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Petitioner: MUHAMMAD ILYAS alias BHOLA VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Malik Shahzad Ahmad Khan, Manzoor Ahmad Malik Title: MUHAMMAD ILYAS alias BHOLA vs THE STATE Case No.:Criminal Appeals Nos.590, 756 and Murder Reference No.182 of 2007
JUDGMENT
Reported As: 2012 YLR 1441 Result: Order accordingly Judgment JUDGMENT ' MALIK SHAHZAD AHMAD KHAN, J.---We propose to dispose of Murder Reference No.182 of 2007, sent by the learned trial Court, Criminal Appeal No.590 of 2007, preferred by appellant Muhammad Ilyas alias Bhola and Criminal Appeal No.756 of 2007, filed, by Akbar Ali-complainant against the acquittal of Muhammad Abbas accused, by this single judgment, as all these matters stem out of the judgment dated 18-4-2007, passed by learned Additional Sessions Judge, Lahore. 2. Muhammad Ilyas alias Bhola appellant alongwith Muhammad Abbas and Muhammad Ashfaq accused was tried in case F.I.R. No.462, dated 19-7-2004, registered at Police Station, Kahna, Lahore in respect of offences under sections, 302., 34 of P.P.C. After conclusion of the trial, vide its judgment dated 18-4-2007, the learned trial court has acquitted Muhammad Abbas and Muhammad Ashfaq co-accused; whereas, Muhammad Ilyas appellant has been convicted and sentenced as under:-- ' Muhammad Ilyas alias Bhola ' Under section 302(b) of P.P. C. To death as Ta'zir for committing Qatl-e-Amd of Ahmad All deceased. He was also ordered to pay Rs.4,00,000 (Rupees four hundred thousand only) as compensation to the legal heirs of the deceased under section 544-A, Cr. P. C. Or in default to suffer simple imprisonment for six months. ' It is pertinent to mention here that Criminal Appeal No. 756 of 2007 was filed against the acquittal of Muhammad Ashfaq and Muhammad Abbas which was dismissed on merits vide order dated 18-3-2008 to the extent of Muhammad Ashfaq, whereas, to the .Extent of Muhammad Abbas
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accused the above mentioned appeal was admitted and notice was issued to the above mentioned Muhammad Abbas son of Sarfraz Alam (respondent No. 1) in the said appeal. 3. Brief facts of the case as given by the complainant, namely, Akbar Ali (P.W.1.) in his Fard Bian' Exh.PA on the basis of which formal F.I R. (Exh.PA/1) was chalked out, are that on 19-7-2004 at about 6-45 p.m., his brother Ahmad Ali went to the Haveli from his house to milk the buffalo. The said Haveli was situated in the same street. After doing his job, when he was coming from the Haveli towards his house. At that time, Muhammad Abbas accused, Muhammad Ilyas alias Bhola appellant and Muhammad Ishfaq (co-accused since acquitted) were present in the street while armed with pistols. Muhammad Ilyas alias Bhola appellant and Muhammad Abbas accused were present on their Motorcycle No. LOZ 7029 near the turn of the street, whereas, Muhammad Ishfaq (co-accused since acquitted) was also present in the same street at some distance. Muhammad Ishfaq (co-accused since acquitted) raised lalkara on seeing Ahmad Ali (deceased) that he should not be let alive, whereupon, the appellant Muhammad Ilyas alias Bhola and the accused Muhammad Abbas. Both started firing with their respective weapons at Ahmad Ali (deceased). First fire shot was made by Muhammad Abbas accused which landed on the chest of Ahmad Ali, whereas, second fire shot was made by Muhammad Ilyas alias Bhola appellant which landed on the abdomen of Ahmad Ali (deceased) who fell down. Muhammad Ilyas alias Bhola appellant and Muhammad Abbas accused, thereafter, started indiscriminate firing at Ahmad Ali (deceased). The accused, thereafter, fled away from the spot while brandishing their respective weapons. Ahmad . Ali was taken to the General Hospital, Lahore in an injured condition, where he succumbed to the injuries. ' The motive behind the occurrence as alleged was that Ahmad Ali deceased contracted a love marriage with Mst. Yasmeen Bibi, who was sister of all the accused. 4. Muhammad Abbas accused and Muhammad Ishfaq co-accused were not arrested by the police as they were declared innocent, whereas, the appellant Muhammad Ilyas alias Bhola was formally arrested on 30-8-2004. On the same day Muhammad Ilyas alias Bhola appellant got recovered pistol .30 bore P-5 alongwith licence from his residential house situated at Ward No. 8, Kahna Nau, Lahore, which was taken into possession vide recovery memo Exh.PF. After completion of investigation, the challan was prepared and submitted before the learned trial court declaring Muhammad Ilyas alias Bhola appellant as guilty. The learned trial court, after recording cursory statement of the complainant Akbar Ali (P.W.1.) also summoned Muhammad Abbas and Muhammad Ishfaq accused to face the trial and after observing legal formalities, as provided under the Code of Criminal Procedure, 1898 framed the charge against all the accused on 3-4- 2006, to which they pleaded not guilty and claimed trial. 5. In order to prove its case, the prosecution produced 10 witnesses, during the trial. Akbar Ali complainant (P.W.1.) and Barkat Ali (P.W.2.) are the witnesses of ocular account. ' The medical evidence was furnished by Dr. Shahid Mehmood Nasir (P.W.11.). ' Allah Wasaya (P.W.3.), Jamshed Ali (P.W.4.), Syed Younas Bukhari draftsman (P.W.6.), Muhammad Ilyas HC/7020 (P.W.7.), Muhammad Boota, S.-I. (P.W.8.) and Muhammad Yasin; A.S.-I. (P.W.10.) are the formal witnesses. Manzoor Ahmad C/2634 (P.W.5.) is the witness of recovery of pistol P5, which was allegedly recovered on the pointation of Muhammad Ilyas . Alias Bhola appellant. Muhammad Anwar, Inspector/S.H.O. (P.W.9.) was the Investigating Officer of this case. The prosecution produced documentary evidence in the shape of F.I.R. Exh. PA/1, copy of complaint Exh. PA, memo of possession of postmortem report Exh.PB, memo of possession of empty bullets Exh. PC, memo of possession of blood stained cotton Exh. PD, memo of possession of motorcycle Exh.. PE, memo of possession of pistol .30 bore Exh. PF, copy of death report Exh.PH, copy of post-mortem report, etc. Exh.PK, copy of site plan Exh. PG, report of Chemical Examiner Exh. PM, Serologist report Exh. PN, report of Forensic Science Laboratory Exh. PL and Exh. PL/ 1 and closed its evidence.
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' The statements of the appellant Muhammad Ilyas alias Bhola, Muhammad Abbas and Muhammad Ishfaq accused under section 342, Cr.P.C. Were recorded. They refuted the allegations levelled against them and professed their innocence. While answering to question "Why this case against you and why the P.Ws. Have deposed against you" Muhammad Ilyas alias Bhola appellant replied as under:-- "I have been falsely implicated in this case by the complainant and his brothers. I have no motive to commit the offence alleged against me. The alleged murder took place outside the house of Ahmed Ali deceased in the lane. The occurrence has been concocted in connivance with the police to have taken place near the Haveli More. All the P. Ws. Are closely related and they have not seen the occurrence. Complainant Akber All is a wagon driver and was away driving his wagon. Barket All P.W. Resided at Ichhra with his in-laws at the time of occurrence. Both P. Ws. Have not seen the occurrence and they have implicated me in this case merely on the basis of suspicion. ' Similarly Muhammad Abbas accused (respondent No. 1 in Criminal Appeal No. 756 of 2007) While answering to question "Why this case against you and why the P.Ws. Have deposed against you" replied as under:-- "I have been falsely implicated in this case by the complainant and his brothers. I have no motive to commit the offence alleged against me. The alleged murder took place outside the house of Ahmad All deceased in the lane. The occurrence has been concocted in connivance with the police to have taken place near the Haveli More. All the P.Ws. Are closely related and they have not seen the occurrence. Complainant Akber Ali is a wagon driver and was away driving his wagon. Barket Ali P. W. resided at Ichhra with his in-laws at the time of occurrence. Both P. Ws. Have not seen the occurrence and they have implicated me in this case merely on the basis of suspicion. I was found innocent during investigation. No recovery has been effected from me. I was never arrested by the police. I am innocent. ' All the accused opted not to make statement under section 340(2) of Cr.P.C. But they produced Zulfiqar Ali as (DW-I) and Muhammad Iqbal as (DW-2) in their defence. The learned trial Court vide its judgment dated 18-4-2007, while acquitting co-accused Muhammad Abbas and Muhammad Ishfaq, found Muhammad Ilyas alias Bhola appellant guilty and convicted and sentenced him as mentioned and detailed above. 6. The learned counsel for the appellant Muhammad Ilyas alias Bhola and accused Muhammad Abbas (respondent No.1 in Criminal Appeal No. 756 of 2007), contends that the accused were falsely implicated in this case; that there is delay of more than two hours in lodging the F.I.R., whereas, the police station was only at the distance of 1/2 kilometer from the place of occurrence; that it is a case of the prosecution that the deceased had gone to milk the buffalo but no buffalo was seen by the police when the police inspected the site; that the eye-witnesses produced by the prosecution are chance witnesses and they have not been able to explain their presence at the spot at the relevant time; that the complainant is a wagon"driver and he has not stated that he was not performing his normal duties at the time of occurrence; that both the witnesses are interested witnesses as well; that the motive alleged by the prosecution is highly improbable and the same was not proved by the prosecution; that the recovery of pistol P-5 has been planted upon the appellant, therefore, the report of Forensic Science Laboratory is not helpful to the prosecution case ; that the prosecution has failed to prove its case against the appellant Muhammad Ilyas alias Bhola beyond any shadow of doubt and that the appellant is entitled to acquittal. 7. On the other hand, the learned Deputy-Prosecutor General assisted by the learned counsel for the complainant has vehemently opposed the contentions of the learned counsel for the accused
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on the grounds that the delay per se in lodging the F.I.R. Is no ground to discard the evidence of the eye-witnesses and even otherwise there is no delay in reporting the matter to the police; that in order to prove its case, the natural eye-witnesses' account has been furnished by the prosecution, which inspired confidence and despite cross-examination, the defence could not shake the testimony of the prosecution witnesses; that there could not be any reason to falsely implicate the appellant in this case; that the ocular account is fully supported by the medical evidence as the deceased received as many as eight injuries on his person, which fact is evident from the post mortem examination report (Exh. PK); that motive has also been proved and it has not been denied by the appellant; that even otherwise in such like cases substitution is a rare phenomenon; that pistol. 30 bore (P.3) was recovered on the pointation of the appellant and according to the report of FSL (Ex.P.L), nine out of ten empties recovered from the place of occurrence were fired from the above-mentioned pistol, which has further corroborated the prosecution case against the appellant Muhammad Ilyas alias Bhola; that the prosecution has proved its case against the appellant beyond any shadow of doubt and the defence evidence is not reliable; that the appeal filed by the appellant against his conviction and sentence be dismissed and Murder Reference be answered in the affirmative. ' So far Muhammad Abbas (respondent No. 1 in Criminal Appeal No.756 of 2007) is concerned he was named in the F.I.R.; that there is allegation that .He also resorted to firing and his fire shot hit at the chest of the deceased, which is supported by medical evidence and that the opinion of the police regarding guilt or innocence of an accused is inadmissible in evidence and he is also liable to be convicted and sentenced. ' The learned counsel for respondent No.1 in Appeal No.756 of 2007 contends that an accused, after his acquittal by the trial court enjoys double presumption of innocence; that he was found innocent by the police and even he was not arrested; that no recovery has been effected from Muhammad Abbas accused to corroborate the version of the prosecution and he has rightly been acquitted by the learned trial court. 8. We have heard the arguments of the learned counsel for the parties and have also gone through the evidence available on the record with their able assistance. 9. We would first like to discuss the case of Muhammad Ilyas alias Bhola appellant. 10. The occurrence in this case took place on 19-7-2004 at 6-45 p.m., (evening) at Ward No. 6 Kahna situated in the area of Police Station Kahna, District Lahore. The matter was reported to the police through `Fard Bian' Exh. PA by the complainant Akbar Ali (P.W.1.) at 8-30 p.m. At Emergency Ward General Hospital, Lahore. The formal F.I.R. Was registered on the same day at 9-05 p.m. The place of occurrence is situated at the distance of half kilometer from the Police Station. Immediately after the occurrence Ahmad Ali (deceased) was taken to the General Hospital, Lahore in an injured condition by the complainant. Considering the place of occurrence, its distance from the Police Station and the time of registration of the F.I.R. Exh.PA/1 and other circumstances, we are of the view that there was no delay in reporting the matter to the police. 11. The prosecution in order to prove the ocular account has produced the complainant Akbar Ali (P.W.1.) and Barkat Ali (P.W.2.). According to the statement of the complainant Akbar Ali (P.W.1.) on 19-7-2001 at about 6-45 p.m. His brother Ahmad Ali went to the Haveli from his house in order to milk the buffalo. Haveli and the house of the complainant were situated in the same street. After milking buffalo, when Ahmad Ali was coming back to his house, at that time Muhammad Ilyas alias Bhola and Muhammad Abbas respondent No. 1 in connected Criminal Appeal No. 756 of 2007, both sons of Sarfraz were already present while armed with pistols on their Motorcycle bearing Registration No. LOZ 7029 near the turn of the street, whereas, Ishfaq alias Shakan son of Sarfraz accused while armed with pistol was also present in the same street. He (Ishfaq alias Shakan) accused on seeing Ahmad Ali (deceased) raised a lalkara that Ahmad Ali be not let alive, upon
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which first fire shot was made by Muhammad Abbas accused which landed on the chest of Ali Ahmad, whereas, second fire shot was made by Muhammad Ilyas alias Bhola appellant which landed on the abdomen of Ahmad Ali who fell down. The appellant Muhammad Ilyas alias Bhola and Muhammad Abbas accused, thereafter, started indiscriminate firing. Ahmad Ali was socked with blood. Accused, thereafter, fled away from the spot. The statement'of Barkat Ali (P.W.2.) before the learned trial court is also in line with the statement of Akbar Ali (P.W.1.). The above-mentioned eye-witnesses namely Akbar Ali (P.W. I.) and Barkat Ali (P.W.2.) are natural witnesses of the occurrence. The place of occurrence is not disputed in this case. The incident took place near the house of the above-mentioned eye-witnesses. They being inmates of the house are natural witnesses of the occurrence. Their presence at the spot at the relevant time is quite natural. Their evidence qua Muhammad Ilyas alias Bhola appellant is straightforward and confidence-inspiring. 12. The prosecution had produced medical evidence through Dr. Shahid Mehmood Nasir (P. W. 11). He on 20-7-2004 at 1-30 p.m. Conducted the Postmortem Examination on the deadbody of Ahmad. Ali through Post-mortem Report Exh. PK, diagrams Exh. PK/1 and Exh. PK/2. He found the following injuries on the person of Ahmad Ali deceased:- (1-A) 0.5 x 0.5 cm on front of left side of chest, 3 cm below left nipple. (1-B) A firearm lacerated wound 0.5 x 0.5 cm with everted margins present on back of chest, 21 cm from occipital protuberance in middle. (2-A) 1 x 0.5 cm below and lateral to umbilicus with inverted margins 6 cm from anterior superior iliac spine on right. (2-B) A firearm lacerated wound with everted margins 0.5 x 0.5 cm on the right side of abdomen 6 cm right of umbilicus. (3) A firearm lacerated wound with inverted margins on the left side o abdomen. (4) Grazed wound on right abdominal wall below lateral to umbilicus on right side. (5-A) A firearm lacerated wound 0.5 x 0.5 (in right thigh, 3 inches from anterior iliac spine on ,front of thigh. (5-B) 'A fire arm everted wound 0.5 x 0.5 on right buttock, 9 cm from natal cleft. (6-A) A firearm injury with inverted margins on front of thigh 8 cm from injury No. 5-A (6-B) 0.5 x 0.5 cm on left buttock with everted margins, 2 cm from natal cleft. (7-A) A firearm injury with inverted margins 1 0.5 cm on front of thigh below and medial 140 cm from injury No. 6-A.. (7-B) A firearm injury with everted margins 0.5 x 0.5 cm on right buttock. 7 cm from injury No. 6-B. (8-A) A firearm injury with inverted margins 0.5 x 0.5 cm on left thigh about middle 15 cm from anterior superior iliac spine. (8-B) A firearm injury with everted margins 0.5 x 0.5 cm on left thigh 6 cm from injury No. 8-A. #TBS 2012] #TBE ' According to his opinion the above-mentioned injuries were caused by a firearm weapon. The time that elapsed between injury and death was within few minutes and between death and post mortem was 18 to 24 hours. The above referred medical evidence has substantially supported the ocular account furnished by Akbar Ali (P.W.1.) , and Barkat Ali (P.W.2.). According to the medical evidence the nature, of injuries on the person of Ahmad Ali deceased, the kind of weapon used during the occurrence and the time of occurrence/death has tallied with the evidence of eye- witnesses Akbar Ali (P.W.1.) and Barkat Ali (P.W.2.). Dr. Shahid Mehmood Nasir (F.W.11.) was cross- examined by the learned defence counsel but nothing favourable to the accused/appellant could be brought on the record during the process of his cross-examination. 13. The prosecution case against Muhammad Ilyas alias Bhola appellant was further corroborated by the recovery of pistol P-5 which was recovered on his pointation vide recovery memo Exh.PF. We
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have noted that ten empties of .30 bore pistol were recovered on 19-7-2004 from the place of occurrence. The said empties were sent to the Forensic Science Laboratory on 24-8-2004. The appellant Muhammad Ilyas alias Bhola was formally arrested in this case on 30-8-2004 and pistol P-5 was recovered on his pointation on the same day vide recovery memo Exh.PF. The said pistol was received at Forensic Science Laboratory, Punjab, Lahore on 30-9-2004 and according to the report of the Forensic Science Laboratory Exh.PL, nine empties recovered from the place of occurrence were fired from .30 bore pistol recovered on the pointation of Muhammad Ilyas alias Bhola appellant, therefore, the evidence of recovery of pistol P-5 and positive report of the Forensic Science Laboratory Exh.PL have further corroborated the prosecution case against Muhammad Ilyas alias Bhola appellant. 14. Insofar as the evidence of motive is concerned the complainant Akbar Ali (P.W.1.) while appearing in the court has stated that Ahmad Ali deceased and Mst. Yasmeen sister of the accused persons had contracted love marriage and the matter was compromised. He did not state that the accused kept the said grudge in their minds and due to the above-mentioned motive they committed the murder of Ahmad Ali. Although Barkat Ali (P.W.2.) while appearing before the court has stated that the accused kept the grudge in their 'hearts and due 'to the above mentioned reason they committed the murder of Ahmad Ali (deceased) but at the same time he has also stated that the matter was patched up. So according to the statement of the above mentioned prosecution witnesses the matter regarding the alleged love marriage of the deceased with the sister of the appellant was already patched up between the parties. The above mentioned motive was not put to the appellant Muhammad. Ilyas alias Bhola in his statement under section 342 of Cr.P.C., therefore, the alleged motive cannot be used against Muhammad Ilyas alias Bhola appellant. Keeping in view the above-mentioned facts, we are of the considered opinion that the motive in this case was not proved. 15. The accused also produced Zulfiqar Ali (DW-l) and Muhammad Iqbal (DW-2) in their defence. According to the statement of Zulfiqar Ali (DW-1) on 19-7-2004 he was present in the how of his brother-in-law (Bahnoi) Haji Shaukat situated in Ward No.8. He further stated that on hearing the report of firing he came out of the house of his brother-in-law and saw Ahmad Ali in an injured condition lying on the ground and except Shah Muhammad no other relative of Ahmad Ali was seen by him at that time. Similarly Muhammad Iqbal (DW-2) is also resident of Ward No. 8. He has also stated that on 19-7-2004 at evening time on hearing noise of fire shots he came out of his house and saw Mohallandar gathered on the street outside the house of Ahmad Ali who was lying in an injured condition on the ground. At that time, nobody named Muhammad Ilyas alias Bhola and Muhammad Abbas, as accused. The statements of above-mentioned defence witnesses are not reliable, because they are resident of Ward 'No.8, whereas, the occurrence took place in Ward No.6. All the accused are resident of Ward No.8, therefore, it appears that being Mohallandar of the accused, they appeared in their defence. Zulfiqar All DW-1 is a chance witness and he has not explained any plausible reason for his presence in the house of his brother-in-law. He has admitted during his cross-examination that he never appeared before any police officer during the investigation of this case in defence of the accused. Muhammad lqbal (DW-2) has admitted that he remained in jail in narcotic case at .Peshawar jail. He has also stated, that he was arrested in the murder case of his brother by the police of Police Station Kahna. Although he claimed that he appeared before the Investigating Officer Muhammad Anwar, Inspector/ S.H.O. (P.W.9.) in defence of the accused persons but this fact was never brought on the record by the learned defence counsel during cross-examination of Muhammad Anwar, Inspector/S.H.O. (P.W.9.). Both the above mentioned witnesses have admitted during their cross-examination that they had not seen anybody firing at Ahmad Ali deceased meaning thereby they were not eye-witnesses of
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the occurrence. In view of the above discussion the defence evidence produced by the appellant is not worthy of reliance and the same is not helpful to the appellant Muhammad Ilyas alias Bhola. 16. We have disbelieved the evidence of motive, however, if the evidence of motive is excluded from consideration even then there is sufficient incriminating evidence available on the record against Muhammad Ilyas alias Bhola appellant. As discussed earlier the prosecution case was fully established to the extent of Muhammad Ilyas alias Bhola appellant through the evidence of Akbar Ali (P.W.1.) and Barkat Ali (P.W.2.). Their evidence is straightforward and confidence inspiring. The ocular account of the prosecution is supported by the evidence of Dr. Shahid Mehmood Nasir (P.W.11.), as well as, by the post-mortem report Exh. PK, pictorial diagrams Exh.PK/1 and Exh.PK/2. It is further corroborated by the recovery of pistol P-5 from the possession of the appellant Muhammad Ilyas alias Bhola and positive report of Forensic Science Laboratory Exh.PL. Keeping in view the above mentioned evidence, we are of the considered view that the prosecution has fully proved its case against Muhammad Ilyas alias Bhola appellant, beyond the shadow of any doubt. 17. Now we would like to discuss the case of Muhammad Abbas, respondent No.1 in Criminal Appeal No.756 of 2007.. Muhammad Abbas and Muhammad Ishfaq accused both were declared innocent during police investigation. They were found not involved in the commission of offence so they were not arrested by the police. Anyhow, both of them were summoned to face the trial by the learned trial court after recording of cursory evidence of the complainant Akbar Ali (P.W.1.). Muhammad Abbas and Muhammad Ishfaq accused were acquitted by the learned trial court but on the appeal filed by the complainant Muhammad Abbas was summoned, whereas, to the extent of Muhammad Ishfaq accused the appeal was dismissed by this Court vide order dated 18-3-2008. Although Muhammad Abbas accused was declared innocent in two successive investigations but this Court is not bound by the opinion given by the Investigating Officer because it is always the evidence available on the record, which weigh with…
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