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Petitioner: The State VS Respondent: Abbas and two others
Court Name: Lahore High Court Judge(s): Raja Shahid Mehmood Abbasi, Sadiq Mahmud Khurram Title: The State vs Abbas and two others Case No.: (1) Murder Reference No. 09 of 2018 (2) Criminal Appeal No. 116 of 2018 Date of Judgment:2020-11-05 Reported As: 2020 LHC 2723 Result: N/A
JUDGMENT
JUDGMENT SADIQ MAHMUD KHURRAM, J. Muhammad Abbas son of Muhammad Akram, Faisal Jabbar son of Muhammad Jabbar and Muhammad Yasir son of Muhammad Jabbar (convicts) were tried by the learned Additional Sessions Judge, Gujar Khan along with their co-accused namely Asad Jabbar son of Muhammad Jabbar (since acquitted) in the case instituted upon the private complaint titled "Muhammad Hussain Vs. Muhammad Abbas and three others" (relating to FIR No. 603 of 2014 dated 01.08.2014 registered at Police Station Gujar Khan, District Rawalpindi) in respect of offences under sections 302 and 34 PPC for committing the Qatl-i-Amd of Saqlain Mehmood Kiani son of Muhammad Hussain Kiani (deceased). The learned trial court vide judgment dated 25.01.2018, convicted Muhammad Abbas son of Muhammad Akram, Faisal Jabbar son of Muhammad Jabbar and Muhammad Yasir son of Muhammad Jabbar (convicts) and sentenced them as infra: Muhammad Abbas son of Muhammad Akram: Death under section 302(b) PPC as Tazir for committing Qatl-i-Amd of Saqlain Mehmood Kiani son of Muhammad Hussain Kiani (deceased) and directed to pay Rs.100,000/- 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. Faisal Jabbar son of Muhammad Jabbar: Death under section 302(b) PPC as Tazir for committing Qatl-i-Amd of Saqlain Mehmood Kiani son of Muhammad Hussain Kiani (deceased) and directed to pay Rs.100,000/- 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. Muhammad Yasir son of Muhammad Jabbar:
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Imprisonment for life under section 302(b) PPC as Tazir for committing Qatl-i-Amd of Saqlain Mehmood Kiani son of Muhammad Hussain Kiani (deceased) and directed to pay Rs.100,000/- 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 namely Muhammad Yasir was, however , extended benefit available under Section 382-B of Code of Criminal Procedure, 1898 (hereinafter referred to as "Cr .P.C.)". The co-accused namely Asad Jabbar son of Muhammad Jabbar was acquitted by the learned trial court. 2. Feeling aggrieved, Muhammad Abbas son of Muhammad Akram, Faisal Jabbar son of Muhammad Jabbar and Muhammad Yasir son of Muhammad Jabbar (convicts) lodged Criminal appea l No.116 of 2018 against their convictions and sentences. The learned trial court submitted Murder Reference No.09 of 2018 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentences of death awarded to the appellants namely Muhammad Abbas son of Muhammad Akram and Faisal Jabbar son of Muhammad Jabba r. We intend to dispose of the Criminal Appeal No. 1 16 of 2018 and Murder Reference No.09 of 2018 through this single judgment. 3. Precisely the facts necessary , as divulged in the statement of Muhammad Hussain Kiani (PW -4) as under:- "Sated that on 1st August, Friday in year 2014, I alongwith Saqlain Mehmood, Arbab Arab Younis son of Muhammad Younis and Muhammad Liaqat son of Muhammad Riasat was sitting on Qaisar Hotel at Jabbar Thathi Adda, at about 9:30 am Muhammad Abbas son of Muhammad Akram, Faisal Jabbar , Yasir Jabbar all armed with 30 bore pistols, Asad Jabbar armed with 44 bore rifle sons of Muhammad Jabbar residents of the village Phaleena came there. Asad Jabbar accused raised lalkara that today we will not let Saqlain Mehmood alive and started aerial firing. Accused Yasir Jabbar , with intentio n to commit qatl-e-amd, made straight fire with 30 bore pistol which hit Saqlain Mehmood on the left side of joint of left thigh. Saqlain Mehmood moved a little back when Muhammad Abbas son of Muhammad Akram, with intention to commit qatl-e-amd made straight fire with 30 bore pistol which hit Saqlain Mehmood on right side of his head. Accused Faisal Jabbar , within intention to commit qatl-e-amd made straight fire from 30 bore pistol which hit Saqlain Mehmood on left side of his chest. Saqlain Mehmood fell down in the hotel in severe injured condition. Hue and cry raised by us attracted many people at the place of occurrence. Accused persons decamped the place of occurrence while making firing. I alongwith other PWs taking Saqlain Mehmood to T.H.Q, Hospital, Gujar Khan but he succumbed to the injuries on the way to the hospital. We reached at T.H.Q, Hospital, Gujar Khan. Muhammad Arshad SI recorded my statement Ex.PF which bears my signature Ex.PF/1. Thereafter , I alongwith Arbab Younis and Muhammad Arshad SI went the Qaisar Hotel, Jabbar place of occurrence. Muhammad Arshad SI collected five empties of 44 bore rifle P3/1-5, three empties of 30 bore pistols P4/1-3, from inside the hotel. (At this state, learned counsel for the complainant has requested that the original recovery memos be transferred from the police file to the file of complainant and be exhibited to which learned counsel for the accused has raised objection that complainant was required to attach attested copies of the recovery memos and other documents which complainant want to produce and the proceedings of complaint case are being conducted independently hence, the original recovery memos etc. cannot be transferred from the challan case to the file of private complaint. I have considered the arguments of learned counsel for the complainant and learned counsel for the accused. As the private complaint pertains to same incident and complainant has filed this private complaint aggrieved of the result of the investigation so in my view documents available in a challan case may be transferred in the private complaint) and took into possession vide recovery memo Ex.PG, attested by me and Arbab Younis PW. Said SI also collected blood stained earth through cotton and made sealed parcel with stamp M.A and took into possession vide recovery memo Ex.PH, attested by me and Arbab Younis. From 01.8.2014 to 23.9.2014, Muhammad Arshad SI conducted investigation of the case. On 16.9.2014, accused Muhammad Abbas and Yasir Jabbar were arrested. On 22.9.2014, accused Faisal Jabbar and Asad Jabbar were arrested. On 24.9.2014, investigation of the case was entrusted to Muhammad Arif SI. On 25.9.2014, I produced eye witnesses and large number of other persons who supported my version. A few persons appeared before the Investigating Officer from the side of accused and got recorded their names and addresses. They did not make any statement to Investigating Officer in our presence. Muhammad Arif SI assured me that all the accused nominated in the FIR are guilty and they have confessed their guilt before him and have made disclosure regarding the weapons of offence. Subsequently it transpired that accused Muhammad Abbas, Faisal Jabbar , Asad Jabbar have been
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declared innocent and placed in column No.2 of the challan by Muhammad Arif SI. Muhammad Arif SI, by joining hands with the accused persons, recorde d fictitious statements of the defense witnesses and due to this reason I have filed the instant private complaint Ex.PJ which bears my signature Ex.PJ/1." 4. The accused i.e. the appellants namely Muhammad Abbas son of Muhammad Akram, Faisal Jabbar son of Muhammad Jabbar and Muhammad Yasir son of Muhammad Jabbar and their co-accused namely Asad Jabbar (since acquitted), were summoned to face trial in the case instituted upon the private complaint titled "Muhammad Hussain Vs. Muhammad Abbas and three others" (relating to FIR No. 603 of 2014 dated 01.08.2014 registered at Police Station Gujar Khan, District Rawalpindi) in respect of offences under sections 302 and 34 PPC for committing the Qatl-i-Amd of Saqlain Mehmood Kiani son of Muha mmad Hussain Kiani (deceased). The learned trial court framed the charge against the accused on 16.06.2015, to which the accused pleaded not guilty and claimed trial. 5. The complainant in order to prove its case got statements of as many as five witnesses recorded. The ocular account of the case was furnished by Muhammad Hussain Kiani (PW-4) and Arbab Younis (PW-5). Muhammad Yousaf (PW-1) stated that on 01.08.2014, he identified the dead body of the dece ased at the time of post mortem examination and on 22.09.2014 Yasir Mehmood (appellant) led to the recover y of pistol (Exh.P-1). Khurram Shahzad draftsman (PW -2) prepared the scaled site plan of the place of occurrence. 6. The learned trial court also examined as many as eight witnesses as court witnesses. Muhammad Azam 3336/C (CW-1) stated that on 01.08.2014, he escorted the dead body of the deceased to the hospital for its post mortem examination and received the last worn clothes of the deceased from the Medical Officer. Muhammad Mashkoor 5773/C (CW-2) stated that on 09.09.20 14 he was entrusted non-bailable warra nts of arrest of the appellants namely Muhammad Abbas, Yasir Jabbar , Faisal Jabbar for their execution and on 12.09.2014 he returned the same un-served with his report on back side of the same and on 15.09.2014 he was entrusted the proclamation of the appellant Faisal Jabbar (Exh.CF), Muhammad Abbas (Exh.CG), Yasir Jabbar (Exh.CH) declaring the appellants to be a proclaimed offender . Ghazanfar Mehmood 833/HC (CW-3) stated that on 01.08.2014 Muhammad Arshad S.I. (CW-6) handed over to him a sealed parcel said to contain blood stained cotton which on 19.08.2014 he handed over to Tayyab Jehangir 5652/C (CW-5) for its onward transmission to the office of Punjab Forensic Agency , Lahore and on 22.09.2014, Muhammad Arshad SI (CW-6) handed over to him one sealed parcel said to contain pistol 30 bore alongwith three live bullets which he kept in malkhana and on 03.10.2014 he handed over the said sealed parcel to Muhammad Arshad (CW-3) for its onward transmission to the office of Punjab Forensic Science Agency , Lahore. Qaisar Rasheed SI (CW-4) stated that on 01.08.2014, he recorded the formal FIR (Exh.CK). Muhammad Arshad SI (CW-7) investigated the case from 01.08.2014 till 04.10.2014, arrested Yasir Jabbar and Muhammad Abbas(appellants) on 16.09.2014,arrested Faisal Jabbar(appellant) on 22.09.2014 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court. Muhammad Arif SI (CW-8) stated that he investigated the case from 24.09.2014 till 04.10.2014 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court. 7. The learned trial court also examined Dr. Shahid Mehmood (PW 3), who on 01.08.2014 was posted with Dr. Muhammad Jamshaid Ashraf (who has since gone abroad and his attendance could not be procured due to the said reason ) at THQ hospital Gujar Khan and was familiar with his writing. Dr. Shahid Mehmood (PW-3) stated that Dr. Muhammad Jamshaid Ashraf on 01.08.2014 conducted the postmortem examination of the dead body of Saqlain Mehmood Kiani (deceased). According to the post-mortem examination report (Exh.PD), Dr. Muhammad Jamshaid Ashraf, on examining the dead body of Saqlain Mehmood Kiani (deceased) observed as under: "1. Entry wound located on right side of skull 8cm above lateral angle of right eye, measuring .5x.5cm. margins of wound inverted. 2. Exit wound on posterior part of skull, middle of occipit measuring 1x1.5cm. Margins everted. 3. Entry wound on chest 4 cm medially to mid line from left nipple size of wound .5x.5cm. Margins were inverted. Burning present on margins. 4. Exit wound on the back of chest, left side of the level of second thoracic vertebra 10cm from medial line. Margins were everted, size 1x1cm.
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5. Entry wound on left leg, medial to anterior superior iliac spine. Burning and black ening present, margins inverted, size 0.5x0.5cm. 6. Exit wound on left hip measuring .5x.5 located at centre of left buttock. Margins everted. .................................. Opinion. In my opinion, death was caused by cardiopulmonary shock resulted from injuries No.1,2,3 &4 which were sufficient to cause death in normal course of nature. Probable time between injury and death: 10 to 15 minutes Probable time between death and postmortem: 3 hours." 7. On 06.05.2017 the complainant gave up witnesses namely Muhammad Shafique and Saftain Mehmood as being unnecessary and closed his evidence on 12.12.2017. On 04.01.2018 the learn ed counsel for the complainant closed the prosecution evidence after tendering in evidence the report of Punjab Forensic Science Agency , Lahore regarding the examination of the piece of cotton (Exh.PK) and the report of Punjab Forensic Science Agency , Lahore regarding the comparison of the pistol with the empties (Exh. PL). 8. After the closure of prosecution evidence, the learned trial court examined the appellants Muhammad Abbas son of Muhammad Akram, Faisal Jabbar son of Muhammad Jabbar and Muhammad Yasir son of Muhammad Jabbar under section 342 Cr.P.C. and in answer to question why this case against you and why the PWs have deposed against you, they replied that they had been involved in the case falsely and were innocent. The appellants namely Muhammad Abbas son of Muhammad Akram, Faisal Jabbar son of Muhammad Jabbar and Muhammad Yasir son of Muhammad Jabbar opted not to get themselves examined under section 340(2) Cr.P.C. and did not adduce any evidence in their defence. 9. On the conclusion of the trial, the learned Additional Sessions Judge, Gujar Khan convicted and sentenced the appellants as referred to above. 10. The contention of the learned counsel for the appellants precisely is that whole case is fabricated and false and the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence. Learned counsel for the appellants further contended that the story of the prosecution mentioned in the statements of the witnesses, on the face of it, is highly impro bable. Learned counsel for the appellants further contended that the statements of the prosecution witnesses were not worthy of any reliance. The learned counsel for the appellants also submitted that the recovery was full of procedural defects, of no legal worth and value and result of fake proceedings. The learned counsel for the appellants also argued that the appellants had been involved in the occurrence due to enmity . The learned counsel for the appellants finally submitted that the prosecution has totally failed to prove the case against the accused beyond the shadow of a doubt. 11. On the other hand, the learned Deputy Prosecutor General alongwith the learned counsel for the complainant contended that the prosecution has proved its case beyond the shadow of a doubt by producing independent witnesses. They further argued that the deceased died as a result of injuries suffered at the hands of the appellants. They further contended that the medical evidence also corroborated the statements of Muhammad Hussain Kiani (PW-4) and Arbab Younis (PW-5). They further argued that the recovery of the pistol (P-1) from the appellant namely Muhammad Yasir 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 offender with the innocent in this case. Lastly , he prayed for the rejection of the appeal. 12. We have heard the learned counsel for the appellants, the learned Deputy Prosecutor General and with their able assistance perused the record and evidence recorded during the trial. 13. The whole prosecution case revolves around the statements of Muhammad Hussain Kiani (PW-4) and Arbab Younis (PW-5). The relationship of the said witnesses with the deceased is on record. Saqlain Mehmood Kiani, deceased, was the son of Muhammad Hussain Kiani (PW-4) and paternal cousin of Arbab Younis (PW-5). Muhammad Hussain Kiani (PW-4) and Arbab Younis (PW-5) were admittedly not the residents of the place of occurrence. Muhammad Hussain Kiani (PW-4) and Arbab Younis (PW-5) were the residents of village Phaleena whereas the occurrence took place at Jabbar Thathi Adda . Muhammad Arif, S.I. (CW-8), the Investigating Officer of the case, during cross-examination conducted upon him by the learned counsel for the complainant stated that the
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distance between village Phaleena and the place of occurrence was 5/6 kilometers . Both the witnesses namely Muhammad Hussain Kiani (PW-4) and Arbab Younis (PW-5) did not provide any reason for them to be present at a restaurant situated at Jabbar Thathi Adda , a place which was at a distance of as much as 5/6 kilometers from their residence and that too at 9:30 a.m. in the morning. Both the witnesses namely Muhammad Hussain Kiani (PW-4) and Arbab Younis (PW-5) even failed to mention any reason for their presence at the place of occurrence at the time of occurrence .While appearing before the learned trial court both the witnesses namely Muhammad Hussain Kiani (PW-4) and Arbab Younis (PW-5) did not utter a single word as to why they were present at the restaurant at the time of occurrence and for what purpose. It is an admitted fact that none of the prosecution witnesses namely Muhammad Hussain Kiani (PW-4) and Arbab Younis (PW-5)had their residences or their houses or any temporary residence at the place of occurrence. They were all "chance witnesses" . We have also perused the scaled site plan of the place of occurrence (Exh.PC) as prepared by Khurram Shahzad, Draftsman (PW-2) and and the rough site plan (Exh.CL) as prepared by Muhammad Arshad S.I. (CW-7) and find that neither any house nor any shop nor any temporary place of residence belonging to Muhammad Hussain Kiani (PW-4) and Arbab Younis (PW-5) is marked in the same. Furthermore, there is no explanation as to how the accused came to know about the travelling plans of the deceased and his presence at the place of occurrence when according to Muhammad Arif S.I. (CW-8), the house of the appellants was at a distance of 5/6 kilometers from the place of occurrence. Muhammad Hussain Kiani (PW-4) and Arbab Younis (PW-5) did not state that it was usual for them and part of their routine to be present at the restaurant which was situated at a distance 5/6 kilometers from their residence. In this manner , the prosecution witnesses have failed miserably to establish the reason for their presence at the place of occurrence at the time of occurrence. We have also noted that the alleged eye witnesses namely Muhammad Hussain Kiani (PW- 4) and Arbab Younis (PW-5) were not mentioned in column No.4 or page 4 of the inquest report (Exh. PF) as being the ones who were present at the time of preparation of the said inquest repor t (Exh. PF) by the investigating officer. These witnesses were also not the ones who had identified the dead body of the deceased at the time of the postmortem report. All these omissions are conspicuous by their absence. In absence of physical proof or 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 compla inant (PW3), Ghulam Farid (PW6) and Manzoor Ahmed (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 observed that according to the statements of Muhammad Hussain Kiani (PW-4) and Arbab Younis (PW-5) the incident of firing at the deceased Saqlain Mehmood Kiani happened in an area surrounded by various shops. Both Muhammad Hussain Kiani (PW-4) and Arbab Younis (PW-5) stated that the occurrence took place while they were sitting at a restau rant named as Qaisar Hotel situated at Jabbar Thathi Adda . Both the witnesses namely Muhammad Hussain Kiani (PW-4) and Arbab Younis (PW-5) stated that the said Qaisar Hotel was surrounded by many shops and that the place of occurrence was frequented by many people. Muhammad Hussain Kiani (PW -4) during cross-examination stated as under: "It is correct that the passenger , cleaners, drivers of the said vehicles remained available Thathi Adda Jabbar . ..............................
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There are shops on the said Adda on other side of the road. The door of the hotel where we were sitting opens towards the main road. Hotel is adjacent to main road." Similarly , Arbab Younis (PW -5), during cross-examination stated as under: "It is correct that door of hotel opens at the main road. On the norther side of the hotel, there is a bakery , on its southern side there is Adda. The shops are on the other side of hotel." Admittedly none of the shop keepers, who were present at the place of occurrence at the time of occurrence, as mentioned by the eye witnesses themselves. were examined during the investigation of the case or appeared as prosecution witnesses before the learned trial court during the trial to support the prosecution case. It is further an admitted aspect of the case that no one, other than the related witnesses, was examined during the trial of the case as witness. We have also perused the scaled site plan of the place of occurrence (Exh.PC) as prepared by Khurram Shahzad, Draftsman (PW-2) and the rough site plan (Exh.CL) as prepa red by Muhammad Arshad, S.I. (CW-7) and find that numerous shops have been identified at the place of occurrence. Muhammad Hussain Kiani (PW-4) during his cross-examination admitted as under: "The persons who collected at the place of occurrence on our hue and cry, had come from the shops on both sides and some of them were passerby . It is correct that no one from the above stated persons appeared during the investigation in support of our version. ............................................................. It is correct that no one from the shop keeper of the shops or passerby appeared to support our version." In a similar manner , Arbab Younis (PW -5) also admitted during cross-examination as under:- "Many persons from the shops collected at the place of occurrence on our hue and cry. I cannot tell the exact number of the persons attracted there. All the said persons were known to me as we are from the same bazaar . It is correct that none from the said persons is witness of the case." As mentioned above, none of those who had their shops at the place of occurrenc e, appeared before the learned trial court in support of the prosecution case. The purpose of the trial is the discovery of truth. As long as men keep lying the only causality would be the reality . Furthermore, the employees of the Qaisar hotel , the place of occurrence, also were not examined during the investigation of the case or appeared during the trial before the learned trial court. They were the most natural witnesses of the occurrence as their presence at the place of occurrence, being employees of the said Qaisar Hotel , could not be disputed. Arbab Younis (PW-5) during cross- examination admitted as under: "Investigating Officer did not record the statement of shop keeper or workers of hotel. Muhammad Arshad, S.I. (CW -7), the Investigating Of ficer of the case, during cross-examination stated as under: "It is correct that I did not interrogate any employee of the hotel throughout my investigation. It is correct that I did not record the statement of any shopkeeper of the nearby shops." The failure of the prosecution to produce the said employees of the…
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