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Petitioner: The State Asad Qurban Ellahi VS Respondent: Asad @ Asdu The State etc. Naseer Ahmed & 02 others
Court Name: Lahore High Court Judge(s): Abdul Sami Khan, James Joseph Title:The State Asad Qurban Ellahi vs Asad @ Asdu The State etc. Naseer Ahmed
& 02 others Case No.:Murder Reference No. 540 of 2009 Criminal Appeal No. 272-J-2008. Criminal Revision No. 774 of 2008. Date of Judgment:2015-06-02 Reported As: 2015 LHC 7842 Result: N/A Judgment James Joseph, J: This single judgment shall dispose of Criminal Appeal No. 272-J of 2008 filed by Asad alias Asdu and Naseer son of Khan Bahadur appellants, Murder Reference No. 540 of 2009 sent by the learned trial Court for confirmation of the death sentence of appellant Asad or otherwise and Criminal Revision No. 774 of 2008 filed by Qurban Elahi complainant as all matters have arisen out of one and the same judgment dated 29.11.2008 passed by learned Additional Sessions Judge, Sheikhupura in private complaint case under section 302/148/149 PPC Police Station Narang, District Sheikhupura outcome of case FIR No. 486/2000 dated 31.12.2000 registered under section 302/148/149 PPC at Police Station Narang District Sheikhupura. 02. Brief facts as enunciated in private complaint (Exh PA) filed by complainant Qurban Elahi are that on 31.12.2000 at 10.45 a.m. The complainant along with his brothers Irfan Elahi, Sohaib Elahi and his cousin Muhammad Boota son of Chiragh Din, Muhammad Asif son of Siddique, Shakeel Ahmad, Sajjid Najeeb were proceeding towards grain market for selling paddy. Muhammad Boota was driving the tractor while Irfan Elahi, Sohaib Elahi, Muhammad Asif, Shakeel Ahmad and Sajid Majeed boarded on the trolly. When they reached at a short distance from village, Asad alias Asdu, Shakeel Ahmad, Naeem, armed with Kalashnikov, Naeem son of Aslam armed with 12 bore gun, Naseer son of Muhammad Malik armed with fire arm weapon. Rizwan alias Murrad armed with Kalashnikov, Irfan Hassan son of Sharif armed with Kalashnikov, Zahid Manzoor alias Zahoor armed with Kalashnikov, Nasir son of Abdul Rasheed armed with Kalashnikov while boarded on three motorcycles without numbers plate came out from the village. Complainant felt apprehension that
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on the pretext of compromise Shakeel Ahmad may not cause any harm, he along with Sajwar Hussain equipped with fire arms chased them on the motorcycle. When they reached near the bridge of B.R.B Canal, they saw Muhammad Hanif, Muhammad Sharif armed with Kalashnikov, Allah Ditta armed with 12 bore gun, Naseer Ahmad son of Rafique, Naseer, Shabbir, Ayyaz son of Khan Bahadur, Attique, Abdul Rasheed armed with Kalashnikov along with three unknown persons who were already ambushed there came on the Pattri of canal in the meanwhile person who were boarded on three motorcycles reached there and they all stopped the tractor. Molvi Abdul Rasheed, Muhammad Hanif, Allah Ditta, Muhammad Shabbir unanimously raised lalkaras and asked Irfan Elahi etc. To alight from the tractor trolly. Then above said accused persons forcibly alighted Muhammad Boota, Sohaib Elahi and Irfan Elahi while Muhammad Asif, Shakeel Ahmad, Sajid Majeed remained seated on the tractor. Naeem son of Muhammad Hanif made fire shot on Irfan which landed on his left arm. Rizwan made fire shot which landed on right shoulder of Irfan. Sharif son of Malik made fire shot upon Irfan which hit on right side of his back. Irfan son of Sharif made fire shot which landed on his left kuhla, Ayyaz son of Khan Bahadur made a fire shot which landed on left thigh of Irfan. Naseer son of Malik made fire which hit on the left eye brow of Irfan Elahi who fell down on the ground. Zahid made fire with Kalashnikov which landed on right flank of Muhammad Boota. Naseer son of Rafique made fire shot which landed on right arm of Muhammad Boota who fell down on the ground. During this period Nasir, Asad alias Asdu made firing with their respective weapons which landed on left cheek and under the left ear of Sohaib Elahi. Hanif made fire which hit on buttock of Sohaib Elahi. Attique made fire shot which landed on right thigh of Sohaib Elahi. Sharif son of Ghulam Hassan made fire hitting his back side of his left shoulder. Allah Ditta and Naeem made fire shorts which landed on left leg lower part and foot of Sohaib. The accused persons resorted firing towards complainant and Sajwar but they did not receive any fire shot. Muhammad Boota, Sohaib Elahi and Irfan succumbed to the injuries at the spot. Motive behind the occurrence was that brother of Shakeel accused namely Shabbir was murdered and in this murder trial Irfan brother of accused was sentenced to death but one month prior Shakeel started to patch up the matter with the complainant party and by deceiving the complainant party murdered Muhammad Boota, Sohaib Elahi and Irfan Elahi, hence, this complaint. 03. After recording cursory evidence, the accused persons, were summoned by the learned trial court to face the trial. Learned trial Court, after observing all legal formalities provided under the Criminal Procedure Code, framed the charge on 07.03.2003 under section 302/148/149 PPC to which they pleaded not guilty and claimed trial, hence the prosecution evidence was summoned. 04. In order to bring home the guilt of the accused persons, the prosecution examined 12 PWs in total, gist of the prosecution evidence is as under: - PW-1 Qurban Elahi complainant reiterated the contents of complaint Exh PA. PW-2 Muhammad Asif being an eye witness of the occurrence corroborated the statement of complainant. He also witnessed the recovery of blood stained earth taken into possession by the IO vide memo Exh PB. PW-3 Shakeel Ahmad another eye witness of the occurrence also corroborated the statement of complainant. He also witnessed the recovery of blood stained earth taken into possession by the IO vide memos Exh PB, Exh PC & Exh PD. PW-4 Doctor Muhammad Iqbal Medical Officer conducted post mortem examination upon the
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dead body of Sohaib Elahi son of Muhammad Tufail and found the following injuries on his person: - 1. Lacerated wound 0.8 cm x .8 cm with colour of abrasion, inverted margins on left check (entry wound) fractured left cheek bone. 2. Lacerated wound 8 x 8 cm with colour of abrasion inverted margins, on left side of face, 1 cm in front of lower end of left ear. 3. Lacerated wound 6 cm x 5 cm on right cheek with everted margins. Fractured right cheek bone. (Exit wound). Injuries No.1 & 3 communicated with each other after fracturing hard palate. 4. Lacerated wound 1 cm x z cm inverted margins, with colour of abrasion was on front of right chest, 5 cm below an inner to right nipple, holes on clothes were present (entry wounds). 5. Lacerated wound 2-1/2 x 1 cm x inverted margins with colour of abrasions on upper outer back of left chest/oblique hole on cloth was present (entry wound). 6. Lacerated wound 5-1/2 x 2 z cm with everted margins on back upper part of left chest. 7. Lacerated wound 2-1/2 cm x 1 cm everted margins on upper part of back of right chest, hole on cloth was present. This injury communicated through muscle to injury No.2. 8. Lacerated wound z cm x z cm everted margins on lower inner part of left buttock 1 cm away from mid line (exit wound). A small metallic piece is found in muscles under it. Hole on right front chest for injury No.4. Entry wound communicated through passage as injury No.4. 9. Lacerated wound 3 cm x 1 cm everted margins, oblique on back inner and upper part of right thigh, exit wound. Hole on clothes was present. According to his opinion the injuries were ante-mortem in nature caused by fire arm. Injuries No. 2 to 4 were sufficient to cause death in ordinary course of nature resulting haemorrhage shock and death. Probable time that elapsed between death and post mortem was 18 to 36 hours. PW-5 Munawar Hussain Constable along with Abdul Majeed escorted the dead bodies of Muhammad Boota, Irfan Elahi and Sohaib Elahi to the mortuary for post mortem examination and after the post mortem examination he produced the last worn clothes of deceased persons which were taken into possession by the IO vide memos Exh PF and Exh PG. PW-6 Arif Hussain witnessed the recovery of crime empties taken into possession by the IO vide memo Exh PI, recovery of rifle from Naseer Ahmad son of Khan Bahadur accused vide memo Exh PJ. PW-7 Abdul Majeed identified the dead bodies of Irfan Elahi, Sohaib Elahi and Muhammad Boota deceased at the time of autopsy before the Medical Officer. PW-8 Doctor Noor-ul-Haq Medical Officer conducted the post mortem examination on the dead body of Muhammad Boota and found the following injuries: -
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1. A lacerated wound 3/4 x 3/4 cm with inverted margins on the outer front of right upper arm (entry wound). 2. A lacerated wound 1 x 1 cm on the inner surface of right upper arm. Margins were everted (exit wound) Injuries No.1 & 2 co-inside through muscles inner to the bone. 3. A lacerated wound 1- 1/4 cm x 1 cm with inverted margins on the lower area of right lateral side of chest. 4. A lacerated wound of 1-1/2 x 1-1/2 cm with everted margins on the upper area of left buttock. According to his opinion death in this case was occurred due to haemorrhage and shock due to injury No.2. Probable duration between injuries and death with within half hour and between death and post mortem was 12 to 36 hours. Elahi son of Muhammad Sarwar and found the following injuries: - 1. Lacerated wound 1-1/2 x 1 cm on the inner side of left eye brow. Margins were inverted. 2. A lacerated wound 3 x 3 cm with everted margins on the right side of fore head. 3. A lacerated wound 1 x 1 cm on the inner front of right elbow. Margins were inverted. 4. A lacerated wound 08 cm x 8 cm on the outer side of top of right shoulder. Margins were everted. 5. A lacerated wound 3-1/2 x 2 cm with inverted and abraded margins on lower front of left chest, 3 cm from the mid line. 6. A lacerated wound 2-1/2 x 2 cm with everted margins on the back of lower part of right chest, 7 cm from mid line. 7. A lacerated wound 08 cm x 08 cm with inverted edges on the interolateral area of left hip. 8. A lacerated wound 4 cm x 4 cm with everted margins on the upper back of left hip (Buttock). 9. A lacerated wound 08 cm x 8 cm with inverted margins on the back of left fore arm, 6 cm below the elbow. 10. A lacerated wound 1 cm x 1 cm with everted margins on the inner side of front of left elbow. 11. A lacerated wound 1 cm x 1 cm on the outer back of upper left thigh, margins were inverted. In his opinion death in this case had resulted from haemorrhage and shock and brain damage due to injuries No.1, 2, 5, 6, & 11 which were sufficient to cause death in ordinary course of nature. PW-9 Shahbaz Ahmad ASI chalked out formal FIR Exh PM/1 on the basis of complaint Exh PM without any addition or omission. PW-10 Inayat Khan Patwari prepared scale site plans of the place of occurrence Exh PN & Exh PN/1.
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PW-11 Muhammad Saleem constable executed non bailable warrants of arrest as well as proclamations of the accused persons namely Naeem son of Khan Bahadur, Naseer son of Muhammad Rafique, Naseer son of Muhammad Malik, Naeem son of Muhammad Hanif, Rizwan son of Ali Ahmad, Irfan son of Muhammad Sharif, Zahid son of Manzoor, Nasir son of Abdul Rashid, Hanif son of Habib, Muhammad Sharif son of Ghulam Hussain, Allah Ditta son of Ghulam Bani, Shabbir son of Khan Bahadar, Ayyaz son of Khan Bahadar, Attique son of Aslam and Molvi Abdul Rashid son of Ghulam Hassan. PW-12 Abdul Razzaq Inspector is the IO of this case who deposed regarding the steps taken by him during the investigation of this case. The prosecution has given up PWS Sajid, Sajwar Hussain, Mujahid Hussain, Zaheer Ahmad, Altaf Hussain and Abdul Majeed 410/C being unnecessary while Muhammad Hanif PW due to his death and after tendering in evidence reports of chemical examiner regarding blood stained earth of deceased persons Exh PCCC, Exh PDDD and Exh PEEE and closed the prosecution evidence. Thereafter following CWs were recorded. CW-1 Liaqat Ali SI partially investigated this case. CW-2 Imtiaz Ahmad Bhatti prepared incomplete challan against accused Naseer Ahmad son of Khan Bahadar and Naseer Ahmad son of Muhammad Rafique. CW-3 Ghulam Qasim DSP also investigated this case who deposed regarding the steps taken by him during the investigation of this case. CW-5 Zufarullah Khan S.I executed non-bailable warrants of arrest of PW. CW-6 Nazir Ahmad S.I also executed non bailable warrant of arrest of Riaz Abbas S.I. CW-7 Riaz Ahmad Inspector arrest accused Asad alias Asdu and Naseer son of Muhammad Malik and finalized the investigation to their extent. 05. Statements of the appellants were recorded under section 342 Cr.P.C. Who refuted the allegations so leveled against them. They neither opted to appear as a witness under section 340(2) Cr.P.C. Nor produce any defence evidence. In reply to question "Why this case against you and why the PWS deposed against you? The appellant Naseer son of Khan Bahadur replied as under: - "I have been implicated in this case falsely and due to malafide by the complainant with the connivance of local police. I have nothing to do with this occurrence. I also produced sufficient evidence before the police about my innocence and I was found innocent during investigation. I was not present at the time of occurrence at the place of occurrence. I have been roped in this false case through this private complaint at this belated stage. I am innocent. The PWs are related to the deceased, therefore, they deposed against me being inimical and interested." 06. While appellant/accused Asad alias Asdu while replying the same question deposed almost in the same wording which are reproduced as follows: -
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"I have been implicated in this case falsely and due to malafide by the complainant with the connivance of local police. I have nothing to do with this occurrence. I also produced sufficient evidence before the police about my innocence. I was not present at the time of occurrence at the place of occurrence. I have been roped in this false case through this private complaint at this belated stage. I am innocent. The PWs are related to the deceased, therefore, they deposed against me being inimical and interested." 07. After conclusion of the trial, learned trial court convicted Asad alias Asdu, Naseer Ahmad son of Khan Bahadur and Ayyaz son of Khan Bahadur under section 302(b) PPC. Asad alias Asdu was sentenced to death subject to confirmation by the August High court. Naseer Ahmad son of Khan Bahadur was convicted under section 302(b) PPC and awarded imprisonment for life for the murder of Sohaib Elahi while Ayyaz son of Khan Bahadur was awarded imprisonment for life for the murder of Irfan Elahi. All the convicts were also held liable to pay an amount of Rs. 50,000/- each u/s 544-A of Cr.P.C. In case of non-payment of compensation amount the convicts shall further undergo for six months S.I. Each. Hence, this appeal filed by Asad alias Asdu and Naseer appellant/convicts, revision petition and murder reference. 08. It is contended by learned counsel for the appellants that the evidence produced by the prosecution is full of contradictions and discrepancies; that no specific role against the appellants is levelled by the prosecution; that motive alleged by the prosecution was not proved; that the claim of the PWs is in conflict with the medical evidence; that nothing was recovered from the possession of the appellants; that the private complaint was lodged with an un-explained delay of about one year; that the judgment passed by the learned trial court is based on surmises and conjectures and is the result of mis reading and non-reading of evidence; that no specific injury is attributed to the appellants. Lastly, it is prayed that by accepting the appeal filed by the appellants, they may graciously be acquitted of the charge. 09. Conversely learned Deputy Prosecutor General assisted by learned counsel for the complainant has vehemently controverted the arguments advanced by learned counsel for the appellants while maintaining that by producing trust-worthy, convincing and reliable evidence the prosecution has successfully proved the charge against the appellants; that the judgment delivered by the learned trial court has been passed after thorough and proper evaluation of the evidence available on the file and is according to the settle principle of law, therefore, does not call for any interference; that it was a brutal murder in which three innocent persons lost their lives. Lastly, prayed for the dismissal of the appeal filed by the appellants and acceptance of revision petition filed by the complainant for awarding death sentence to Naseer Ahmad and Ayyaz sons of Khan Bahadur as well as for the enhancement of compensation amount. 10. We have heard the arguments advanced by the learned counsel for the parties and perused the record. 11. The details of prosecution story has already been given in the preceding paragraphs of this judgment, therefore, there is no need to repeat the same, however, in order to prove the ocular account Qurban Ali PW-1 appeared before the court and reiterated the same facts as mentioned in private complaint Exh PA. His examination-in-chief was recorded before the court on 27.09.2005 and the cross examination was reserved. There-after at the time of cross examination it was brought into the notice of the court that the complainant has died in a road side accident,
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therefore, he could not be cross examined, hence, such statement which has not been put to the test of cross examination is of no help to the prosecution. 12. Muhammad Asif appeared as PW-2 before the court and reiterated almost the same facts as mentioned in complaint Exh PA, however, he categorically maintained that Naseer accused and Asad alias Asdu appellant made fire shots with their respective weapons which hit Sohaib Elahi on his left cheek and left ear whereas specific allegation against Naseer son of Khan Bahadur was that he fired a shot which hit Sohaib Elahi on his left buttock. During cross examination while answering a question put to PW-2 he replied in the following manner: - "I did not appear before the Police/I.O. In connection with investigation of this case." He further replied that he is jobless after qualifying his M.A. Examination. In another question put to him from the defence side PW-2 replied in the following manner: - "I lived at Lahore since six months of the occurrence of this case." He further replied in another question put to him from defence side as under: - "Before examination in-chief in this case my statement was not recorded in connection with this complaint". PW-2 admitted that a criminal case under section 302/148/149 PPC was registered at Police Station Narang Mandi on the complaint of Muhammad Siddique regarding the murder of his son Akhtar Hussain against 28 persons including Muhammad Sharif accused of this case which was got registered by Ishtiaq alias Gullu complainant of that case. He further admitted it correct that Irfan accused of that case is his brother-in-law (Sala). It is correct that deceased Akhtar Hussain was real chachazad of Asad alias Asdu accused of this case. Asad alias Asdu and said complainant Muhammad Siddique were commonly doing agriculture and were having a common Havali. PW-2 further admitted that he had been residing in a house of his in-laws situated in Saeed Park Shahdara for six months after this occurrence and his marriage took place in 1997. However, he denied the suggestion that he had been living with his in laws since 1997. It is clear from the above mentioned deposition made by this PW:- (i) That he did not specify the fire made by appellant Asad alias Asdu hit which part of the body of the deceased Sohaib Elahi. (ii) He is not the resident of the locality where the occurrence took place and he has not afforded any plausible explanation of his being present at the place and time of occurrence. (iii) Surprisingly as admitted by this PW that although his name is mentioned in the FIR as PW but he never joined the investigation after the registration of the case and never came forward to claim his presence at the relevant time. (iv) He has categorically admitted that there was long standing enmity between the parties and he has also enmity with the appellant Asad alias Asdu as his brother-in-law (Sala) was the accused of murder of chachazad of appellant Asad alias Asdu.
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13. This PW has materially contradicted regarding the role ascribed to Naseer appellant with the medical evidence as according to this PW, Naseer appellant caused a fire arm injury on the buttock of deceased Sohaib Elahi but according to PW-4 Dr. Muhammad Iqbal, Medical Officer, who conducted autopsy on the person of Sohaib Elahi deceased the injury on the buttock was an exit wound and likewise injury on the back of inner and upper thigh was also an exit wound and was continuation of injury No. 4. 14. Further from the deposition made by the Medical Officer it is observed that the claim of this PW is falsified as no entry wound exists on the person of Sohaib Elahi deceased. Thus to our mind the conflict between oral and medical evidence has created doubt on the authenticity of the deposition made by PW-2. Further he remained unable to establish his presence satisfactorily at the time and place of occurrence, therefore, to our mind PW-2 is a chance witness. Further enmity is admitted between the parties, thus we are of the view that the deposition made by PW-2 is not worth of credence and reliance. 15. To corroborate the ocular account, Shakeel Ahmad appeared before the court as PW-3 and reiterated almost the same facts as mentioned in the complaint, however, during cross examination PW-3 while replying to the question put to him from the defence side replied in the following manner: - "I am serving in police department since 16 years as a constable and present I am posted at P.S. Gujjar Pura Lahore. I have only one daughter. My residence is in Shadbagh, Lahore in a house owned by me." He further replied to another question put to him in the following manner: - "I had not been appearing before the I.O?s during investigation of this case. I did not get recorded my Sarsari? Statement before the Magistrate. My statement was recorded in the court for the first time when examination-in-chief was recorded in this complaint." 16. It is clear from the above mentioned replies made by PW-3 that he never got recorded his statement under section 161 Cr.P.C. Before the IO at the time of registration of the case and he also did not got recorded his cursory statement. Further he has admitted that he is resident of Lahore and owned his house in Shadbagh and also living there. It appears that being relative of the complainant party he has been introduced as a PW to appear in the private complaint and he was never present at the time and place of occurrence. Admittedly he is serving in the police department and he knows each and every thing about the investigation. Had he been present at the time and place of occurrence, he must have appeared before the I.O. And his statement must have been recorded. Thus to our mind he was not present at the time and place of occurrence and at a very belated stage he has been introduced to become a PW. Further the same statement has been made by this PW. PW-2 gave the same role to both the appellants but as discussed above the role ascribed to Naseer appellant has been falsified by the medical evidence as no injury/entry wound exists on the buttock of deceased Sohaib Elahi, therefore, we hold that the deposition made by this PW is not worth of reliance and credence. Reliance is placed on the case law titled as "BAGH ALI versus MUHAMMAD ANWAR AND ANOHTER" (1983 SCM R 1292) wherein their lordships were pleased to hold as follows: - "There was an apparent contradiction in the doctor's saying that he found only one injury and the
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ocular testimony stating three injuries, which it was the obligation of the prosecution to clarify and not of the accused." Same view is taken in case titled as "SAINDAD AND 2 OTHERS versus THE STATE" (1972 SCM R 74) wherein their lordships were pleased to hold as follows: - "Similarly the medical evidence which says that there were five incised wounds on the body of the deceased caused by some sharp-cutting weapon such as hatchet, is inconsistent with the evidence of the two eye-witnesses that only two hatchet blows were given to the deceased by appellant Ghulam Rasul. In our opinion the learned Judges of the High Court were swayed more by speculations than actual evidence in brushing aside the medical evidence. These inconsistencies are enough to hold that the prosecution failed to prove its case against the appellants beyond any reasonable doubt." Further it was also held in case titled "FARMAN alias BHOLI versus The STATE" (2013…
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