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Petitioner: MEHBOOB ALIM VS Respondent: The STATE and another
Court Name: Lahore High Court Judge(s): Aalia Neelum Title: MEHBOOB ALIM vs The STATE and another Case No.: Criminal Appeal No, 1353 of 2010 and Murder Reference No, 334 of 2010 Date of Judgment:2015-11-27 Reported As: 2017 P Cr. L J 1164 Result: Appeal allowed
JUDGMENT
JUDGMENT AALIA NEELUM, J.---This appeal has been referred to me under section 378 read with section 429, Cr.P.C. For decision by the learned Chief Justice in view of the difference of opinion between the learned members which had earlier heard it. One of the learned members composing that Bench was of the view that the appeal of the appellant should be accepted and he be acquitted while the other learned Judge had concluded that the conviction should be maintained but the sentence should be reduced to the imprisonment for life. 2. The appellant was convicted by the learned Additional Sessions Judge, Okara, by order and judgment, dated 19.05.2010 under section 302(b), P.P.C. For the murder of Shaukat Ali, brother of complainant and sentenced to death as Ta'zir and a fine of Rs,1,00,000/- in default whereof to suffer further six months' S.I. And fine will be pal to the legal heirs of deceased under section 544-A, Cr.P.C. Further convicted the appellant under section 302(b), P.P.C. For the murder of Muhammad Ramzan, brother of complainant and sentenced to death as Ta'zir and a fine of Rs,1,00,000/-in default whereof to suffer further six months' S.I., and fine will be paid to the legal heirs of deceased under section 544-A, Cr.P.C. The appellant was also convicted under section 324/34, P.P.C. And sentenced to undergo Rigorous Imprisonment for five years for attempt to commit Qatl-i-amd of Muhammad Hand-injured with direction to pay Rs,50,000/-as fine and in default in payment of fine, to further undergo S.I. For six months. The appellant was convicted under section 324/34, P.P.C. And sentenced to undergo Rigorous Imprisonment for five years for attempt to commit Qatl-i-amd of Jahangir-injured with direction to pay Rs,50,000/-as fine and in default in payment of fine, to further undergo S.I. For six months. Conviction was also recorded against the appellant under section 452, P.P.C. And sentenced to undergo R.I. For five years with fine of Rs,50,000/- and in
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default of payment of fine, further undergo S.I. For six months. The benefit of section 382-B, Cr.P.C. Was also extended in favour of the appellant. 3. Having heard learned counsel for the appellant and the complainant as well as Law Officer. I have thoroughly scrutinized the evidence on record. As per prosecution version, contained in the crime report (Ex.PB/2); the occurrence had taken place on the night of 23.07.2006 at 02:00 a.m. When accused Mehboob Alim (the appellant) Noor Ahmad (since acquitted), Nazir Ahmad (P.0) and Muzammal (P.0) along with four unknown persons armed with fire arm weapons entered into the house of the complainant-Nasir Iqbal (PW-2) by scaling over the wall. Accused-Mehboob Alim (the appellant) had fired at Shoukat Ali which hit at his (Shoukat Ali) chest, second fire made by the accused-Mehboob Alim (the appellant) hit on the right arm of Shoukat Ali and third fire made by the accused-Mehboob Alim (the appellant) also hit on the right arm of Shoukat Ali. During the incident, Noor Ahmad (since acquitted) caused fire-arm injury to Muhammad Hanif (PW-4) at his right calf and thumb whereas accused-Nazir Ahmad (P.0) fired with his fire arm weapon at Jahangir (PW-3) which hit at left thigh of Jahangir. Thereafter the injured-Jahangir (PW-3) and Muhammad Hanif (PW-4) were shifted to Civil Hospital, Okara for treatment. The inter se distance between the place of occurrence and the police station was ten (10) Kilometers and according to the police karwai endorsed at the end of the FIR, the Fard Beyan (Ex.PB) was recorded at the Toll Tax near Darbar Muhammad Ghose at 2:45 a.m. On the complaint of Nasir Iqbal (PW-2). It is noted that the injured-Jahangir (PW-3) and Muhammad Hanif (PW-4) were brought in the District Headquarter Hospital, Okara at 3:40 a.m. On 23.07.2006. At the time of their (injured Jahangir and Muhammad Hanif) arrival in the hospital for medical examination, it was mentioned in the Medico- legal Certificates (Ex.PW and Ex.PX) that the injured were brought by Muhammad Rafique, Constable through Rapt No,31 dated 23.07.2006. The injured were medically examined by Doctor Ishtiaq Ali (PW-10) who deposed during examination-in-chief that "on 23.07.2006 at 3:40 a.m. I conducted Medico-legal Examination of Muhammad Hanif son of Jahangir---The patient was brought by Muhammad Rafique Constable 1096 Police Station, Satghara---." He (PW-10) also deposed during examination-inchief that "on the same day, I conducted Medico-legal examination of Jahangir son of Abdul Sattar---. Patient was brought by Muhammad Rafique 1096/C, Police Station Satghara." This fact got support from the Medico-legal Certificates (Ex.PW and Ex.PX). I have also noted that poet-mortem examination was conducted by Dr. Muhammad Arshad Iqbal (PW-6) at 03:00 p.m. The probable time between death and postmortem was within 12 hours. There is no plausible explanation as to why postmortem of the dead body of the deceased-Shoukat Ali was conducted with delay, as Dr. Muhammad Arshad Iqbal (PW-6) deposed during cross-examination that, "there is no delay on my part in conducting the postmortem of deceased namely Shoukat and Ramzan as soon as the dead bodies along with police papers produced before me, I conducted postmortem examination". These aspects of the case are sufficient to cast doubt about the authenticity of the FIR (Ex.PB/2) and that the FIR was .Recorded later. On after due deliberation and consultation and was then ante time to give it the colour of a promptly lodged FIR. In my opinion, on account of shifting the injured to the hospital by the police as noticed above, the FIR has lost its value and authenticity and it appears that same had not been recorded till injured were medically examined. The prosecution failed to offer a satisfactory explanation for the shifting of the injured to the hospital after incorporating rapt No,31 dated 23.07.2006 and preparing injury statements of Jahangir (PW-3) and Muhammad Hanif (PW-4) prepared by Muhammad Ashraf Baig, S.I./Inv. As Ex.PGG and Ex.PHH. The prosecution has led no evidence at all in this behalf. Furthermore, even the statements of Muhammad Ashraf Baig, S.I./Inv. And Muhammad Rafique Constable had not been recorded under section 161, Cr.P.C. Muhammad Akram, S.I. (PW-11), the Investigating Officer has stated in his court statement that:
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"On the same day, Muhammad Rafique 1094/C produced before me -injury statement of Muhammad Jahangir injured which is Ex.PFF and injury statement of Hanif which is Ex.PGG. The injury statements are written by Muhammad Ashraf Baig, S.I., his hand writing, his signatures are known to me as he worked with me." This creates serious doubt about the genuineness of the prosecution story including presence of the complainant at the scene of occurrence, as from the deposition of Dr. Muhammad Arshad Iqbal (PW-6), Medico-legal Certificates (Ex.PW and Ex.PX) and deposition of Muhammad Akram, S.I. (PW-11), it reflects that police was aware about the occurrence and police officer of the same police station brought the injured to the hospital. There was no reason why the police could not have registered the FIR, since the incident was known to them. These facts indicate that the possibility of the complaint being motivated or manipulated being untrue cannot be completely ruled out. The documentary evidence as well as depositions of Dr. Muhammad Arshad Iqbal and Muhammad Akram, S.I. (PW-11) indicate that the FIR was lodged after due deliberation and consultation. 4. Now I come to the crucial question as to the inconsistent evidence of ocular account advanced by Nasir Iqbal (PW-2), the complainant, Jahangir-injured witness (PW-3), Muhammad Hanif- injured witness (PW-4) and Jahangir (PW-5) gives a further fatal blow to the prosecution case. There is a vital contradiction with regard to the place of the incident and source of light. There is no direct evidence to show that where the occurrence took place. Now coming to the prosecution case, it has been noted that Nasir Iqbal (PW-2), the complainant has deposed that, "the place of occurrence is on the last side of the village and the same is a cattle shed and the same is on the outer side end of the village on southern side." He (PW-2) re-affirmed place of occurrence as he (PW-2) deposed during cross-examination that/ "Two oxen and two cows were tethered in our cattle shed on the night of occurrence at the alleged place of occurrence.When the assailants left the place of occurrence, thereafter, 1 entered in the Haveli of cattle shed."Muhammad Hanif (PW-4), the injured witness, deposed during cross- examination that, "Our cattle shed the alleged place of occurrence is located on the outer side and corner of the village" ' Muhammad Akram, S.I. (PW-11), the Investigating Officer deposed during cross-examination that, "I had not shown' the presence of cattle shed, and other parts of the fodder relating to the cattle shed in the rough site plan. The alleged place of occurrence however was cattle shed belonging to Muhammad Jahangir." ' However, the draftsman-Saeed Nasir Hussain Mirza (PW-7) deposed during cross-examination that, "The alleged place of occurrence pointed out to me was inside the residential house and that was not a cattle shed." ' From the above, it has been cleared that the place of occurrence was cattle shed. The complainant in his First Information Report (Ex. PB/2) had specifically stated that he identified the accused persons in the light of bulb which was installed in the courtyard of his house. Nasir Iqbal (PW-2), the complainant deposed during cross-examination that, "it is correct that no electric bulb or wire was taken into possession by the 1.0. From the alleged place of occurrence, as the same was not available at the alleged place of occurrence, therefore, was not taken into possession by the 1.0." Whereas the deposition of Jahangir son of Abdul Sattar (PW-3) was confronted with his earlier staiement. He (PW-3) deposed that, "I got recorded in my statement Ex.DA that the bulb was on, in the compound of the house. Confronted with Ex.DA where the words "the compound of the house" are not recorded." While denying suggestion, he (PW-3) deposed that, "it is incorrect
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that I had received the injury outside the cattle shed and there was no any kind of electric light, available in the cattle shed and in its whereabout." ' The above said important circumstances threw serious doubt on the credibility of the prosecution witnesses. This is in my opinion, a very strong circumstance to indicate that the occurrence took place in the cattle shed" and there was no source of light available at the place of occurrence to identify the accused persons. 5. Apart from the infirmities from which the evidence of Jahangir son of Abdul Sattar (PW-3) appears to suffer, Muhammad Hanif (PW-4), the evidence of injured witness also suffers from the same defects of a vital character. He (PW-4) deposed that, "I have got recorded in my statement Ex.DB that we identified them in the light of electric bulb which was lighting in the compound of our house. Confronted with Ex.DB where it is not so recorded." This was undoubtedly a belated idea of introducing the light of electric bulb because if electric light had been available in the courtyard there was no reason why the injured prosecution witnesses should not have stated in their statements before the police. The prosecution witnesses were inconsistent with the source of light and place of occurrence, therefore, clearly falsifies the prosecution case regarding the identification of the accused persons in the light of electric bulb. This clearly shows that the 'occurrence has taken place at "cattle shed" and the place of occurrence has been shifted to courtyard only with view to make it appear that the occurrence took place in the house where the electric bulb was installed and the accused could be properly identified. Another important circumstance which supports this inference is that according to the evidence of Nasir Iqbal (PW-2), the complainant, who stated that the accused Mehboob (the appellant), Noor Ahmad, Nazir Ahmad (P.0), Muzammal (P.0) along with four unknown persons while armed with fire arm weapons entered in the house of the deceased by scaling over the wall and the accused persons fled away from the place of occurrence while making aerial firing by scaling over the wall of the house. Whereas Muhammad Akram, S.I. (PW-11), the Investigating Officer deposed during cross- examination that there was no outer door of the Haveli of the complainant. No outer door has been shown in the site plan (Ex.PM). There was no need for the appellant to enter into the house by scaling over the wall of the house and also fled away by scaling over the wall. As the appellant was resident of the same village and he knew about the surroundings of the house. 6. Another important circumstance which throws serious doubt on the credibility of the prosecution witnesses is that the complainant (PW-2) had alleged in the complaint (Ex.PB) that after shifting injured to the Civil Hospital, Okara he proceeded to the police station to report the incident, where he met with Muhammad Mushtaq, S.I. (PW-14) at Toll Tax near Darbar Muhammad Ghose and he reported the occurrence. However, Nasir Iqbal (PW-2), the complainant deposed during cross- examination that, "The injured were shifted to hospital in a Dala owned by black-smith resident of our village and the name of said owner of the Dala is not remembered by me. Police had shifted the injured from the place of occurrence to hospital. Police came at the place of occurrence at about four/4:00 a.m. The police put up the injured on the cot and thereafter wagon was brought, and the wagon also came at the spot as the police came there. My cousin Khizar and police officials accompanied the injured to hospital. I accompanied the police to police station, Satghara. I accompanied the S.H.O., P.S. Satghara to P.S. Satghara. We came at police station Satghara at about 6:00 a.m. The dead bodies of both the deceased were also brought by the police at police station Satghara. It took about 2/2-1/2 hours at P.S. In writing down the proceedings of the police. Police lodged FIR at police station and the proceedings were made by the police while sitting at police station. After 2-1/2 hours, remaining the dead bodies of both the deceased at police station and myself, then the dead bodies were escorted to mortuary for postmortem examination. The dead bodies of the deceased were escorted from police station after registration of FIR at 9:00 a.m. It took about 1/1-1/2 hours to reach D.H.Q Hospital Okara. We
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reached at D.H.Q Hospital Okara at 10:00/10:30 a.m. Along with the dead bodies." This is in stark contradiction of the case of the prosecution. As per prosecution case, all documents were prepared at the spot and not in the police station. The dead bodies were sent to the District Headquarter Hospital for their postmortem examination from the place of occurrence. It is also mentioned in the inquest reports (Ex.PZ and Ex.PCC) that dead bodies were shifted to the hospital from place of occurrence. Jahangir (PW-3), the injured witness, deposed during cross-examination that, "After one hour of the departure of the assailants, the villagers came at the place of occurrence. I and my son Muhammad Hanif were shifted to police station, Satghara by one Numberdar Khizar Hayat on the van of black-smith of our village i,e, Sabar. It would be about 2:20 a.m. When we left the place of occurrence for police station. The Constables were not available at police station, therefore, we consumed a sufficient time at police station. We reached at hospital Okara at 4:40 a.m. It took about 30 minutes to reach from Police Station, Satghara to hospital, Okara. I was accompanied by a Constable to the hospital." ' Whereas Muhammad Hanif (PW-4), the injured witness, deposed during cross-examination that. "Soon after the departure of the and stopping of the firing, of the assailants, villagers came at the place of occurrence. About half an hour after the departure of assailants, police came at the place of occurrence. The police brought me, and my father Jahangir to hospital on a wagon. About half an hour after the occurrence we were sent to hospital for treatment by the police. We also went to police station when we were on our way to the hospital. Muhammad Akram, Sub- Inspector met us at the place of occurrence on the night of occurrence, and said Muhammad Akram, S.I. Sent us to hospital. Many police officials were accompanied with above said Muhammad Akram, S.I. /I.0 when he came at the place of occurrence at the night of occurrence." ' Contrary to the deposition of the complainant (PW-2), Muhammad Akram, S.I. (PW-11), the Investigating Officer, deposed that. "On the same day, Muhammad Rafique 1094/C produced before me injury statement of Muhammad Jahangir injured which is Ex.PFF and injury statement of Hanif which is Ex.PGG. The injury statements are written by Muhammad Ashraf Baig, S.I., his hand writing, his signatures are known to me as he worked with me." 7. It means that the injured were shifted to the hospital by the police and Muhammad Rafique 1094/C brought both injured to the District Headquarter Hospital, Okara on 23.07.2006 at 3:40 a.m. And in this regard, rapt No,31 was also incorporated. From the prosecution evidence, it stands proved that police reached after the occurrence at the place of occurrence but no attempt was made by the police immediately to record statements of Jahangir (PW-3) and Muhammad Hanif (PW-4), as both injured were shifted from the place of occurrence to the District Headquarter Hospital, Okara. On close scrutiny of the evidence of the complainant (PW-2), it has been found that the complainant (PW-2) admitted that entire proceedings were made in the police station and in this respect 2/2-1/2 hours were consumed. This shows that the occurrence had not taken place at the time as prosecution alleged. There are strong circumstances which lead to the irresistible conclusion that the occurrence had not been reported at 2:45 a.m. By the complainant (PW-2). The time of reporting the occurrence becomes doubtful from the fact that the injured prosecution witnesses were medically examined by Dr. Ishtiaq Ali (PW-10) on 23.07.2006 at 3:40 a.m., whereas as per prosecution case, FIR was lodged at 3:05 a.m., on 23.07.2006. If FIR number was in existence at 3:05 a.m., then there was no occasion for incorporating rapt No,31. The injured prosecution witnesses (PW-3 and PW-4) specifically deposed that it took about 30 minutes to reach hospital from police station, Satghara. The fact also reveals that the FIR was not registered at 3:05 a.m. Even the complainant (PW-2) was not present at the place of occurrence to report the incident. These facts get support from the deposition of the complainant (PW-2) who deposed that
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he went to the police station at 6:00 a.m. Along with police where entire proceedings were completed as well as the FIR was registered. According to Muhammad Akram, S.I. (PW-11), the Investigating Officer, at about 3:30 a.m. He was present at Satghara chowk along with other police officials when he received FIR and thereafter, he proceeded to the place of occurrence. If he (PW-11) had reached at the spot at 3:30 a.m., and dead bodies were sent by him from the spot to the District Headquarter Hospital, then why the postmortem was conducted at 3:00 p.m. Dr. Muhammad Arshad Iqbal (PW-6) also stated that he found rigor mortis were developed. In the postmortem report (Ex.PK), it was mentioned that probable time which lapsed between the death and postmortem was within 12 hours. During the cross-examination, it was stated by PW-6 that there was no delay on my part in conducting the postmortem examination of the dead bodies of deceased namely Shoukat and Ramzan as soon as the dead bodies along with police papers were produced before him, he (PW-6) conducted postmortem examination. If the time lapsed between death and postmortem depicted by Dr. Muhammad Arshad Iqbal (PW-6) is to be believed, then the death could be at 03:00 a.m. On 23.07.2006. The postmortem examination was conducted on 23.07.2006 at 3:00 p.m. As per postmortem report, at the time of postmortem examination, rigor mortis were found present. Generally after death, the rigor mortis develop six to twelve hours in month of July, thereafter it starts receding. It is also noted that time of death was not mentioned in the postmortem examination reports (Ex.PZ and Ex.PCC). Thus, from the evidence of the prosecution witnesses, it would appear that they are wholly untrustworthy and unreliable witnesses who had found sufficient time for implicating the appellant. This also gets support from the admission of Nasir Iqbal (PW-2), the complainant, that, "It is correct that all the above said neighbourer of the alleged place of occurrence has not been cited by me as PW of the alleged occurrence. It is correct that they have not supported our version. Of prosecution case, therefore, we have not cited them as prosecution witnesses of the alleged occurrence." There is no denying fact that a large number of villagers had come to the place of occurrence and those villagers are not forthcoming to support the prosecution case as admitted by the complainant-Nasir Iqbal. 8. It has been admitted by Nasir Iqbal (PW-2) the complainant, during cross-examination that, "we all the private PWs of this case are related inter se, and we are inimical with the accused persons." He (PW-2) deposed during cross-examination that, "about 500 fires were shot by the assailants during the occurrence. I hide behind the wall to save myself. I hide myself in the eastern boundary wall of the cattle shed. So long, the fight and the occurrence remained, in progress, I remained hidden myself behind the eastern boundary wall. The occurrence remained for 1/2 hour". Jahangir (PW-5) deposed that for about 10/15' minutes the firing remained continued during the alleged occurrence. He (PW-5) also deposed that he hid himself behind a wall to save himself behind the small height wall and the wood pieces as well as the manger of cattle. He (PW-5) also deposed that so far as the firing remained continued, he remained hidden himself behind the wall to save himself from the firing. He (PW-5) also deposed during cross-examination that his statement was recorded by the Investigating Officer on the same day at Toll Plaza. However, the complainant- Nasir Iqbal (PW-2) deposed that while leaving Jahangir (PW-5) and Gul Sher (given up PW) he went to report the incident to police in police station and on the way at Toll Tax near Darbar Muhammad Ghose, the complainant met with police. This statement of Jahangir (PW-5) falsifies himself. From the deposition of Nasir Iqbal (PW-2) and Jahangir (PW-5), it reveals that they did not witness the occurrence. Whereas in the site plan, the place from where the complainant witnessed the occurrence has been shown at point "J". It is admitted case of the prosecution that site plan (Ex.PM) was prepared on the pointing of the complainant and eye-witnesses. The position of the complainant-Nasir Iqbal (PW-2) has been shown at point "J" which reveals that the complainant
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while lying on the cot witnessed the occurrence. Whereas Jahangir (PW-5) was shown at point "K" which was at Northern side of the house. He (PW-2) admitted that all PWs are related inter se. Nasir Iqbal (PW-2) deposed during cross-examination that. "Shoukat Ali and Muhammad Ramzan deceased were my brothers, Muhammad Jahangir son of Abdul Sattar PW is my father. Muhammad Hanif son of Jahangir PW is my real brother. Jahangir son of Sajwar PW is brother-in-law (sala) of Muhammad Ramzan deceased. Shoukat AU son of Raja PW is my paternal uncle. Younas son of Haiba PW is my chacha-zad, Gul Sher son of Muhammad PW is son of my paternal aunt. (Phuphi)." 9. Nasir Iqbal (PW-2) admitted that Jahangir son of Sajwar (PW-5) is resident of 42/D village kallan Tehsil Depalpur. The distance between the alleged place of occurrence and the residence of Jahangir PW is at a distance of 15-Kilometers. Jahangir (PW-5) also deposed that it is correct that my village 42/D is situated in Tehsil Depalpur at a distance of 15/20 Kilometers in short way and 40/45 in long way. However, he (PW-5) admitted that he has no business and land in chak No,15/I.R. Jahangir (PW-5) was chance witness. He was not resident of the locality where the incident took place. The witness (PW-5) has not advanced…
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