reached there Anser and his companions made firing upon them. It is incorrect to suggest that companions of Riaz fled away from the place and Riaz fell down in the watercourse. It is incorrect to suggest that Anser etc. left the said place believing that Riaz accused had died. It is incorrect to suggest that knee of the Riaz accused was fractured at that time and he was unable to move. It is incorrect to suggest that this matter was reported to the police by the Riaz etc. telephonically. PW volunteered stated that in the days of occurrence Riaz accused was proclaimed offender. It is incorrect that my volunteer portion is false.-------- It is incorrect that police arrested me and Anser at the spot and took us to Police Station alongwith the dead body. It is also incorrect to suggest that police threatened us to become complainant of this case against the Riaz accused. It is also incorrect to suggest that police party reached at the place of occurrence upon the information of Riaz accused in order to arrest P.O Anser and encounter took place between Anser and police party. It is further incorrect to suggest that during said encounter Noor Akbar was murdered. It is incorrect to suggest that Anser was apprehended by the police and kept in their custody for three months and in order to save their skin from the above said encounter shown his arrest from District, Hafizabad." Similarly, suggestions were put to Bhai Khan (PW-2), and he (PW-2) denied the same. It is pertinent to mention that the accused-Riaz failed to prove his specific defence. The well-settled proposition of law is that when a specific plea is raised by the accused, he has to prove the same. The accused had not produced even a single witness to prove that he had made the call to the police and, on information furnished by him, police arrived. However, the accused had not suggested to the prosecution witnesses that first of all, the police came to Bridge Bhunyian Wali and meet with him. On his complaint, police went to the Dera/house of the deceased, and a police encounter occurred. Even the accused suggested to the complainant that his knee was fractured but had not produced any evidence that he got medical treatment through police nor produced any documentary evidence in this regard. As already discussed above, it is not proved that the accused remained under treatment for his knee fracture and a police encounter occurred at the complainant's residence. So, the arguments that the accused informed the police about the incident and received an injury due to a fire shot made by one Ansar are of no avail. Riaz (appellant) was proclaimed offender. Israr Hussain S.I. (CW-7) deposed during a cross-examination conducted by
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the complainant that, "It is correct that I made my best efforts to arrest the accused Riaz but, he remained absconder. It is correct that during investigation it came into my knowledge that the accused Riaz was involved in number of cases of concerning said dacoity, robbery and murder and in maximum such cases he was an absconder." Contrary to the suggestions put to Muhammad Yousaf (PW-1)-the complainant, that the accused Riaz, on a faithful night, went to attend the Mehndi function in the house of Sarfaraz. Ghulam Shabbir, Inspector, DIB (CW-9), deposed that Riaz went to the house of "Mumtaz" during cross-examination. He (CW-9) deposed during cross-examination by the complainant: "During investigation it was found that accused Riaz was present in his Village on the night of occurrence. It was oral information furnished to me that on the evening of occurrence, accused Riaz was drunk and he visited the house of one Mumtaz. House of Mumtaz is at a…
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