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Petitioner: Zafran Mehmood VS Respondent: The State
Court Name: Lahore High Court Judge(s): Raja Shahid Mehmood Abbasi, Sadiq Mahmud Khurram Title: Zafran Mehmood vs The State Case No.: Criminal Appeal No. 382-J and Murder Reference No. 8 of 2018 Date of Judgment:2020-11-03 Reported As: 2021 P Cr. L J 857 Result: Order accordingly
JUDGMENT
JUDGMENT SADIQ MAHMUD KHURRAM, J.---Zafran Mehmood son of Muhammad Mehboob (convict) was tried by the learned Additional Sessions Judge, Rawalpindi in the case FIR No. 298 of 2017 dated 24.09.2017 registered at Police Station Kallar Syedan, District Rawalpindi in respect of offences under section 302, P.P.C. for committing the Qatl-i-amd of Kamran Mehmood son of Muhammad Mehboob (deceased). The learned trial court vide judgment dated 13.01.2018, convicted Zafran Mehmood son of Muhammad Mehboob (convict) and sentenced him as infra: Zafran Mehmood son of Muhammad Mehboob: Death under section 302(b), P.P.C. as Tazir for committing Qatl-i-amd of Kamran Mehmood son of Muhammad Mehboob (deceased) and directed to pay Rs.200,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of Kamran Mehmood son of Muha mmad Mehboob (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. 2. Feeling aggrieved, Zafran Mehmood son of Muhammad Mehboob (convict) lodged Criminal Appeal No.3824 of 2018 against his conviction and sentence through jail. 'The learned trial court submitted Murder Reference No.08 of 2018 under section 374, Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Zafran Mehmood son of Muhammad Mehboob. We intend to dispose of the Criminal Appeal No. 382J of 2018 and Murder Reference No.08 of 2018 through this single judgment. 3. Precisely , the necessary facts of the prosecution case, as narrated by the witness namely Sajida Shaheen (PW- 6) in her statement before the learned trial court are as under:- "Stated that my marriage was solemnized with Kamran Mehmood (deceased) about 14/15 years ago at Dhoke Sangral, Dakhli Dodheli Tehsil Kallar Syed an. Out of this wedlock no issue was born. My parents have already died and my husband (deceased) was working as Labourer , I along with my deceased husband were living at my
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parents house at Nara and oftenly we come and reside at the house of my father in law. My deceased husband's younger brother Zafran Mehmood intended to occupy his house. On 23.9.2017, at evening time we received information that my deceased husband's brother (accused) occupied at our house after breaking locks. After receiving the said information 1 along with husband Kamran Mehmood (decea sed), Aqib Hussain son of Lal Hussain and Adil Hussain son of Ahmed Hussain arrived at the disputed house at evening time and on the same night at about 11:30 p.m. we were sitting on the cots and were talking each other , meanwhile, accused Zafran Mehmood became angry and abused us and brought .12 bore rifle from his residential room and said that today I will teach the lesson to Kamran Hussain for claiming the share of the house. Zafran Mehmood accused (present in the Court) made straight fire with his .12 bore rifle which hit him on front right side of his chest and my husband (deceased) fell down and succumbed to the injuries. The occurrence was seen by me, Aqib Hussain and Adil Hussain PWs. The motive behind the occurrence is a dispute on property (house). I along with other respectable of the locality brought the dead-body of my deceased husband to THO Hospital Kallar Syedan and I.O. recorded my oral statement and I.O. read it upon Exh.PD which was signed by me with thumb impression Exh. PD/1. The postmortem was conducted by that doctor at THO Hospital, Kallar Syedan." 4. After the formal investigation of the case report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court wherein the appellant namely Zafran Mehmood son of Muhammad Mehboob was sent to face trial. The learned trial court framed the charge against the accused on 01.11.2017, to which the accused pleaded not guilty and claimed trial. 5. The prosecution in order to prove its case got statements of as many as ten witnesses recorded. The ocular account of the case was furnished by Sajida Shaheen (PW-6) and Adil Hussain (PW-7).. Asad Mehmood 1740/C (PW-2) stated that on 24.09.2017 he has escorted the dead body of the deceased for its post mortem examination and also received the last worn clothes of the deceased from the Medical Officer. Karamat Ali S.I. (PW-3) recorded the formal FIR (Exh. PE) on 24.09.2017. Jamil Hussain Shah 4321/C (PW-4) stated that on 24.09.2017 Anwar Javed S.I. (PW-10) handed over to him two sealed parcels and one sealed Jar and on 06.10.2017 Anwar Javed, S.I. (PW-10) handed over to him a sealed parcel said to contain gun .12-bore which on 09.10.2017 he handed over all the parcels said to contain empty , blood stained cotton and the gun .12-bore to Anwar Javed, S.I. (PW-10) for their onward transmission to the office of Punjab Forensic Science Agency , Lahore. Mehmood Ahmad Shahzad draftsman (PW-5) prepared the scaled site plan of the place of occurrence (Exh. PF). Shaban Mehmood (PW-8) and Amjad Hussain (PW-9) identified the dead body of the deceased. Anwar Javed S.I. (PW-10) investigated the case from 24.09.2017 till 11.10.2017, arrested the appellant on 03.10.2017, and detailed the facts of the investigation as conducted by him in his statement before the learned trial court. 6. The prosecution got Dr. Muhammad Anwar (PW-1) examined who, on 24.09.20 17, was posted as CMO at THQ Hospital, Kallar Kahar and on the same day conducted the postmortem examinat ion of the dead body of Kamran Mehmood son of Muhammad Mehboob (deceased). Dr. Muhammad Anwar (PW-1), on examining the dead body of Kamran Mehmood son of Muhammad Mehboob (deceased) observed as under: "DESCRIPTION OF INJURIES (Including findings on dissection 1. Multiple wound complex of firearm injury , 12 x 8 cm over right side of chest just above the nipple (Right) and 08 cm below the clavicle (Right) having 06 small perforation/laceration average size 1 x 1 cm and one perforation/laceration of 3 x 3 cm size. Margin inverted. No burning/blackening noted. 2. Lacerated wound 1 x 1 cm back of lumber regim (sic) 06 cm from vertebral column and about 10 cm above the iliac-crest. Upon dissection 09 metallic pallets recovered from the area of 10 x 08 cm located superficially in skin adjoined the wound. .................................................................................................... OPINION: In my opinion death occurred due to cardio pulmonary arrest caused by hypovalumic (sic) shock (Excessive hemorrhage both internal and external caused by FAI (firearm injury) in chest. That injuries are antemartum (sic) in nature and sufficient to cause death in ordinary course of nature. Probable time that elapsed:
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Time between injury and death: W ithin minutes. T ime between death and postmortem: 08-10 hours." 7. On 13.01.2018, the learned ADPP gave up PW Aqib Hussain as being unnecessary and closed the prosecution evidence after tendering in evidence the report of Punjab Forensic Science Agency , Lahore regarding the analysis of the gun with the empty (Exh.PP) and the report of Punjab Forensic Science Agency , Lahore regarding the examination of the pieces of blood-stained cotton (Exh.PQ). 8. After the closure of prosecution evidence, the learned trial court examined the appellant namely Zafran Mehmood son of Muhammad Mehboob under section 342, Cr.P.C. and in answer to the question why this case against you and why the PWs have depo sed against you, he replied that he had been involved in the case falsely and was innocent. The appellant namely Zafran Mehmood son of Muhammad Mehboob opted not to get himself examined under section 340(2), Cr .P.C. and did not adduce any evidence in his defence. 9. On the conclusion of the trial, the learned Additional Sessions Judge, Rawalpindi convicted and sentenced the appellant as referred to above. 10. The contention of the learned counsel for the appellant precisely is that the 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 appellant further contended that the story of the prosecution mentioned in the statements of the witnesses, on the face of it, is highly improbable. Learned counsel for the appellant further contended that the statements of the prosecution witnesses were not worthy of any reliance. The learned counsel for the appellant 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 appellant also argued that the appellant had been involved in the occurrence due to enmity . The learned counsel for the appellant 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 contended that the prosecution has proved its case beyond the shadow of a doubt by producing independent witnesses. The learned Deputy Prosecutor General further argued that the deceased died as a result of injuries suffered at the hands of the appellant. The learned Deputy Prosecutor General further contended that the medical evidence also corro borated the statements of Sajida Shaheen (PW-6) and Adil Hussain (PW-7).The learned Deputy Prosecutor General further argued that the recovery from the appellant also corroborated the ocular account. The learned Deputy Prosecutor General 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 appellant, the learned Deputy Prosecutor General, awl with their able assistance perused the record and evidence recorded during the trial. 13. The most vital point in the case attracting our attention is the fact that the oral statement (Exh. PD) of Sajida Shaheen (PW-6) was recorded by Anwar Javed S.I. (PW-10), the Investigating Officer of the case, at the hospital at 5.30 a.m. on 24.09.2017 whereas the occurrence had taken place on 23.09.2017 at 11.30 p.m. The oral statement (Exh. PD) was hence recorded after six hours of the occurrence and that too at the hospital and not at the police station. No reason, much less plausible, has been given by the prosecution at any stage for such deferral in reporting the matter to the police. In this case, the ocular account furnished, is suffering from legal and factual infirmities and does not appeal to a prudent mind, much less legal one because according to the prosecution case as a result of firing made at the place of occurrence Kamran Mehmood son of Muhammad Mehboob (deceased) died at the place of occurrence and the same fact was also confirmed by the witnesses, however the witnesses never reported the matter to the police for as many as six hours. Moreover , none of the prosecution witnesses including Sajida Shaheen (PW-6) Adil Hussain (PW-7), Shaban Mehmood (PW-8) and Amjad Hussain (PW-9) ever proceeded to the police station to report the matter and it was Anwar Javed S.I. (PW-10), the Investigating Officer of the case, who on his own reached the hospital and there recorded the oral statement (Exh. PD) of Sajida Shaheen (PW-6). Had Anwar Javed S.I. (PW-10), the Investigating Officer of the case, not proeeded to the hospital, the matter would have remained unreported as none of the prosecution witnesses namely Sajida Shaheen (PW-6), Adil Hussain (PW-7), Shaban Mehmood (PW-8) and Amjad Hussain (PW-9) admittedly made any
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endeavor in this regard. The police station was at a distance of only 6.5 miles still no effort was made to report the matter to the police. Anwar Javed S.I. (PW-10), the Investigating Officer of the case, stated during cross- examination that it took only 15/20 minutes to reach at the police station from the place of occurrence. Adil Hussain (PW-7) during cross-examination stated that they had reached the hospital at 2.00 a.m., whereas the police arrived at the hospital at 6.00 a.m., however still the witnesses did not report the matter to the police. Anwar Javed S.I. (PW-10), the Investigating Officer of the case, stated that he reached the hospital at 4.10 a.m. and then recorded the oral statement (Exh. PD) of Sajida Shaheen (PW-6). The oral statement (Exh. PD) of Sajida Shaheen (PW-6) was recorded at 5.30 a.m. on 24.09.2017 meaning thereby that even after the arrival of Anwar Javed S.I. (PW-10), the Investigating Officer of the case at the hospital, it took another hour and twenty minutes to record the oral statement (Exh. PD). This aspect of the prosecution case has left no doubt in our minds that Sajida Shaheen (PW- 6) and Adil Hussain (PW-7) had not witnessed the occurrence and Sajida Shaheen (PW-6) and Adil Hussain (PW- 7) were called from their homes to become witnesses. It is the prosecution case itself that the complainant waited for the arrival of the police at the hospital, not taking a single step to report the matter herself. There must be some plausible reason for this failure of the witnesses namely Sajida Shaheen (PW-6), Adil Hussain (PW-7), Shaban Mehmood (PW-8) and Amjad Hussain (PW-9) not to report the natter to the police promptly , however none is available and hence, doubts have arisen regarding the very presence of the witnesses namely Sajida Shaheen (PW-6) and Adil Hussain (PW-7) at the place of occurrence, at the time of occurrence. An inference against the prosecution witnesses namely Sajida Shaheen (PW-6) and Adil Hussain (PW-7) has to be drawn in this regard. Guidance is sought from the principle enunciated by the august Supreme Court of Pakistan in the case of "G.M.NIAZ v . The State " (2018 SCMR 506 ) the august Supreme Court of Pakistan was pleased to hold as under: "An FIR in respect of the alleged occurrence had been lodged after about seven hours and forty minutes which by itself was a circumstance doubting the claimed availability of the above mentioned eye-witnesses with the deceased at the time of occurrence." Reliance is also placed on the case of Muhammad Ashraf Javeed and another v. Muhammad Umar and others (2017 SCMR 199 ) wherein the august Supreme Court of Pakistan was pleased to hold as under: "The hospital is closely situated to the Police Station but neither the complainant nor PWs took a little pain to report the matter , nor the staff of the hospital including the treating doctor took initiative." Guidance is also sought from the principle enunciated by the august Supreme Court of Pakistan in the case of Zafar v.The State and others (2018 SCMR 326) where the august Supreme Court of Pakistan was pleased to hold as under:- "It has been observed by us that the occurrence in this case as per prosecution took place on 03.09.1999 at 3.00 a.m. (later half of night) and the matter was reported to the police on the same day at 8.30 a.m. i.e. after five hours and thirty minutes of the occurrence. The distance between the place of occurrence and the police station is 09 miles. The postmortem on the dead body of deceased was conducted on the same day at 2.00 p.m. i.e. after 11 hours of the occurrence. No explanation whatsoever has been given by the complainant Shahadat Ali (PW5) and Umer Daraz (PW6) in the FIR or while appearing before the learned trial Court qua the delay ill lodging the FIR or for that matter the belated postmortem of the deceased." Furthermore, it can be inferred from the circumstances and the statements of the witnesses that it was only after consultation and concert that the oral statement (Exh. PD) of the complainant, namely Sajida Shaheen (PW-6) was prepared and the same was neither prompt nor spontaneous, hence worthy of the no reliance. 14. The whole prosecution case orbits around the statements of Sajida Shaheen (PW-6) and Adil Hussain (PW-7). The relationship of the said witnesses with the deceased is on record. Kamran Mehmood, deceased, was the husband of Sajida Shaheen (PW-6). Adil Hussain (PW-7) was related to Sajida Shaheen (PW-6) and was admitted to be her maternal nephew . The other witness namely Aqib Hussain (given up witness) was also admitted to be related to Sajida Shaheen (PW-6) being her paternal cousin. Sajida Shaheen (PW-6), Adil Hussain (PW-7) and Aqib Hussain (given up witness) were admittedly not the residents of the place of occurrence. Sajida Shaheen (PW-6) stated that she and her husband were residing at the house of her parents situated at village Nara, Tehsil Kahuta whereas the occurrence took place in the ancestral house of the deceased situated at Dhoke Sangral,
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Tehsil Kallar Syedan. According to Sajida Shaheen (PW-6) she and her husband proceeded to village Nara Tehsil Kallar Syedan after they had received a phone call that the appellant had occupied their house after breaking the locks. During cross-examination Sajida Shaheen (PW -6) stated as under:- "The telephonic call was made on cell No of my deceased husband by his sister and brother in-law . 1 do not know whether sister and brother in-law of deceased appeared before the I.O. The failure of the prosecution to name and produce the sister and the brother in-law of the deceased who had allegedly called and informed the deceas ed regarding the taking over of his property by the appellant has resulted in failure of the prosecution witnesses to prove the reason for their presence at the place of occurrence, at the time of occurrence. The above noted portion of cross-examination clearly establishes that both the witnesses namely Sajida Shaheen (PW-6) and Adil Hussain (PW-7) miserably failed to provide any reason for their presence at the place of occurrence, at the time of occurrence . It is an admitted fact that none of the prosecution witnesses namely Sajida Shaheen (PW-6), Adil Hussain (PW-7) and Aqib Hussain (given up witness) had their residences or their houses at the place of occurrence. They were all "chance witnesses". We have also perused the scaled site plan of the place of occurrence (Exh.PF) as prepared by Muhammad Ahmad Shahzad, draftsman (PW-5) and the rough site plan (Exh.PG) as prepared by Anwar Javed S.I. (PW-10), the Investigating Officer of the case, and find that no house nor any temporary place of residence belonging to Sajida Shaheen (PW-6), Adil Hussain (PW-7) and Aqib Hussain (given up witness) is marked in the same. We have also noted that the alleged eye-witnesses namely Sajida Shaheen (PW-6) and Adil Hussain (PW-7) were not mentioned in column No.4 or page 4 of the inquest report (Exh. PC) as being the ones who were present at the time of preparation of the said inquest report (Exh. PC) by the investigating officer. These witne sses were also not the ones who had identified the dead body of the deceased at the time of the postmortem report. We have also noted that Sajida Shaheen (PW-6) and Adil Hussain (PW-7) claimed that after the occurrence they brought the dead body of the deceased to the hospital. In such a scenario the clothes of both Sajida Shaheen (PW-6) and Adil Hussain (PW-7) should have been smeared with blood however Anwar Javed S.I. (PW-10), the Investigating Officer of the case, did not take any such blood stained clothes of the witnesses in possession. Anwar Javed, SI (PW-10), the Investigating Officer of the case, who otherwise showed extraordinary interest in the case, did not take the clothes of the eye-witnesses, which were stained with blood, into possession and if these were sent to the Punjab Forensic Science Agency , Lahore for examination and grouping with that of the blood stained clothes of the deceased, the same would have provided the strongest corroboration to the testimony of the two eye-witnesses, namely Sajida Shaheen (PW-6) and Adil Hussain (PW-7). This omission strikes at the roots of the case of the prosecution and lays bare the untruthful and false claim of the said witnesses to have been present at the place of occurrenc e at the time of occurrence. 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 place of 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 complainant (PW3), Ghulam Farid (PW-6) and Manzoor Ahmed (PW-7) 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 eyewitnesses were, thus, chance witnesses and not worthy of reliance. Relianc e 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." 15. We have also noted that no source of light, which could have been available at the place of occurrence at the time of occurrence allowing the witnesses to identify the assailants, was taken into possession by the Investigating
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Officer namely Anwar Javed S.I. (PW-10), despite the fact that as per prosecution's own claim the occurrence had taken place at about 11.30 p.m. on 23.09. 2017. Even according to the oral statement (Exh.PD) no light source was mentioned in which both the eye-witnesses namely Sajida Shaheen (PW-6) and Adil Hussain (PW-7) had witnessed the occurrence and identified the accused. Furthermore, Anwar Javed S.I. (PW-10), the Investigating Officer of the case, during his investigation, did not take into possession any article so as to prove that sufficient light was present at the place of occurrence at the time of occurrence for the witnesses to make such a positive identity of the assailant nor the witnesses produced any such source of light during the investigation of the case or during the trial. As mentioned above, no such electric light bulb was taken into possession by the Investigating Officer in the light of which the witnesses had allegedly witnessed the occurrence. According to the prosecution evidence, Anwar Javed, S.I. (PW-l0), the Investigating Officer of the case, visited the place of occurrence after the occurrence at about 6.30 a.m. on 24.09.2017 but the electric light bulb, which was allegedly available and lighted at the place of occurrence, at the time of occurrence, was not taken into possession at the spot by the Investigating Officer along with other recoveries though there was no occasion for the said electric bulb to have not been present at the place of occurrence or it being not produced by the witnesses before the Investigating Officer during the investigation of the case. The failure of Anwar Javed, S.I. (PW-10), the Investigating Officer to take into possession the electric light bulb allegedly present at the place of occurrence and lighted at the time of occurrence proves that none was available and only an invented and false claim of such and electric light bulb being available was made by the said witnesses. The prosecution failed to establish the fact of such availabili ty of light source and in absence of their ability to do so, we cannot presume the existence of such a light source. The absence of any light source has put the whole prosecution case in dark. Reliance is placed on the case of "Hameed Gul v. Tahir and 2 others " (2006 SCMR 1628 ) wherein the august Supreme Court of Pakistan observed as under:- "Next is the identification of the accused on the spot. The torch in the light of which the accused were identified, was produced before the Investigating Officer sixteen days after the occurren ce. The one Haid Akbar who produced the same before he Investigating Officer was never produced at the trial and hence there is no satisfactory evidence that the torch produced in the given circumstances was the same, available…
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