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Petitioner: NADEEM IQBAL and others VS Respondent: The STATE through Additional Advocate JUDGMENT
Court Name: Shariat Court of Azad Jammu and Kashmir Judge(s): M. Tabassum Aftab Alvi, Muhammad Sheraz Kiani Title:NADEEM IQBAL and others vs The STATE through Additional Advocate
JUDGMENT
Reported As: 2018 YLR 1922 Result: Sentence reduced Judgment JUDGMENT M. TABASSUM AFTAB ALVI, C.J.---The captioned Appeals and Reference arise out of the same judgment dated 16.08.2010. passed by the learned District Court of Criminal Jurisdiction, Mirpur, therefore, these are being consolidated and decided together through the instant judgment. 2. The facts precisely stated are that complainant, Muhammad Ramzan son of Haji Jalaldeen, submitted a written report to Aamir Shahzad Nawabi, SHO, at District Hospital, Mirpur, on 11.08.2006, at 22:35, stating therein that Muhammad Haneef's house is situated in front of his house. Miskeen is brother-in-law of Muhammad Haneef and now-a-days Muhammad Haneef's daughters came from England to stay there. On 10.08.2006, his wife was sitting in courtyard of the house, when daughters of Muhammad Haneef and Miskeen, standing on roof, hurled abuses. Thereupon, he called for Muhammad Haneef. on 11.08.2006, at 6:30 p.m., and was telling, him about abuses, meanwhile, Muhammad Haneef's wife Mst. Nasreen, also arrived there and at once started hurling abuses. He asked Muhammad Haneef, to forbid his wife; however, threatening him went inside the house. Thereafter, he and Muhammad Haneef also went to their houses. It was further averred that complainant along with his brother Muhammad Yaseen, Adnan (son) and Asif son of Yusuf, had seated in courtyard of his house, meanwhile, at about 8:30 p.m., they heard sound of hitting stones on main gate. On hearing sound, Muhammad Yaseen, Adnan, Asif and complainant went at the gate and as soon as Muhammad Yaseen, opened gate, accused (i) Nadeem, (ii) Muhammad Haneef, (iii) Miskeen, were armed with pistols, whereas (iv) Waseem, was armed with Kalashnikov like weapon, they at once started firing upon Muhammad Yaseen, who received two bullets injuries on chest, by the firing of Nadeem, accused, and bullets also landed on left side of his throat and
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shoulder, by the firing of Muhammad Haneef, accused, whereas two bullets hit on his right thigh by the firing of Miskeen, who sustaining serious injuries fell down and accused-persons fled away. The occurrence was done by accused in a preplanned manner. Besides complainant, the occurrence was witnessed by Adnan, Asif and many other people. Muhammad Yaseen, victim, was being brought to Hospital, who succumbed to the injuries on the way. 3. As per the aforesaid report, Aamir Shahzad Nawabi, S.H.O., sent an epistle to Police Station City, Mirpur, for registration of case; hence, case bearing FIR No,125/2006, was registered in offences under sections 302 and 34, A.P.C., at 10:35 p.m., against accused-persons, on 11.08.2006. The postmortem of Muhammad Yaseen, deceased, Exh.PHII, was conducted by Dr. Aatif Anwar, C.M.O., .D.H.Q Hospital, Mirpur. After registration of the case, investigation was started by police. On 12.08.2006, police recovered, blood of deceased, P-1, through cotton (vide recovery memo Exh.PE), three empties of 30-bore pistol, P/2-4, four empties of 30-bore P/5-8, one magazine P-9, and five live rounds P/10-14 (vide recovery memo. Exh.PD), two stones P/15-16 (vide recovery memo Exh.PG) and bloodstained clothing of deceased, Shalwar and Qameez, P-17 and P-18, (vide recovery memo Exh.PJ), in presence of Abdul Rahman and Shahid Iqbal P. Ws. Thereafter, accused were arrested and on pointation of Nadeem Iqbal, accused, a .30-bore pistol bearing No,59, P-19, along with a magazine, P-20, and five live rounds, P-21 to P-25, were recovered from hayrack of a room containing chaff, on 13.08.2006, in presence of the aforesaid P.Ws (vide recovery memo Exh.PK). A 222 rifle P-26 along with a magazine P-27, at the instance of Muhammad Waseem, accused, was also recovered from hayrack of a room containing chaff, on 13.08.2006, in presence of the aforesaid P.Ws (vide recovery memo Exh.PL). Muhammad Haneef, accused, pointed out that after occurrence, he concealed pistol in the house of Muhammad Miskeen, hence, in presence of the aforesaid witnesses, he got recovered an unnumbered .30-bore pistol, P-28, along with a magazine, P-29, and on hilt of its body, 66 was incorporated, from an iron drum lying in a room containing chaff, on 28.08.2006 (vide recovery memo Exh.PM). On pointation of Muhammad Miskeen, accused, an unnumbered .30-bore pistol, P-30, along with a magazine, P-31, was recovered from the same iron drum lying in a room containing chaff, in presence of the aforesaid P.Ws. on 28.08.2006 (vide recovery memo Exh.PN). The site plan and its keynotes Exh.PDD were also got prepared from Matloob Hussain Patwari, on 18.08.2006. The report of Forensic Science Laboratory Punjab, Lahore, dated 11.09.2006, the letter written by Director FSL Punjab to Superintendent of Police District, Mirpur, dated 20.09.2006, the report of Chemical Examiner Punjab, Lahore, dated 04.09.2006, and the report of Serologist dated 10.02.2007, are part of the file, however, the same were not exhibited. 4. After completion of investigation, accused-persons. namely, Nadeem lqbal, Muhammad Haneef, Muhammad Miskeen and Muhammad Waseem, were challaned in offences under sections 302, 34, A.P.C. and 13/20/65, Arms Act, before concerned Court, whereas, Asif Mahmood, was exonerated by police under section 169, Cr.P.C. The District Court of Criminal Jurisdiction, Mirpur, after submission of challan, recorded statements of accused-persons under section 242, Cr.P.C, on 30.10.2006, who pleaded not guilty. Thereupon, prosecution was ordered to produce evidence in support of its case, which was produced. The evidence adduced by prosecution against accused-persons, was put to them as required by section 342, Cr.P.C., on 30.01.2010. The accused Muhammad Haneef and Muhammad Waseem, opted to get recorded their statements on oath, whereas Nadeem lqbal and Muhammad Miskeen, denied the same. 5. The learned District Court of Criminal Jurisdiction, Mirpur, after conclusion of trial and hearing arguments, awarded death sentence as 'Tazir' to Nadeem Iqbal, accused, under section 302(b), A.P.C. and 03 years simple imprisonment under section 13/20/65, Arms Act, whereas accused- persons, Muhammad Haneef alias Godar, Muhammad Miskeen and Muhammad Waseem, while extending them benefit of doubt, were acquitted of the charges, vide the impugned judgment
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dated 16.08.2010; The appellant-convict, Nadeem lqbal, feeling aggrieved from conviction and sentences, has filed Appeal No,40/2010 dated 19.08.2010. The complainant, Muhammad Ramzan as well as Mst. Asia Bi, widow of Muhammad Yaseen, deceased, preferred Appeal No,41/2010 dated 24.08.2010, against convict-appellant, Nadeem lqbal, for altering his death sentence from 'Tazir' to 'Qisas' and for awarding punishment under law to acquitted-respondents, whereas Reference No,39/2010, dated 18.08.2010, was sent by District Court of Criminal Jurisdiction, Mirpur, for confirmation of death sentence of Nadeem Iqbal, convict-appellant. The aforesaid Appeals as well as Reference are the subject matter of the instant judgment. 6. Raja lnamullah Khan, the learned Counsel for convict-appellant and acquitted-respondents- accused, narrated roles of accused-persons attributed to them by prosecution that Muhammad Yaseen, deceased, received two bullets injuries of .30-bore pistol on his chest by the hands of Nadeem Iqbal, accused, two bullets injuries of .30-bore pistol on left side of his throat and shoulder by the firing of Muhammad Haneef, accused, and two bullet injuries of .30-bore pistol on his right thigh by the firing of Miskeen, whereas Muhammad Waseem, accused, was ascribed to be armed with Kalashnikov like weapon; however, 222-bore rifle was recovered from him. The learned Counsel pointed out that except Nadeem Iqbal, accused, other accused-respondents were acquitted of the charges, whereas according to prosecution story, same role was attributed to Nadeem lqbal, accused; however, he was awarded death sentence as 'Tazir'. He stressed on the point that as per prosecution story, incident took place at about 8:30 pm, however, prosecution neither disclosed the source of light in FIR nor in statements of P.Ws. recorded under section 161, Cr.P.C. and it is admitted by prosecution witnesses that at the time of occurrence, due to power load shedding, light was off; hence, identification of accused-persons was a serious question mark in prosecution story; however, later on, when at the stage of bail of Muhammad Waseem, aged 17 years, the point of light was raised, on 16.12.2006, then prosecution made a vital improvement in statements that at the time of occurrence a Generator was on, and the trial Court while discussing upon the same point in its impugned judgment, at page 65, held that at the time of occurrence, due to power load shedding, light was off and prosecution stance, regarding existence of Generator light at the time of occurrence, was declared doubtful and in Court's opinion, identification of all the accused-persons at the time of occurrence, happens to be difficult; therefore, when identification of all the accused-persons was question mark in prosecution story, then it was a strong mitigating circumstance for acquittal of Nadeem lqbal, convict-appellant; hence, he was too entitled to be acquitted of the charges. He submitted that motive of murder. as set-up by prosecution, is that Muhammad Haneef's and Miskeen's daughters hurled abuses to Ramzan's wife, was shrouded in mystery, because according to prosecution story, accused had grudge with Muhammad I lance f, but astonishingly Muhammad Yaseen deceased, was hit despite the fact that Muhammad Haneef was present at the spot: however, he was not hit by accused- persons; hence, extreme penalty is not warranted. He further argued that Nadeem Iqbal, convict, was sentenced only on the basis of FSL report that seven recovered crime empties were matched with 30-bore pistol bearing Nos,59 and 66, recovered from Nadeem lqbal, convict, whereas 66 number 30-bore pistol was shown to be recovered from Muhammad Haneef, accused, vide recovery memo Exh.PM, while the aforesaid FSL report was not exhibited/tendered in evidence; therefore, prosecution case was fully suspicious, on the basis of which the aforesaid convict entailed acquittal. The learned Counsel contended that as per statement of investigating officer, recovery witnesses were already present at the place of recoveries of pistols, which means they were planted witnesses. He stressed on the point that if all the seven recovered empties, were fired from the pistol recovered from Nadeem Iqbal. convict, then prosecution was badly damaged, because according to eye-witnesses, the aforesaid accused fired only two shots upon deceased, which makes the prosecution case highly doubtful and a very strong mitigating circumstance for
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acquittal of Nadeem lqbal, accused, too. He contended that as per prosecution story, Muhammad Haneef's daughters hurled abuses to Ramzan's wife, but at the time of occurrence neither Muhammad Ramzan, nor his son Adnan, were hit by accused-persons, which means that ,occurrence did not take place in the manner, as alleged by prosecution. Ile contended that no bullet holes were found on clothing of deceased and sizes of bullets on the person of deceased were different in sizes. He further contended that as per prosecution story Muhammad Yaseen, deceased, opened main gate and they were coming behind him; however, this story is negated by the statement of Muhammad Asif P.W, who deposed that main gate was closed, hence, he took out his motorcycle from the gate of neighbourer. which creates suspicious that occurrence vas witnessed by P.Ws. The learned Counsel maintained that according to prosecution story many other people witnessed occurrence; however, none of them was cited as prosecution witness. He further emphasized that other natural witnesses, who were inmates of Muhammad Ramzan's house, also not cited as witnesses. The learned Counsel stressed on the point that place of occurrence was not the same, as alleged and shown in site plan, firing was attributed to three accused-persons, but neither any bullet hit on wall or to witnesses, who were coming behind victim. The learned counsel contended that according to copy of 'Aks-Masavi', empties were recovered from other street which was situated at East-Northern side; hence, the aforesaid recovery lost value. He pointed out that during postmortem three pieces of bullet were recovered and sent to serologist, but report was not brought on record, from which it could not be determined whether the same were related to .30-bore pistols or something else; hence, the aforesaid evidence was withheld by prosecution. The learned Counsel contended that although the report of Forensic Science Laboratory Punjab, Lahore, dated 11.09.2006, the letter written by Director FSL Punjab to Superintendent of Police District, Mirpur, dated 20.09.2006, the report of Chemical Examiner Punjab, Lahore, dated 04.09.2006, and the report of Serologist dated 10.02.2007_ are part of the file, however, the same were not exhibited in evidence: therefore, the same could not be read against accused-persons. He pointed out that as per prosecution story many other people were present on spot, who were not associated as P.Ws, rather related and interested witnesses were cited; hence, their statements were not reliable. He submitted that supplementary statement recorded under section 161, Cr.P.C. cannot be considered. He further contended that there was nothing on record that investigating officer was imposed non-confidence by prosecution during investigation of the case. The learned Counsel submitted that prosecution case is full of doubts; therefore, by considering overall facts and circumstances of the case, all accused-persons entail acquittal. The learned Counsel finally prayed that by accepting Appeal No,40/20,10, Nadeem Iqbal, convict, may also be acquitted of the charge of murder. The learned Counsel; in support of his arguments, cited the following case law:- i. 2008 SCR 552. ii. 2010 SCR 75, iii 2017 SCM R 344. 7. Conversely, Mr. Khalid Rasheed Chaudhary, the learned Counsel for complainant, submitted that FIR was lodged promptly without any considerable delay, which ruled out false implication of accused-persons in the case. He further contended that all accused-persons came at the scene of occurrence, armed with lethal weapons, so element of pre-meditation is also present. He contended that all accused-persons were nominated in FIR with overt acts and occurrence was done in a desperate manner. The learned Counsel maintained that natural eye-witnesses were present, who were cited in FIR, and they got recorded their statements in support of the same. He agitated that element of common intention was also present; therefore, all accused-persons were vicariously liable. The learned Counsel argued that accused-persons did not show any motive against eye-witnesses, to implicate them in the case falsely and even no such defense was taken
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during cross-examination. He contended that medical evidence, like postmortem and statement of doctor, is in line with prosecution version, which is strong corroboratory evidence to ocular testimony. The learned Counsel further submitted that recoveries of crime empties along with other articles from the scene of occurrence and crime weapons from accused-persons, are also corroboratory evidence, which was proved through recovery witnesses. The learned Counsel pointed out that statement of investigating officer regarding presence of recovery witnesses, already at the place of recovery, shows questionable conduct of investigation officer, who tried to support accused-persons; therefore, the same cannot be relied upon. He contended that statements of eye-witnesses are very much clear and there is no material contradiction therein; however, some minor discrepancies cannot be considered. He pointed out that not a single witness was confronted with his previous statement recorded under section 161, Cr.P.C, which was requirement under Article 140 of Qanun-eShahadat Order, and if a witness is not confronted with his previous statement and no explanation is sought from the witness, then contradiction cannot be taken into consideration. The learned Counsel contended that motive-of the case was also proyed through ocular evidence, which is in line with prosecution story. The learned Counsel argued that site plan is also corroboratory evidence, which was proved by prosecution. He contended that it is case of direct evidence; therefore, site plan and other documentary evidence, cannot be given preference on evidence of eyewitnesses. The learned Counsel submitted that no valid reasons were given by the trial Court for acquittal of other accused persons; hence, judgment of the trial Court is not sustainable. The learned Counsel pointed out that judgment of the trial Court is completely silent about not awarding death sentence as 'Qisas', to principal accused, Nadeem Iqbal, whereas, in cases where proof of Qatl-i-amd liable to 'Qisas', as required under section 304, A.P.C, is not available, the accused are liable to be convictedand sentenced under section 302(b), A.P.C., however, in the instant case, eye-witnesses were found 'Aadil' during purgation and prosecution fully proved its case for awarding sentence of death as 'Qisas', but the trial Court failed to consider this aspect of the case and wrongly awarded death sentence as 'Tazir'. instead of death as 'Qisas'. He submitted that although report of Forensic Science Laboratory Punjab, Lahore, the letter written by Director FSL Punjab to Superintendent of Police District, Mirpur, the report of Chemical Examiner Punjab, Lahore, and the report of Serologist, were not exhibited; however, the same can be considered in case of circumstantial evidence, whereas in the instant case direct evidence is available, which will prevail. He further submitted that site plan is not vital piece of evidence in cases of direct evidence. The learned Counsel pointed out that evidence of related eye-witnesses cannot be ignored until and unless enmity of witnesses with accused is proved and they are natural witnesses. The learned Counsel 'contended that accused-persons were not strangers; hence, their identification was not doubtful, especially so when Ramzan P.W, deposed in his supplementary statement recorded on 13.09.2006, that at the time of occurrence, light was on through Generator power source and other P.Ws. narrated details of occurrence; therefore, argument of the learned Counsel for accused-persons upon source of light is futile. The learned Counsel contended that place of occurrence is the same, as alleged by prosecution, which4actum is supported from site plan. The learned Counsel contended that from the style of cross-examination, firing at the spot is admitted. He further argued. that no recovery memo of the pieces of bullet was prepared. The learned Counsel further submitted that sizes of injuries could be different, as deceased was fired from different points by accused-persons. He contended that blunt injuries could be caused due to fall down of deceased. The learned Counsel submitted that prosecution established its case against accused-persons beyond reasonable shadow of doubt; therefore, by accepting complainant's appeal, all accused-persons may be awarded death as 'Qisas', who were vicariously liable for death of Muhammad Yaseen, deceased. He finally submitted for dismissal of cross appeal, filed by convict-appellant, Nadeem Iqbal, and placed reliance upon
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the following authorities:- I. PLD 1983 SC 211. II. PLD 1996 SC 122. III. 1996 M LD 1681. IV. 1996 PCr.LJ 1522. V. 1997 SCM R 1537. VI. 1997 PCr.LJ (SC (AJ&K)) 865. VII. 1998 SCR 330. VIII. PLD 2001 SC 333. IX. 2001 PCr.LJ (SC (AJ&K) X. 2002 CLC 749 XI. PLD 2001 SC 107. XII. PLD 2002 SC 558. XIII. 2003 SCM R 647. XIV.2008 SCR 552. XV.2010 SCR 75. XVI. 2014 SCR 821. XVII2015 SCR 147. XVIII. 2015 SCR 1007 XIX. 2017 PCr.LJ 649. XX.2016 SCR 373. 8. Raja Sohail Shamim, the learned Assistant Advocate General, appearing on behalf of State, fully owned and supported arguments of the learned Counsel for complainant. He. placed reliance upon PLD 1996 SC 122 and submitted for awarding death penalty to all the accused-persons in accordance with law. 9. We have given our due consideration to the arguments addressed at Bar by the learned Advocates for parties and, gone through the record of the case with utmost care. 10. The prosecution case, as per FIR lodged by Muhammad Ramzan, complainant, is that he and Muhammad Haneef, accused, are neighbourer and his house is situated in front of Muhammad Haneef's house. On 10.08.2006, complainant's wife was sitting in courtyard of her house, when daughters of Muhammad Haneef and Miskeen, accused-persons, standing on the roof top of their house, hurled abuses. Thereupon, complainant, in the evening of 11th August, 2006, at about 6:30 p.m., called for Muhammad Haneef, on the gate in order to , tell him about abuses, meanwhile, Muhammad Haneef's wife Mst. Nasreen, also arrived there, who at once started hurling abuses. Upon this, complainant asked Muhammad Haneef, to forbid his wife; however, she threatening him went inside the house, whereas complainant and Muhammad Haneef, accused, also went towards their houses. Thereafter, complainant along with his brother Muhammad Yaseen, Adnan (son) and Asif, sat on cots in courtyard of the house, meanwhile, at about 8:30 p.m., they heard some sound of stones striking on main gate. On hearing sound, Muhammad Yaseen, Adnan, Asif and complainant went at the gate and as soon as Muhammad Yaseen, opened gate, accused (i) Nadeem, (ii) Muhammad Haneef, (iii) Miskeen, were found armed with pistols, whereas (iv) Waseem, was armed with Kalashnikov like weapon, who at once started firing upon Muhammad Yaseen, due to which, he received two bullet injuries on chest, by the hands of Nadeem, accused, and bullets injuries on left side of his throat and shoulder, by the firing of Muhammad Haneef, accused, whereas two bullet hit on his right thigh by the firing of Miskeen, who receiving serious injuries fell down and accused-persons fled away. Besides complainant, the occurrence was witnessed by Adnan, Asif and many other people. Muhammad Yaseen, victim, was being brought to Hospital, who succumbed to the injuries on the way.
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11. The prosecution produced 12 witnesses, out of 15, in support of its case. There are three eye- witnesses in the instant case, namely, Muhammad Ramzan, complainant, (P.W.1), Adnan Ramzan (P. W.2) and Muhammad Asif (P. W.3). The statements of the aforesaid eye-witnesses were recorded by the trial Court on 16.12.2006, 26.12.2006 and 09.01.2007, respectively, which were sufficiently reproduced by the trial Court in its judgment; however, we have minutely gone through the evidence of the aforesaid eyewitnesses. They deposed on the point of firing attributed to accused-persons that on 11.08.2006, they along with Muhammad Yaseen, deceased, were sitting in the courtyard of Muhammad Ramzan and were talking, meanwhile, electricity went off and Adnan started Generator. They again sat to gossip, meanwhile, at about 8:30 p.m., they heard some sound of stone striking on main gate, thereupon, Muhammad Yaseen, deceased, went at the gate and they followed him. They saw in light of bulb that as soon as Muhammad Yaseen, opened gate, accused (i) Nadeem, (ii) Muhammad Haneef, (iii) Miskeen, were found armed with pistols, whereas (iv) Waseem, was armed with Kalashnikov like weapon, who at once started firing upon Muhammad Yaseen, due to which, he received two bullet injuries on chest, by the hands of Nadeem, accused, and two bullet injuries on left side of his throat and shoulder, by the firing of Muhammad Haneef, accused, whereas two bullets hit on his right thigh by the firing of Miskeen, who receiving serious injuries fell down and accused-persons fled away. 12. The learned Counsel for accused-persons stressed on the point that as per prosecution story, incident took place at about 8:30 p.m., however, prosecution neither disclosed the source of light in FIR nor in statements of P.Ws. recorded under section 161, Cr.P.C. and it is admitted by prosecution witnesses that at the time of occurrence, due to power load shedding, electricity was off; hence, identification of accused-persons was a serious question mark for prosecution; however, later on, when at the stage of bail of Muhammad Waseem, the point of existence of light was raised, on 16.12.2006, then prosecution made a vital improvement in statements that at the time of occurrence a Generator was…
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