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Petitioner: TARIQ HAMEED VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): M. A. Zafar, Hasnat Ahmad Khan Title: TARIQ HAMEED vs THE STATE Case No.: Criminal Appeal No,1789 of 2002 Date of Judgment:2008-04-02 Reported As: 2008 YLR 1367 Result: Order accordingly
JUDGMENT
JUDGMENT HASNAT AHMAD KHAN, J.--Tariq Hameed, appellant was tried by a learned Additional Sessions Judge, Lahore, in case F.I.R. No,113/2000, dated 24-4-2000 under section 302, P.P.C. Registered with Police Station Garden Town, Lahore. He was convicted and sentenced to death under section 302(b), P.P.C. With a direction to pay a sum of Rs,1,00,000 as a compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased, or in default of payment thereof, he was ordered to undergo six months' S.I., vide his judgment, dated 17-10-2002. 2. Feeling dissatisfied with the decision of the learned trial Court, the appellant has challenged his conviction and sentence through the instant Criminal Appeal No,1789 of 2002, while the trial Court has made a reference (M.R. No,770/2002) for confirmation, or otherwise, of the death sentence, awarded to the appellant. This single judgment will govern both the matters. 3. Succinctly, the prosecution's story, as disclosed by the complainant Muhammad Shakoor son of Fateh Muhammad, (father of the deceased), in his complaint (Exh.P.A.), which was reduced into formal F.I.R. (Exh.P.A./1), was to the effect that, on 24-4-2000 at about 11-15 a.m. The complainant, along with his cousin, Mian Mukhtar Ahmed (a visitor), his two sons, namely Abid Shakoor (deceased) and Muhammad Saleem, was present in his house, when they heard sound of call bell. Abid Shakoor (deceased) came down to open the door. He saw that his friend Tariq Hameed (Appellant) was standing at the gate. Abid Shakoor took him inside and made him sit in the drawing room. After sometime, Abid Shakoor went to fetch water to serve aim (appellant). All of a sudden, the cot iplainant and others heard a noise. The complainant, his son Muhammad Saleem (P.W.3) and Mian Mukhtar Ahmed (given up P.W.) ran towards the drawing room. They saw that Tariq Hameed (appellant) was giving machete/Chhuri blows constantly to Abid Shakoor due to
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which he sustained several injuries on his body. He also received a deep wound on left side of his chest near his heart. All the three witnesses, statedly, tried to apprehend the appellant, who brandished his machete/ Chhuri and exhorted that if someone came near him, he would also be killed and succeeded in decamping from the scene. The injured was rushed to the hospital by the complainant and P.Ws. But he succumbed to his injuries before reaching the hospital. ' The motivating factor behind the occurrence was stated to be that Abid Shakoor (deceased) had lent some amount to the appellant about 5/6 months before the occurrence; that Abid Shakoor had been insisting for the return of the same amount; that the deceased and the appellant had quarrelled with each other, over the said issue, few days, before the occurrence; that the complainant was also informed about the said incident; that the appellant felt his insult for that and to take revenge thereof, severely injured the deceased and showed good pair of heals. 4. Munir Ahmad, S.-I./I.O. After inspecting the dead body of Abid Shakoor, prepared an injury statement, an inquest report (Exh.P.E.), and sent the dead body for post-mortem examination through Abdul Rauf, C-3348 and Madad Khan, C-588. He also inspected the place of occurrence, prepared site plan (Exh.P.K.), took into possession blood vide recovery memo. (Exh.P.D.), a piece of carpet (P.1), bloodstained Chadar (P.2) vide recovery memo. (Exh.P.B.), sun-glasses (P.5) and string (P.6) vide recovery memo. (Exh.P.C.). He recorded the statement of the witnesses under section 161, Cr.P.C. On 29-4-2000. He arrested the appellant on 5-5-2000 obtained his physical remand and on his pointing out, took into possession Chhuri the weapon of the offence, in the presence of the witnesses, vide recovery memo. (Exh.P.F.). He also took into possession blood-stained plants (P.9) and shirt (P.10) on the pointing out of the accused in presence of the witnesses. After completing the investigation, he challaned the accused-appellant under section 173, Cr.P.C. To Court. 5. The appellant was indicted by the trial Court on the charge of murder of Abid Shakoor (slain). During the trial, the prosecution, in support of its case, produced as many as 10 witnesses. 6. Muhammad Shakoor complainant entered into the witness-box as P. W.1 and confirmed the contents of complaint (Exh.P.A.), furnished ocular account with some improvements and elaborated the motive. Muhammad Aslam, HC-1416 (P:W.2), Abdul Rauf, C-3348 (P.W.6), Anees Ahmed, S.-I. (P.W.9) and Syed Younas Bukhari Draftsman (P.W.10) are formal witnesses and need not be discussed over here. Muhammad Saleem, who is another eye-witness, turned up as P.W.3 and attempted to corroborate the version of the complainant. He also deposed about inspection of the spot by the police, collection of blood-stained piece of carpet (P.1), Chadar (P.2), vide recovery memo. (Exh.P.B.), tumbler (P.3), handkerchief (P.4), sun glasses (P.5) and a plastic tape (P.6) vide .Recovery memo. (Exh.P.C.), bloodstained cotton vide recovery memo. (Exh.P.D.), which were attested by him. He also attested the inquest report and identified the dead body of the deceased at the time of its post-mortem examination. In cross-examination he negated the suggestion of defence counsel with regard to his presence at the time of occurrence. He also negated the suggestion that the deceased forcibly wanted to commit sodomy with the accused on the fateful day. Rashid Aziz, who is a recovery witness, appeared as P.W.4 and deposed that on 5-5-2000 the accused in his presence, led to the recovery of blood-stained Chhuri (P.8), bloodstained trousers (P.9), blood-stained shirt (P.10) from his own house, which were taken into possession by the I.O. Vide recovery memo. (Exh.P.G.), which was also attested by him. During his cross-examination, he negated the suggestion of defence counsel that machete/Chhuri had been recovered from a vacant plot situated in front of the house of the complainant. Muhammad Imran came forward as P.W.5 and deposed that 15 days prior to the occurrence, he was present in the house of the deceased, when the appellant came there and hot words were exchanged between the deceased and the appellant. He also stated that the deceased had informed him about the cause of that incident. However, during the cross-examination he admitted that he was a resident of
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Khurrianwala, District Faisalabad, which was located at a distance of 100/150 kilometers away from the house of the complainant. 7. Dr. Tahir Iqbal, who had conducted the post-mortem examination on the dead body of Abid Shakoor, 28/29, appeared as P.W.7 and gave the detail of the injuries on the dead body of the deceased as under:--- (1) An incised wound, vertically placed 2 c.m. x 1 c.m. x bone exposed on left side of chin, -.5 c.m. Below lower lip, 1.5 c.m. Lateral to midline. (2) Nasal septum and right ala of nose were cut into two pieces, each completely. (3) Incised wound 3 c.m. x 0.2 c.m. x muscle deep on right side of neck, 6 c.m. Below right ear and 6 c.m. Lateral to midline. (4) Incised wound 6 c.m. x 0.2 c.m. x muscle deep on right cheek, 3 c.m. Below right eye. (5) Incised wound 2 c.m. x 0.2 c.m. x muscle deep on right eye brow. (6) Incised wound 4 c.m. x 2 c.m. x muscle deep on lateral aspect of right upper arm, 13 c.m. Below the tip of right shoulder. (7) Incised wound 5 c.m. x 2 c.m. x bone exposed on the back of lower part of right upper arm and right elbow joint. (8) Incised wound 2 c.m. x 0.3 c.m. x muscle deep on medial aspect of right forearm, 2 c.m. Proximal to right wrist joint. (9) Incised wound 3 c.m. x .2 c.m. On medial aspect of right hand, 2 c.m. Distal to right wrist joint. (10) Incised wound 2 c.m. x 0.2 c.m. x skin deep on back of right hand, 1 c.m. Proximal to 5th metacarpophalangeal joint. (11) Incised wound 1 c.m. x .5 c.m. x muscle deep on palmar aspect of distal phalanx of right index finger. (12) Incised wound 2 c.m. x 0.5 c.m. x bone exposed on anteromedical aspect of distal interphalangeal joint of right middle finger. (13) Incised wound 1.5 c.m. x 0.5 c.m. x muscle deep on medial aspect of distal kphalanx of right ring finger. (14) Incised wound 8 c.m. x 3 c.m. x bone exposed on lateroposterior aspect of left upper arm, 4 c.m. Below tip of right shoulder. (15) Incised wound 4 c.m. x 2 c.m. x bone exposed on medial aspect of right fore-arm 7 c.m. Above left wrist. (16) Incised wound 4 c.m. x 2 c.m. x muscle deep on anterior aspect of left fore-arm, 11 c.m. Below left elbow. (17) Incised wound 3.5 x 1.5 c.m. x bone exposed on lateral part of back of left hand, 5 c.m. Below left wrist. (18) Incised wound 4 c.m. x 1.5 c.m. Bone exposed on lateral part of palmar aspect of left hind, 4 c.m. Below left wrist. (19) Incised wound 2 c.m. x 2 c.m. x bone cut on palmar aspect of proximal phalanx of left ring finger. (20) Incised wound 4 c.m. x 1 c.m. x bone exposed on palmar aspect of left hand, 1 c.m. Proximal to index and middle finger. (21) A stab wound 3 c.m. x 2 c.m. x cavity deep on front of left side of chest, 3 c.m. Lateral to left nipple at 4'o clock position. (22) A stab wound 4 c.m. x 2 c.m. x cavity deep on the front of right side of chest, 7 c.m. Above right nipple at 11'o clock position. (23) A stab wound 3 c.m. x 1.5 c.m. Cavity deep on front of right side of chest, 10 c.m. Inferomedial to right nipple at 5; '0 clock position.
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(24) An incised wound 3.5 c.m. x 2 c.m. x muscle and bone deep on front of left side of chest, 9 c.m. Superolaterial to umbilicus at l'o clock position. (25) Incised wound 2 c.m. x 1 c.m. x muscle deep on front of left side of abdomen, 3 c.m. Inferolateral to umbilicus at 5'o clock position. (26) Incised wound 6 c.m. x 2.5 c.m. x bone exposed (vertebra) on lower part of back of right side of trunk, 2 c.m. Lateral to midline and 6 c.m. Above right iliac crest. (27) Incised wound 6 c.m. x 3 c.m. x muscle deep on lateral aspect of right thigh, 12 c.m. Above right knee. (28) Incised wound 2 c.m. x 0.5 c.m. x patella exposed on right knee joint. ' In his opinion, the cause of death in this case was damage to the heart, left lung, right lung and intercostals vessels and liver and intercostals vessels under injuries Nos.21, 22 and 23 respectively leading to severe haemorrhage and shock. These three injuries, according to him, were sufficient to cause death individually as well as collectively in ordinary course of nature. 8. Munir Ahmed, S.-I./S.H.O., appeared as P.W.9 and provided the detail of the investigation conducted by him as well as the arrest of the appellant and recovery of blood-stained Chhuri and other articles on his pointing out. 9. The learned D.D.A. Gave up Messrs Mukhtar Ahmad, Muhammad Shahbaz and Irfan being won over, while Madad Khan 582 and Ehsan Ahmed, P.Ws., were given up by him as being unnecessary. Thereafter, he closed the prosecution's evidence, after tendering in evidence the reports of Chemical Examiner (Exh.P.M. And Exh.P.N.) and the reports of Serologist (Exh.P.M./1) and P.N./1. 10. The statement of the appellant Tariq Hameed, 19, was recorded under section 342, Cr.P.C. In answer to question No,8, as to why the case was registered against him, the appellant replied as under:--- ' "I belong to middle class family. I had read to the extent of matric and during the days of occurrence, I was working as part-time salesman at a cloth shop in Gulberg, Lahore. About 3/4 months earlier the deceased met me at my shop, introduced himself; as a lecturer and offered me to teach about computer at his residence. He took me his house twice before this occurrence and during those visits he showed me naked photographs. On the day of occurrence, he met me at Kalma Chowk. He was on a motorbike and persuaded me to accompany him to his house. Nobody was at home at that time in the drawing room. Some fruits and kitchen knife were lying on the table. The deceased on that date physically attempted to commit sodomy with me on knife point to which I resisted and during this scuffle, I snatched knife from him and caused him few injuries. The deceased, was healthier and stronger than me, attempted to snatch knife from me and I apprehending danger to my life and under the impulse and grave sudden provocation, caused more injuries to him. Nobody else was present on that time. After the incident, I myself went to the police station and surrendered myself and narrated the true incident to the police. P.Ws. Are inimical, interested and related to each other." ' The appellant did not opt to make statement under section 340(2), Cr.P.C. After the conclusion of the trial the learned trial Court convicted and sentenced the appellant as above. 11. In support of this appeal learned counsel for the appellant submitted that the raison d'etre of the occurrence as claimed by the prosecution appears to be economical with the truth; that barring Abid Shakoor (deceased) none of the inhabitants of his house was available at the time of occurrence, and due to said reason he was rushed to the hospital by the inhabitants of Mohallah/locality; that the occurrence was an unwitnessed affair; that both the eye-witnesses--- Abdul Shakoor (P.W. 1) and Muhammad Salim (P .W . 3)--were not present at the time of unfortunate occurrence; that the number of injuries received by Abid Shakoor (deceased) suggests that nobody caused any hindrance to the killer while inflicting dozens of the injuries to him (Abid Shakoor); that had the eye-witnesses, who are father and real brother of the deceased,
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been present at the time of occurrence the killer could not have succeeded to cause so many injuries to Abid Shakoor (deceased); that Mukhtar Ahmadcousin of the complainant, another alleged eye-witness of the occurrence, was given up by the prosecution as being won over, which suggests that said Mukhtar Ahmad, who is closely related to the deceased was not ready to support the false case of the prosecution; that withholding the said material evidence would adversely affect the entire case of the prosecution; that the alleged recovery of blood-stained Chhuri was planted by the Investigating Officer; that while lodging the F.I.R. The prosecution suppressed the true facts inasmuch as the fact that Abid Shakoor (deceased) at the time of occurrence had ventured to commit sodomy with the appellant, a young lad of 19 years, which provoked the appellant to react to save his honour; that the provocation was so serious that the appellant lost his balance of mind and inflicted dozens of injuries to Abid Shakoor (deceased); that after the commission of offence of murder the appellant himself appeared before the police and made clean breast of manner in which the occurrence took place but the police officer dishonestly failed to record his version and deferred his arrest till 5-5-2000; that as the appellant was apprehended on the very day of occurrence and his version had also come to the knowledge of the concerned, therefore, the National Press on the very next day carried the news containing the defence version raised by the appellant; that during the cross-examination the Investigating Officer frankly conceded that during the investigation the appellant had claimed that the deceased had brought him into his house and had attempted to satisfy his sexual lust due to which he (the appellant) murdered Abid Shakoor (deceased); that the defence version being more plausible than the one pleaded by the prosecution, is liable to acceptance and the appellant is entitled to acquittal; that in short the prosecution miserably failed to prove its case against the appellant beyond any shadow of doubt and that the investigation was conducted dishonestly. To augment his arguments the learned counsel for the appellant has placed his reliance on the case of Altaf Hussain and 4 others v. The State PLD 2000 Lah. 216, muhamamd Ilyas v. The State 1981 PCr.LJ 76, Muhammad Yaqoob v. The State PLD 1969 Lah. 548 and The State v. Hamid Ali alias Ahmad Ali 2001 YLR 1410. 12. Conversely, the learned Deputy Prosecutor-General has strenuously and vigorously opposed the appeal. He contends that the prosecution proved its case beyond any reasonable doubt; that the defence version is nothing but a cooked book; that the gory occurrence was reported to the police very promptly; that the ocular evidence is trustworthy; that though both the eye-witnesses are related to the deceased yet they had got no or enmity to falsely implicate the appellant and that the appellant committed murder of Abid Shakoor (deceased) in a very callous and brutal manner, therefore, he does not deserve any leniency in the matter of the sentence. 13. After hearing the arguments, put forth by both the sides ardently and going through the relevant record minutely we have straightaway gathered that it is a case of two versions. According to the prosecution Abid Shakoor (deceased) was done to death in a preplanned manner due to the motive that Abid Shakoor (deceased) was pressing hard for return of loan obtained by the appellant from him. On the other hand the appellant claimed that Abid Shakoor, an unmarried person, 3/4 months prior to the occurrence, introduced himself to the appellant as a lecturer and offered him to teach computer operating at his residence. He further claimed that Abdul Shakoor (deceased) took him (appellant) to his house twice before the occurrence and during the said visits displayed some nude photographs. He further maintained that on the date of occurrence Abid Shakoor. (deceased) met him (appellant) at Kalma Chowk and persuaded him to accompany to his house. He further claimed that when they were sitting in the drawing room, Abid Shakoor (deceased) attempted to commit sodomy with him (appellant) on the knifepoint, and under grave and sudden provocation he inflicted the injuries to Abid Shakoor (deceased) whereafter he (the appellant) surrendered himself before the police.
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14. Now, to reach to the just conclusion of the case we have put both the versions in juxtaposition. While doing so we have thoroughly examined the prosecution evidence to see as to whether the prosecution succeeded in proving its case against the appellant beyond any reasonable doubt. While pulling to pieces the entire prosecution's evidence we have gathered that it comprises ocular evidence, medical evidence, recoveries of bloodstained weapon and the clothes of the appellant and the motive version as set up by the prosecution. 15. Insofar as the medical evidence is concerned, in view of the defence version it has lost its efficacy because there is no denying the fact that Abid Shakoor (deceased) was inflicted numerous injuries of some sharp-edged weapon by the appellant. Now in the peculiar circumstances of the case we have to examine as to whether the eye-witnesses did witness the occurrence, as claimed by them. Before appreciating the ocular evidence we have taken up the mitigating factor behind the occurrence, as claimed by the prosecution. The prosecution attempted to prove the motive as set up in the F.I.R. Through the evidence of Muhammad Shakoor (P.W.1) father of Abid Shakoor (deceased), Muhammad Salim (P.W.3) real brother of the deceased and Muhammad Imran (P.W.5). 16. Insofar as, Muhammad Shakoor (P.W.1) is concerned, he did not claim himself to be the eye- witness of the quarrel between the deceased and the appellant over the demand of return of loan advanced by the deceased to the appellant. While Muhammad Salim (P.W.3) also not claimed himself to be the eye-witness of the said altercation which allegedly took place between the appellant and the deceased, rather, during the cross-examination that said witness conceded that neither the loan was advanced by Abid Shakoor (deceased) to the appellant nor did the altercation between them took place, in his presence, however, Muhammad Imran (P.W.5) a cousin of the deceased appeared as P.W.5 and claimed that 15 days prior to the occurrence, while they were sitting in the drawing room, hot words were exchanged between the appellant and Abid Shakoor (deceased), on the insistence of the latter for return of the loan. According to him Tariq Hameed appellant replied to Abid Shakoor (deceased) that he would not return the amount. Admittedly Muhammad Imran (P.W.5) is a resident of a village of 266/RB Khurianwala, Faisalabad, which according to himself is at a distance of 100/150 kilometers from the house of the complainant. During the cross-examination he stated that Abid Shakoor (deceased) had not disclosed to him (P.W.5) the fact of his altercation with the appellant. He further conceded that the amount of loan was not known to him. 17. The entire evidence produced by the prosecution failed to show that what sort of relationship had developed between the appellant and the deceased, on the basis of which the loan was advanced to the appellant. Admittedly the deceased was serving as a lecturer. It has nowhere been claimed that he was involved in any sort of business. No specific amount of loans has been narrated by the prosecution. It is also not understandable that the appellant, who was not returning the amount of loan to the appellant, would come to the house of Abid Shakoor (deceased) especially when it is not the case of the prosecution that after reaching the house of the deceased the appellant had straightaway attacked him rather, according to the prosecution the appellant was received by the deceased in a cordial manner and after making him sit in the drawing room he had brought some water to serve it to the appellant and after a short while the deceased was allegedly assaulted by the accused. So the motive for the murder as alleged by the prosecution being not trustworthy is disbelieved. 18. Now taking up the evidence of recoveries of blood-stained Chhuri and clothes of the appellant on his pointing out, we have concluded that in view of the stand taken up by the appellant the same were not much helpful to the prosecution. Besides, the blood-stained Chhuri was allegedly recovered from beneath the bushes on a road which, of course, is an open public place. In this background also we are not B going to place any reliance on the recovery of weapon of offence
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especially when no independent witness from the locality proved the same. Moreover, the prosecution unsuccessfully attempted to prove the said recoveries through the evidence of Rashid Aziz (P.W.4), who in thedays of occurrence had been serving as a caretaker in Cresent Model School Shadman, Lahore where the complainant was serving as a Headmaster. 19. Insofar as the ocular evidence is concerned, the same has been furnished by producing Muhammad Shakoor (P.W.1) father of the deceased and Muhammad Salim (P.W.3) real brother of the deceased. It is true that both the eye-witnesses had no enmity with the appellant but their evidence cannot be believed only due to said reason. ' For relying on the ocular evidence the Court has to examine intrinsic value of the same. In this case the occurrence took place at 11-15 a.m. Admittedly it was a working day. It is also an admitted fact the complainant, in the days of occurrence, was performing the duties of a Headmaster of a reputable institution namely Crescent Model School Shadman, Lahore, which is at 7 kilometers away from the house of the complainant. At the time he was supposed to be present in that school but he did not offer any explanation whatsoever for his presence at his home, on the date of occurrence. According to the eye-witnesses they had been attracted to the place of occurrence after hearing the shrieks of Abid Shakoor (deceased) while according to the F.I.R. Just after hearing the commotion, the eye-witnesses reached in the drawing room where they witnessed the inflicting of knife blows by the appellant to the deceased. The medical evidence tells us that the deceased received as many as 28 injuries but apparently all the three eye-witnesses performed the role of silent spectators during the occurrence. One would take the said reaction of the said witnesses with a pinch of salt. Besides, during the evidence the witnesses tried to improve their evidence by stating that only three or four injuries were inflicted to the deceased in their presence. It is also not believable that the appellant, who according to his statement under section 342, Cr.P.C. Was 19-years old at the time of occurrence, could not be apprehended by three eyewitnesses, who all were very closely related to the deceased. 20. There is another interesting factor which belies the testimony inasmuch as while lodging the F.I.R. The complainant gave a full particulars of…
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