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Petitioner: Pervez Iqbal VS Respondent: The State and another
Court Name: Lahore High Court Judge(s): Muhammad Tariq Nadeem Title: Pervez Iqbal vs The State and another Case No.: Criminal Appeal No. 1566 of 2013, Criminal Revision No. 944 of 2013 Date of Judgment:2022-02-03 Reported As: 2022 LHC 1858 Result: Cirminal Revision Dismissed
JUDGMENT
JUDGMENT Muhammad Tariq Nadeem. J. Pervaiz Iqbal (appellant) was tried by the learned Additional Sessions Judge Jaranwala in a private complaint in respect of offences under sections 302/34, PPC for the charge of committing murder of one Shahid Iqbal emanating from FIR No. 754 dated 23.10.2010 registered at Police Station Sadar Jaranwala, District Faisalabad and at the conclusion of the trial, the learned Trial Court vide its judgment dated 08.11.2013 convicted and sentenced the appellant as infra:- Pervaiz Iqbal Under section 302(b) PPC to life imprisonment for committing the murder of Shahid Iqbal (deceased) and to pay compensation of Rs.1,00,000/- under section 544-A Cr.P.C. to the legal heirs of deceased and in default thereof to further undergo six months S.I. Benefit of section 382-B, Cr .P.C. was also extended to him. Feeling aggrieved, the appellant has filed the titled appeal against his convictions and sentences before this Court, whereas, a criminal revision has also been filed by Mst. Manzooran Bibi petitioner for enhancement of sentence of the appellant from life imprisonment to death and compensation amount adequately . Since, common questions of law and facts are involved, therefore, supra mentioned matters are being dispo sed of by means of this single judgment. It is pertinent to mention here that earlier , on the application of complainant, F.I.R. No. 754 dated 23.10.2010 under sections 302/34, PPC was registered at Police Station Sadar Jaranwala District Faisalabad regarding the occurrence but being dissatisfied with the investigation of the police, the complainant filed a private complaint. 2. The facts of the case have been stated by Mst. Manzooran Bibi complainant (PW1) in her statement before the learned Trial Court, which are hereby reproduced for narration of the same:-
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"My deceased son Shahid Iqbal was married with Khatoon Bibi r/o Chak No. 649/G.B. About two years ago at about 08.15 p.m. I along with Shahid Iqbal deceased and his wife Khatoon Bibi went to Chak No. 649/G.B. And we left Khatoon Bibi nearby her parents' house and went forward to while something and when we reached in Khooh Wala Chowk, Zia accused since (P.O.) and Pervaiz Iqbal accused present in the Court both armed with pistols were also there. Both said accused started firing that hit on chest, left and right shoulders and different parts of body of Shahid Iqbal deceased. I along with Asif and Yousaf PWs witnessed the occurrence in the light of electricity bulb. The accused persons escaped from the scene and Shahid Iqbal succumbed to said fire shot injuries. The motive behind the occurrence was that about fifteen days prior to the occurrence Shahid Iqbal deceased and his wife Khatoon Bibi went to Chak No. 649/G.B, where Zia accused since (PO) made jokes to Khatoon Bibi upon which there took place a quarrel between Zia accused and the deceased for which both the accused committed murder of my son. I moved application for registration of FIR which bears my thumb impression and the same is available in challan case. Police did not investigate the case on merit and no justice was done with me and made many applications before the police high ups but to no avail, hence, this complaint Exh. P A. 3. After recording cursory statements of the complainant and PWs the accused were summoned to face the trial for the said charge. The learned Trial Court, after observing all the pre-trial codal formalities, framed charge against the appellant on 15.09.201 1 to which he pleaded not guilty and claimed trial. The prosecution in order to prove its case produced, as many as 03 PWs while CW1 to 7 were examined by the learned trial court in order to reach just conclusion of trial. The ocular account of the incident in issue had been provided by Mst. Manzooran Bibi, complainant (PW1) and Muhammad Yousaf (PW2). Akbar Ali Nizami, Draftsman appeared as (CW3), who prepared scaled site plans (Ex.CW3/1 and Ex.CW3/2). Ali Hussain, SI (CW7) was the investigating officer of the case who stated about the various steps taken by him during investigation of this case. The medical evidence was provided by Doctor Ameer Alam, (CW6), who on 24-10-2010 at about 10:00 a.m. conducted the autopsy on the dead body of Shahid Iqbal (deceased). The remaining evidence produced by the prosecution was formal in nature. 4. After closure of prosecution evidence, statement under section 342 Cr.P.C. of the appellant was recorded in which he gainsaid the allegations leveled against him and professed his innocence. While answering to a question, "why this case registered against you and why the PWs have deposed against you"?, the appellant replied as under:- "PWs are inter se related. Mst. Manzooran the complainant is real mother of deceased. And PW2 Muhammad Yousaf who is resident of Chak No. 567/GB which is away 10/15 kilometer away from Chak No. 649/GB is son-in- law of complainant Mst. Manzooran Bibi. Muhammad Yousaf PW2 has previous political and other enmity with me. I was falsely implicated by the complainant Mst. Manzooran Bibi with the consultation of PW2 Muhammad Yousaf due to the previous enmity with me. I am innocent and I was not present at the place of occurrence at the time of occurrence. I am innocent. The deceased Shahid Iqbal was an hardened and criminal man who has many enmities with the people in this regard, the cases of theft and dacoities were registered against the said deceased, due to this reason he has enmity with the other people who were the complainant of said FIRs. The deceased was not Masood-ul-Dam. I have no enmity with deceased. I was falsely implicated by the PWs. I am innocent. " The appellant, however , had not opted to appear as his own witness on oath as provided under Section 340(2) of the Code of Criminal Procedure, 1898 in disproof of the allegation leveled against him but produced defence evidence. 5. The learned Trial Court vide its judgment dated 08-11-2013 found the appellant guilty , convicted and sentenced him as mentioned above. 6. Learned counsel for the appellant submitted that the appellant has been falsely implicated in this case by the complainant party; that eyewitnesses of the case are not only inter-se related but they are also inimical towards the appellant, therefore, their evidence is not reliable without independent corroboration which is very much lacking in this case; that the medical evidence is in conflict with the ocular account of the prosecution; that a fake recovery of
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weapon of offence was planted against the appellant; that it is an established view of the Apex Court of the country that a single doubt in the prosecution evidence is sufficient to give the benefit of same to the accused in such like cases, whereas the case in hand is full of doubts; that the prosecution has failed to prove the motive of the case, therefore, the appeal in hand be accepted and appellant be acquitted of the charge. 7. Conversely , learned Deputy Prosecutor General assisted by learned counsel for the complainant has argued that the appellant is named in the FIR with specific role of causing injuries on the person of Shahid Iqbal (deceased); that the complainant and the PWs, who witnessed the occurrence, are residents of the same vicinity where the occurrence took place and as such there is no chance of any mis-identification of the appellant; that substitution is a rare phenomenon in our society; that the medical evidence is in line with the ocular account; that prosecution has proved its case beyond any shadow of doubt. Lastly , he prayed for dismissal of the instant appeal, whereas, the learned counsel for the complainant requests for acceptance of criminal revision. 8. Tripartite Arguments heard and record perused. 9. As per contents of FIR, the alleged incident qua murder of Shahid Iqbal, the real son of the complainant, took place on 23.10.2010 at 08:15 p.m. and the FIR was lodged on the same night at 09.40 p.m. within a period of 1 hour and 25 minutes but registration of FIR with such promptitude as claimed by the prosecution has been found otherwise from the perusal of application submitted by the complainant for registration of FIR (Exh. CW7/1) wherein in line number 2 and 3 it is clearly mentioned as infra:- ? ? 649 ???? ?? ????? ?? ????? ???? ?? ???? ?? ?? ??? ???? ?? ?? ??? ????? ???? ?? 2010/10/23 ????? ??" " ???? ??? ??? ?? ???? It evinces further from the record that in the end of line number 4 of Exh CW7/1 word "`???" and in the start of line number 5 word "???" have subsequently been added. Moreover from the bare reading of Exh-CW7/1 it transpires that complainant' s son Shahid Iqbal (deceased) alone went to the Kunwa Wala Chowk of Chak No. 649/GB at 08:15 p.m. Relevant line from application for registration of FIR (Exh. CW7/1) is reproduced infra:- "? ??? ???? ???? ??? ??? ???? ????? ???? ?? ??? ?? ????? ??? ??? ???? ???? ??? ??? 08:15 ???? ??? " Similarly this fact has also not been mentioned in Exh. CW7/1 that the complainan t also witnessed the occurrence rather it is specifically mentioned that occurrence was witnessed by Muhammad Yousaf (PW2) and Muhammad Asif (jettisoned PW). It is noteworthy that Mst. Manzoora Bibi (PW1) has narrated in her cross examination that matter was reported to the police by some local inmate but the name was not known to her. Police arrived at 09.00 p.m. The application was got written by a school master of her village who took papers etc. from some shop. It will not be out of place to mention here that above said school master and complainant (PW1) were residents of Chak No. 648/GB which is situated at a distance of 2, 2-1/2 kilometers from Chak No. 649/GB, (place of occurrence) and no reasoning has been given by the prosecution with respect to presence of a school master belonging to Chak No. 648/GB at the place of occurrence in a winter night. In her cross examination Mst. Manzooran Bibi complainant (PW1) has stated as under:- "The application was moved on the next day of occurrence and FIR was lodged" Supra mentioned facts clearly reveal that FIR was not lodged with promptitude. 10. I have noticed that according to the prosecution story the occurrence took place in the presence of eyewitnesses but Mst. Manzooran Bibi complainant (PW1) who happened to be real mother of the Shahid Iqbal (deceased) and Muhammad Yousaf (PW2) was his paternal cousin did not attempt to proceed to police station for lodging the FIR. According to the narration of application for registration of FIR (Exh. CW7/1) the same was produced before Ali Hussain, SI/I.O. (CW7) at the alleged place of occurrence by Mst. Manzooran Bibi complainant (PW1). In that backdrop, I have no hesitation to hold that the FIR was not lodged at Police Station because supra mentioned eyewitnesses were not present at the time and place of occurrence and same was got registered after due deliberation and consultation. Reliance is placed upon the case laws titled as "Abdul Jabbar alias Jabbari vs. The State" ( 2017 SCMR 1 155). 11. I have also observed that being dissatisfied with the police investigation, Mst. Manzooran Bibi complainant (PW1) filed a private complaint (Exh. PA) on 14.01.201 1 with the delay of 02 mont h and 21 days. Prosecution has
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not given any plausible reasoning qua such delay , meaning thereby the private complaint was filed after due deliberation and consultation just to fill up the lacunas left in the FIR. I fortify my view from the dictum laid down in case titled as "Muhammad Azad v . Ahmad Ali and two other" ( PLD 2003 SC 14 ). 12. In spite of providing support to ocular account the medical evidence had gone a long way in creating doubts in the same and in that respect I have observed that the postmortem examination on the dead body of Shahid Iqbal (deceased) was conducted on 24.10.2010 at 10.00 a.m. with the delay of 13 hours and 45 minutes and there is no exegesis qua the delay in conducting the post mortem examination. I have noted that Dr. Ameer Alam (CW6) has stated in his examination-in-chief that he received police papers at 10.00 a.m. on 24.10.2010. So it was a case of delayed post-mortem, which casts serious doubt about the prosecution story . It has been held repeatedly by the Hon'ble Supreme Court of Pakistan that such noticeable delay is normally occasioned due to incomplete police papers necessary to be handed over to the Medical Officer to conduct the postmortem examination on the dead body of the deceased which happens only when the complainant and police remain busy in consultation and preliminary inquiry regarding the culprits in such cases of unwitnessed occurren ce. Wisdom is derived from the judgments "Sufyan Nawaz and another vs. The State and others" (2020 SCMR 192), "Muhammad Adnan and another Ys. The State and another" (2020 SCMR 1850 ) and "Muhammad Adnan and another vs. The State" (2021 SCMR 16 ). 13. The ocular account furnished by the prosecution in this case hinges upon the statements of Mst. Manzooran Bibi complainant (PW1) and Muhammad Yousaf (PW2). Mst. Manzooran Bibi complainant (PW1) is the real mother of Shahid Iqbal (deceased), whereas, Muhammad Yousaf (PW2) is paternal cousi n of the deceased. According to the prosecution story the occurrence took place at Chak No. 649/GB, whereas, Mst. Manzooran Bibi complainant (PW1) was resident of Chak No. 648/GB. It is admitted by Mst. Manzooran Bibi complainant (PW1) that there was a distance of 2, 2-1/2 kilometers between Chak No. 648/GB and Chak No. 649/GB. After minute perusal of statement of Mst. Manzooran Bibi complainant (PW1), it manifests that she is interested and chance witness and the evidence furnished by her is not confidence inspiring. For instance, while appearing before the learned Trial Court she has failed to describe the abuttals. Similarly , as this Court has already described in para No. 9 of this judgment that complainant (PW1) has stated in her cross examination that application was moved on the next day of occurrence and FIR was lodged. If she (PW1) had been present at the time and place of occurrence, the FIR would have been registered well in time. The relevant lines of her cross examination are hereby reproduced as under:- "I cannot say that what was located on the Northern side and same is the position as to the Southern side. From the above circs, it is crystal clear that evidence of Mst. Manzooran Bibi complainant (PW1) is not confidence inspiring, therefore, I have no option except to discard the same. Insofar as the evidence of Muhammad Yousaf (PW2) is concerned, although he has stated that he is resident of the same village where the alleged occurrence took place but the complainant (PW1) has replied in her cross examination as under:- " ... Yousaf PW is also husband of my other 'Bhatiji (niece). I do not know if Yousaf alongwith his parents lives in Chak No. 567/G.B. I cannot tell as to distance between chak No. 567/G.B to 649/G.B and as such I do not know that it may be 10 K.M." In this way, PW2 is also related, interested and partisan witness. He (PW2) has enmity prior to the occurrence with Pervaiz Iqbal appellant and this fact is evident from his cross-examination because previously FIR No. 1041/2007 under section 337-A(iii), L(2), PPC was registered against supra mentioned PW and Pervaiz Iqbal (appellant) supported the complainant party of that case. The relevant portion of his cross-examination reads as under:- "It is correct that Shoukat Ali got registered a case No. 1041/07 u/ss 337-A3/L2, PPC against me. It is incorrect that I challaned in the above said case. Voluntarily stated that compromise was effected between the parties. It is incorrect that my volunteered statement is false. It is incorrect that Shar Muhammad son of Rajab Ali got registered a case No. 376/02 dated 18.05.2002 under section 337-F3/A1/L2/34, PPC P.S. Jaranwala against me along with Ghafoor son of Rajab Ali. It is incorrect that I was challaned in this case and police decalred me guilty . Pervaiz accused is Numberdar of Rajpoot Patti and Farman Ali is the numberdar of Malik Patti Rana Nazir Ahmad and
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Barak Ullah contested the Election of Naib Nazim with each other . I casted my vote infavor of Bark Ullah and the accused Pervez casted their votes infavor of Rana Nazir Ahmad. Rana Nazir Ahmad residing at Jaranwala since 2004-05. The election was contested betw een the parties five six years ago. It is correct that the case which were registered against me one of the complainant of the said cases is Shoukat Ali and Sher Muhammad were favoured by the present accused at police station as well as in the Election. It is incorrect to suggest that I gave the false statement against the present accused due to previous grudge." The above mentioned PW has also stated in his cross examination that he had never got any his statement recorded before the police. Relevant lines of his cross examination are also described below for ready reference:- "Police did not record my statement. Police never recorded my statement in this case. Police visited the place of occurrence at once. Again said police visited the place of occurrence two times as a whole and police did not recorded our statement nor hear us about the occurrence." I have also observed that during his cross examination Muhammad Yousaf (PW2) has stated infra:- "I do not know that what was the season in which the occurrence took place." In the light of op-cit facts, I am satisfied that evidence of Muhammad Yousaf (PW2) has no intrinsic worth and hereby rejected outrightly . I have pondered over the detail of occurrence provided by both the eyewitnesses and have no hesitation to hold that supra mentioned PWs are related and chance witnesses, their evidence is not trustworthy and they have deposed against the appellant just to wreak vengeance. In this regard, I respectfully refer the case reported as "Arshad Khan vs. The State" (2017 SCMR 564) wherein the Hon'ble Supreme Court of Pakistan has observed as under:- "Both the eye-witnesses produced in this case, i.e. Zahid Khan complainant (PW8) and Muhammad Sadiq (PW9) were very closely related to Mst. Naheed Akhtar deceased and they were admittedly chance witnesses. The said witnesses had maintained before the trial court that at the relevant time they were proceeding towards a mosque in order to offer Fajar prayers but a bare look at the site-plan of the place of occurrence shows that the houses of the said eye-witnesses were not situated close to the house of occurrence and they were situated so far away that they could not find any mention in the site plan of the place of occurrence at all. No mosque near the house of occurrence had been shown in the said site-plan and, thus, the stated reason for presence of the said eye- witnesses near the place of occurrence never stood established on the record through any evidence whatsoever" Further reference in this regard can also be given to the case laws titled as "Ibrar Hussain vs. The State" (2020 SCMR 1850 ) and "Abdul Khaliq vs. The State" ( 2021 SCMR 325 ). 14. Another important point of this case which cannot be lost sight off is that there is conflict between ocular account and medical evidence. According to prosecution story Pervaiz Iqbal appellant and his co-accused namely Zia Ullah (since PO) jointly made pistol 30 bore fire shots which landed upon the right shoulder , in front of below the chest and on left flank, whereas, according to the statement of Dr. Ameer Alam (CW6) he has not described any injury in front of below the chest of Shahid Iqbal deceased. Similarly , the injury described by the PWs at the left flank of Shahid Iqbal was injury No. 2-B, which is an exit wound, in this way, I have no hesitation to hold that the ocular account of prosecution case is not synchronized with the medical evidence. A reference in this respect may be made to the cases of "Zahir Yousaf and another vs. The State and another" (2017 SCMR 2002 ), "Mian Sohail Ahmad and others vs. The State and others" (2019 SCMR 956) and "Khalid Mehmood and another vs. The State and others" ( 2021 SCMR 810 ). 15. There is another astonishing aspect of this case is that both the eyewitnesses Mst. Manzooran Bibi complainant (PW1) and Muhammad Yousaf (PW2) have narrated only three injuries in their statements but according to the post mortem report of Shahid Iqbal deceased (Exh CW6/1) and statement of Dr. Ameer Alam (CW6) there were eight entry and eight exit wounds and two other injuries i.e abrasion and grazing wounds on the body of Shahid Iqbal (deceased). This fact is sufficient to hold that supra mentioned prosecution witnesses were not present at the time and place of occurrence, if they were present at the relevant time, then they must have described the whole injuries as observed by the Hon'ble Supreme Court of Pakistan in the case of "Irfan Ali Ys.
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The State" (PLJ 2015 SC 634). Reference can also be made to the case law titled as "Ibrar Hussain and another vs. The State" ( 2020 SCMR 1850 ). 16. It is also noted that a joint role of firing is attributed to the appellant that he along with his co-accused Zia Ullah (since PO) made pistol 30 bore fire shots which landed below the front of chest, left shoulder and left flank of Shahid Iqbal (deceased). It is not discernable from the record that out of two assai lants whose fire shots landed on which part of the deceased. This fact also makes the case of prosecution highly doubtful in nature. 17. From the scanning of prosecution evidence, it evinces that alleged occurrence took place in thickly populated commercial area of Chak No. 649/GB, in this respect relevant lines of cross examination of Mst. Manzooran Bibi complainant (PW1) are mentioned below:- "There was hotel of Rana, etc. on the western side of place of occurrence and the hotel of Fauji was located on the eastern side. At the time of occurrence my son was standing on western side to purchase some sweets. I was present at the distance of 10-15 feet from the hotel of Fauji." I have observed that according to the statement of Mst. Manzooran Bibi complainant (PW1) she came at Chak No. 649/GB in the company of her son Shahid Iqbal (deceased) and daughter in law Mst. Khatoon Bibi but she failed to prove this fact because Mst. Khatoon Bibi or her parents have not been produced to substantiate this fact that the complainant (PW1) along with her son Shahid Iqbal deceased and her daughter-in-law Mst. Khatoon Bibi came at Chak No. 649/GB in their company . I have noted that Mst. Khatoon Bibi, owne r of Sweet House as well as workers of Fauji Hotel and Rana Hotel were the important witnesses. Above mentioned PWs were neither produced during the investigation nor before the learned Trial Court. In this way best evidence has been withheld by the prosecution. It is true that although the prosecution is not bound to produce a number of witnesses because the quality and not the quantity of evidence is rule but withholding of quite natural and material witnesses of the occurrence in the peculiar circumstances of this case without any justifiable cause, leads the Court to draw an adverse inference against the prosecution within the purview of Article 129 (g) of Qanun-e-Shahadat Order , 1984, had any of the said witnesses was produced before the learned Trial Court for examination, he would have not supported the prosecution version. Reliance is placed on the esteemed judgments of the Hon'ble Supreme Court of Pakistan in cases of "Riaz Ahmad versus The State" (2010 SCMR 846), "Khalid @ Khalidi and 2 others versus The State" (2012 SCMR 327) and "Muhammad Asif vs. The State" ( 2017 SCMR 486 ). 18. Another intriguing aspect of the case is that Mst. Manzooran Bibi complainant (PW1) and Muhammad Yousaf (PW2) have made dishonest improvements at the time of evidence before the learned Trial Court. Mst. Manzooran Bibi complainant (PW1) has narrated in her complaint (Exh. PA) that Pervaiz Iqbal (appellant) and his co accused Zia Ullah (since PO) made fire shots which hit on chest, left shoulder , in front of below the chest and left flank of the deceased, whereas, in her examination-in-chief, she (PW1) has stated as under:- "Both the said accused started firing that hit on chest, left and right shoulder and different parts of body of Shahid Iqbal deceased" Likewise, Muhammad Yousaf (PW2) has stated in his examination-in- chief which is hereby reproduced as under for ready reference:- "Pervez Iqbal accused present in Court and Zia Ullah accused (since PO) both armed with pistols started firing upon Shahid Iqbal (deceased) hitting on his right and left…
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