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Petitioner: The State VS Respondent: Muhammad Maqbool alias Allah Wasaya, Muhammad JUDGMENT
Court Name: Lahore High Court Judge(s): Anwaarul Haq Pannun, Sadiq Mahmud Khurram Title:The State vs Muhammad Maqbool alias Allah Wasaya, Muhammad
JUDGMENT
Reported As: 2022 LHC 5543 Result: Appeal Allowed Judgment JUDGMENT . SADIQ MAHMUD KHURRAM, J. Muhammad Maqbool alias Allah Wasaya son of Allah Ditta and Muhammad Rafique alias Mithu son of Muhammad Sharif (convicts) were tried alongwith Allah Wadhaya alias Wada and Muhammad Sabir (both since acquitted), the co-accused of the convicts, by the learned Additional Sessions Judge, Fortabbas in the case FIR No.644 of 2013 dated 26.11.2013 registered at Police Station Fortabbas, District Bahawalnagar in respect of offences under sections 302 and 34 PPC for committing the Qatl-i-Amd of Muhammad Jaffar son of Muhammad Yar (deceased) and Baqir Khan son of Muhammad Yar (deceased). The learned trial court vide judgment dated 07.03.2020, convicted Muhammad Maqbool alias Allah Wasaya son of Allah Ditta and Muhammad Rafique alias Mithu son of Muhammad Sharif (convicts) and sentenced them as under: Muhammad Maqbool alias Allah W asaya son of Allah Ditta: Death on two counts under section 302(b) PPC as Tazir for committing Qatl-i-Amd of Muhammad Jaffar son of Muhammad Yar (deceased)and Baqir Khan son of Muhammad Yar (deceased) and directed to pay Rs.200,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of both Muhammad Jaffar son of Muhammad Yar (deceased) and Baqir Khan son of Muhammad Yar (deceased) and 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. Muhammad Rafique alias Mithu son of Muhammad Sharif: Death on two counts under section 302(b)/34 PPC as Tazir for committing Qatl-i-Amd of Muhammad Jaffar son of Muhammad Yar (deceased) and Baqir Khan son of Muhammad Yar (deceased) and directed to pay Rs.200,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of both Muhammad Jaffar son of Muhammad Yar
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(deceased) and Baqir Khan son of Muhammad Yar (deceased) and 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. Allah Wadhaya alias Wada and Muhammad Sabir , the co-accused of the convicts, were, however , acquitted by the learned trial court. 2. Feeling aggrieved, Muhammad Maqbool alias Allah Wasaya son of Allah Ditta and Muhammad Rafique alias Mithu son of Muhammad Sharif (convicts ) lodged Criminal Appeal No.122 of 2020, assailing their convictions and sentences. The learned trial court submitted Murder Reference No.07 of 2020 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentences of death awarded to the appellants namely Muhammad Maqbool alias Allah Wasaya son of Allah Ditta and Muhammad Rafique alias Mithu son of Muhammad Sharif. We intend to dispose of the Criminal Appeal No. 122 of 2020 and Murder Reference No.07 of 2020 through this single judgment. 3. Precisely , the necessary facts of the prosecution case, as narrated by Mst. Zahida Bibi (PW-1), the complainant of the case, are as under:- "On 26.11.2013 on the day of Tuesday there was cattle's mandi at shahbazwala at about 08:00AM, five persons namely Jaifar , Ashaq, Jewan, Zakar-Ullan and Amin were present on Dala and Baqer was on his motorcycle &they were going to that Mandi, while Allah Wadaya, M.Rafique alias Mithu and M.Maqbool stopped the motorcycle of Baqir . Rafique alias Mithu made a fire to Baqir which hit on his temporal region of right side of head, Maqbool made a fire with repeater on Baqir that hit on his right of body & Allah Wadaya also made fire with repeater . When the Jaifar brother of Baqir tried to escape him, the accused also made fire to Jaifar while Jewan and other persons ran away and accused also made fires on said dala. Jewan made telephonic call to me that Baqir & Jaifer have been murdered & Jewan also made telephonicall (sic) to police. I and police reached at the place. Police himself wrote application Exh.P .A on which I made my thumb impression. The motive behind this occurrence is that Shahnaz Bibi has contracted marriage with my Dewar Tariq and she was residing with him, accused have murdered Jaifar and Baqir without any reason. The accused Sabir had linked with M.Rafique alias Mithue on the day of occurrence and during investigation the police got telephonic data and the accused Sabir is also involved and remained in contact with the accused at the time of occurrence. After one month I also submitted a supplementary application Exh.P .B to the local police agianst Sabir and he was arrested. " 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 appellants namely Muhammad Maqbool alias Allah Wasaya son of Allah Ditta and Muhammad Rafique alias Mithu son of Muhammad Sharif were sent to face trial. The learned trial court framed the charge against the accused on 04.06.2014 and on 21.01.2015, 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 sixteen witnesses recorded. The ocular account of the case was furnished by Jewan Khan (PW-12) and Muhammad Ashaq (PW-13). Mst Zahida Bibi (PW- 1) stated that she was told about the occurrence by the prosecution witnesses namely Jewan Khan (PW-12) and Muhammad Ashaq (PW-13) and thereafter submitted the written application (Exh. PA) for the registration of the F.I.R. Muhammad Asif 1084/C (PW-2) stated that on 26.11.2013, the Investigating Officer of the case, handed over to him two sealed parcels said to contai n blood stained earth and on 10.12.2013, he handed over the said two sealed parcels to Muhammad Arshad 288/C (PW-3) for their onward transmission to the office of the Punjab Forensic Science Agency , Lahore. Abdul Razzaq 936/C (PW-4) stated that he was handed over the non-bailable warrants of arrest of the appellant namely Muhammad Rafique alias Mithu for execution. Hassan Ali 639/HC (PW- 5) stated that on 22.12.2013, the Investigating Officer of the case handed over to him a sealed parcel said to contain a gun and on 07.01.2014, he handed over the said sealed parcel to Fayy az Ahmad 760/C (PW-6) for its onward transmission to the office of the Punjab Forensic Science Agency , Lahore. Muhammad Bilal 894/C (PW-7) stated that on 02.01.2014, he was handed over the proclamation with regard to the appellant namely Muhammad Rafique alias Mithu and on 07.01.2014, he pasted a copy of the same on the residence of the appellant namely Muhammad Rafique alias Mithu. Ejaz Rasool, Patwari (PW-8) prepared the scaled site plan of the place of
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occurrence (Exh.PC). Naseer Ahmad, ASI (PW-10) stated that on 26.11.2013, he recorded the formal F.I.R (Exh.P A/1). Rafaqat Ali 138/C (PW-11) stated that on 26.11.2013, he escorted the dead bodies of the deceased to the hospital and received the last worn clothes of the deceased from the Medical Officer. Rafaqat Ali 138/C (PW-11) further stated that on 07.01.2014, he was handed over a sealed parcel said to contain a gun which he transmitted to the office of the Punjab Forensic Science Agency , Lahore. Jamat Ali Shah, SI (PW-14) investigated the case from 18.11.2014 till 05.12.2014, arrested the appellant namely Muhammad Rafique alias Mithu on 25.11.2014, and detailed the facts of the investigation as conducted by him in his statement before the learned trial court. Sana Ullah, SI (PW-15) investigated the case from 26.11.2013 till 10.02.2014, arrested the appellant namely Muhammad Maqbool alias Allah Wasaya on 17.12.2013, and detailed the facts of the investigation as conducted by him in his statement before the learned trial court. 6. The prosecution also got Dr. Muhammad Anwar (PW-9) examined, who on 26.11.2013 was posted as Medical Officer at THQ, Hospital, Fortabbas and on the same day conducted the postmortem examination of the dead body of Muhammad Jaffar son of Muhammad Yar (deceased). Dr. Muhammad Anwar (PW-9),on examining the dead body of Muhammad Jaf far son of Muhammad Yar (deceased) observed as under:- "Injury No.1. A penetrating and lacerating wound of about 1.1cm x.7cm on the front of abdomen about 7cm above and lateral to the right side of umbilicus margins inverted, no burning or blackening was present. Injury No.2. Multiple wounds about 5 in number on the anterior surface of right thigh from inguinal region to the middle of thigh of varying size and shape margins were everted, no burning or blackening was present. Injury No.3. A penetrating and lacerating wound of about 14cmx10cm on the posterior or right thigh about 2cm from the right buttock containing ten wounds of varying size and shapes, margins were inverted, no burning or blackening was present, femur of right thigh was fractured. Injury No.4. Multiple wounds about 7 in numbers in an area of about 7cmx7cm around the anus and posterior to the left buttock, size and shapes were varying and margins were inverted, no burning or blackening was present. Injury No.5 A penetrating and lacerated wound of about 1cmx.5cm on the medial of left leg about 16cm above the ankle joint, margins were inverted, no burning or blackening present. OPINION: After doing careful external and internal examination of the dead body I am of the opinion about the cause of death that death occurred by injury No.4 collectively which were caused by firearm, injury No.1 was caused by bullet, injury No.4 by pallets which caused perforation of intestine and other viscerae which caused haemorrhage and shock sufficient to cause death, injury No.2 was also caused by pallets, injury No.5 was caused by bullets, injury No.2 was exit of injury No.3 right femur and left tibia were fractured. Injury No.2 is Ghayer Jaifah Munaqqilla and injury No.5 is Ghayer Jaifah Muniqqalla. After doing postmartum I handed over dead body , last worn clothes, postmartum report, a sealed vial containing pallets and three X rays were handed over to police, probable time between injury & death was 03 to 05 minutes and between death and postmartum about 09 to 10 hours." Dr. Muhammad Anwar (PW-9) on 26.11.2013 also conducted the postmortem examination of the dead body of Baqir Khan son of Muhammad Yar (deceased). Dr. Muhammad Anwar (PW-9), on examining the dead body of Baqir Khan son of Muhammad Yar (deceased) observed as under:- "Injury No.1. A penetrating and lacerated wound of about 7cmx.4cm on the left side of skull about 2cm above the left ear, margins were inverted, no burning and blackening was present. Injury No.2. A lacerated wound and penetrating on the postrolateral surface of skull measuring 2cmx1cm about 12cm from the right ear, margins were everted, bone below was broken and brain matter was coming out, this wound was situated
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on the right side of skull. Injury No.3. Multiple wounds about eight holes on the postrolateral surface of left shoulder in an area of about 11cmx5cm, margins were inverted, no burning or blackening was present which have penetrated the shoulder from posterior , this wound was continuous with a wound of about 12cmx7cm on the medial side of left arm about 9cm from left Axilla, margins were everted. Humerous bone of left arm was fractured and other multiple wound lacerated and penetrating on the postero-lateral surface of right side of chest, in an area of about 6cmx4cm about 12cm from the shoulder , card wad was removed from this wound, no burning or blackening was present, this wound was continuous with multiple wounds on the lateral surface of right side of chest. Margins were everted & were situated in an area of about 9x8cm on the right side of chest 7th rib on the right side was fractured. Injury No.4. Multiple wound on the postrolateral surface of left side of chest about 15cm from left axilla, these were in an area of about 10cmx14cm, margins were inverted, no burning or blackening was present, a card wad was removed from this wound 6th & 7th ribs on the left side were fractured, these wounds were continuous with multiple wounds on the anterolateral surface of front of chest on the left side in an area of about 13cmx12cm, margins were everted, pallets were removed from this wound subcutaneouly . Injury No.5. Multiple wound on the front of left knee about 5 in number in an area of about 8cmx5cm one on the medial side of knee joint measuring 2cmx.5cm and is continuous with a wound of 2cm x.6cm on the medial side of left thigh above left knee joint, these wounds were skin deep, margins were inverted, no burning or blackening was present. OPINION. After doing postmartum carefully internally as well as externally i am of the opinion about the cause of death that death occurred by injury No.1 individually as well as collectively by other injuries, injury No.1 was caused by firearm (bullet) directed from left to right side posteriorly , which is sufficient in the ordinary course of life to cause death, injuries No.3,4&5 were also caused by firearm (pallets) directed from posterior to anterior in case of injuries No.3&4 and from anterior to posterior in case of injury No.5, injury No.3 was declared as Ghayer Jaifah Hashama, injury No.4 was declared as Jaifah after doing postmartum examination, I handed over dead body , last worn clothes, postmartum report and a sealed vial containing pallets and two card wads. Probable time between injury & death was 02 to 03 minutes and between death and postmartum about 07 to 08 hours." 7. On 02.07.2015, the learned Assistant District Public Prosecutor gave up the prosecution witnesses namely Muhammad Amin, Zikar Ullah, Nasrullah 1285/C and Asghar Ali 263/C as being unnecessary and closed the prosecution evidence after tendering in evidence the report of Punjab Forensic Science Agency , Lahore (Exh.PW) regarding the analysis of the blood stained earth and the report of Punjab Forensic Science Agency , Lahore (Exh.PX) regarding the analysis of the crime empties and the recovered weapons. 8. After the closure of prosecution evidence, the learned trial court examined the appellants namely Muhammad Maqbool alias Allah Wasaya son of Allah Ditta and Muhammad Rafique alias Mithu son of Muhammad Sharif under section 342 Cr.P.C. and in answer to the question why this case against you and why the PWs have deposed against you, the appellants namely Muhammad Maqbool alias Allah Wasaya son of Allah Ditta and Muhammad Rafique alias Mithu son of Muhammad Sharif replied that they had been involved in the case falsely and were innocent. The appellants namely Muhammad Maqbool alias Allah Wasaya son of Allah Ditta and Muhammad Rafique alias Mithu son of Muhammad Sharif opted not to get themselves examined under section 340(2) Cr.P.C. and did not adduce any evidence in their defence. 9. On the conclusion of the trial, the learned Additional Sessions Judge, Fortabbas convicted and sentenced the appellants namely Muhammad Maqbool alias Allah Wasaya son of Allah Ditta and Muhammad Rafique alias Mithu son of Muhammad Sharif as referred to above. 10. The contention of the learned counsel for the appellants 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 appellants further contended that the story of the
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prosecution mentioned in the statements of the witnesses, on the face of it, is highly improbable. Learned counsel for the appellants further contended that the statements of the prosecution witnesses were not worthy of any reliance. The learned counsel for the appellants also argued that the appellants had been involved in the occurrence due to enmity . The learned counsel for the appellants finally submitted that the prosecution had 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 along with the learn ed counsel appearing on behalf of the complainant, contended that the prosecution had proved its case beyond shadow of doubt by producing independent witnesses. They further argued that the deceased died as a result of injuries suffered at the hands of the appellants. They further contended that the medical evidence also corroborated the statements of the prosecution witnesses Jewan Khan (PW-12) and Muhammad Ashaq (PW-13). They further contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offenders with the innocent in this case. Lastly , the learned Deputy Prosecutor General and the learned counsel appearing on behalf of the complainant prayed for the rejection of the appeal as lodged by the appellants namely Muhammad Maqbool alias Allah W asaya son of Allah Ditta and Muhammad Rafique alias Mithu son of Muhammad Sharif. 12. We have heard the learned counsel for the appellant, the learned Deputy Prosecutor General, the learned counsel appearing on behalf of the complainant and with their able assistance, perused the record and evidence documented during the trial. 13. As is obvious from the perusal of the prosecution evidence, the prosecution witness namely Zubaida Bibi (PW- 1) ,though became the complainant of the case ,however had not witnessed the occurrence and was told about the same by the prosecution witnesses Jewan Khan (PW -12) and Muhammad Ashaq (PW -13). 14. The mainstay of the prosecution case is the evidence of the prosecution witnesses Jewan Khan (PW-12) and Muhammad Ashaq (PW-13) who claimed themselves to have been present at the place of occurrence and having witnessed the same. It is an admitted part of the prosecution case that both the prosecution witnesses Jewan Khan (PW-12) and Muhammad Ashaq (PW-13) were not only related to each other but also to both the deceased. Both the deceased were the brothers of the prosecution witness namely Jewan Khan (PW-12) whereas the prosecution witness namely Muhammad Ashaq (PW-13), during cross-examination, stated that the deceased namely Baqir Khan was his brother in-law (Behnoi). The prosecution witness namely Zuba ida Bibi (PW-1), during cross- examination, stated as under:- "Muhammad Amin Pw is my brother-in-law (Dewar), who is real brother of Baqir Khan and Jaifar Hussain deceased. Zakir-Ullah Pw is also real brother of deceased persons. M.Ashaq Pw is brother-in-law (Sala) of deceased person, while Muhammad Ashaq is my real brother . Jewan Khan Pw is also real brother of decesaed persons. The above mentioned persons/Pws were also cultivators, they cultivated the lands of different owners within the jurisdiction of chak NO.213/9R Azafi Basti. All the above mentioned Pws are resident of chak No.213/9R, The prosecution witness namely Muhammad Ashaq (PW -13), during cross-examination, stated as under:- "Baqir is my brother in law (Behnoi) Similarly M.T ariq is also my brother in law(Behnoi)." The prosecution witnesses namely Jewan Khan (PW-12) and Muhammad Ashaq (PW-13) also admitted that the occurrence took place at a distance of 5/6 kilometres from their residences. The prosecution witness namely Jewan Khan (PW -12), during cross-examination, stated as under:- "Our house is situated at the distance of 5/6 K.M away from the place of occurrence." The above-referred portion of the cross-examination of the prosecution witness namely Jewan Khan (PW-12) reflects that the prosecution witnesses namely Jewan Khan (PW-12) and Muham mad Ashaq (PW-13) , can be validly termed as "chance witnesses" and therefore were under a bounden duty to provide a convincing reason for their presence at the place of occurrence, at the time of occurrence and were also under a duty to prove their presence by producing some physical proof of the same. Both the prosecution witnesses namely Jewan Khan (PW-12) and Muhammad Ashaq (PW-13) also claimed that at the time of occurrence they had arrived at the place of occurrence, while riding on a vehicle (Dala) on which some animals had also been loaded, which were to be transported to the area of Shabazwala . The prosecution witnesses namely Jewan Khan (PW-12) and Muhammad Ashaq (PW-13) claimed that when the vehicle which they were riding reached near the place of the occurrence,
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they saw the accused, all armed, stopping Baqir Khan (deceased), who at that time was travelling separately on a motorcycle and firing at him. The prosecution witnesses namely Jewan Khan (PW-12) and Muhammad Ashaq (PW- 13) identified the driver of the vehicle upon which the prosecution witnesses namely Jewan Khan (PW-12) and Muhammad Ashaq (PW-13) were riding at the time of occurrence as one Abbas Bhoord. The prosecution witness namely Jewan Khan (PW -12), during cross-examination, stated as under:- "The name of driver and owner of Dala is Abbas Bhoord. We left the house ten minutes prior to the occurrence i.e. 07:50 AM. We left the house after taking breakfast. My house is separate from the deceased persons. In dala three calfs and one cow. I, Jaifar deceased, M.Amin, Zakir-Ullah, M.Ashaq were sitting inside the dala along with cattle. In front seat no one was present except driver ." (emphasis supplied) In this manner , despite the fact that the driver of the vehicle ,upon which the prosecution witnesses namely Jewan Khan (PW-12) and Muhammad Ashaq (PW-13), were riding at the time of occurrence, was identified and named as one Abbas Bhoord, still the said Abbas Bhoord never appeared before the Investigating Officer of the case nor before the learned trial court though he was the most independent witness of the occurrence whose presence was even admitted by the accused .The prosecution witness namely Jewan Khan (PW-12), during cross-examination, stated as under:- "at the time of arrival of police driver of dala namely Abbas mentioned above was also present and he also appeared before the police. I.O did not record the statement of Abbas driver , we did not know why the I.O. did not record his statement. During investigation we did not produced (sic) Muhammad Abbas." The prosecution witness namely Muhammad Ashaq (PW -13), during cross-examination, stated as under:- "Driver of Dala also witnessed the whole occurrence. We did not produce the driver of Dala before police during investigation." (emphasis supplied) Sana Ullah, S.I. (PW-15), the Investigating Officer of the case, also admitted during cross-examination that at the time of his arrival at the place of occurrence, the said Abbas Bhoord was present at the place of the occurrence however still his statement was not recorded by the Investigating Officer of the case. Sana Ullah, S.I. (PW-15), the Investigating Of ficer of the case, admitted during cross-examination, stated as under:- "When I reached at the place of occurrence at that time dala & driver Abbas was present there. It is correct that during whole investigation as conducted by me I did not record the statement of Mohammad Abbas driver u/s 161 Cr.P.C or u/s 162 Cr.P.C. It is correct that Mohammad Abbas driver is an independent person and he was not relative of the parties. I did not join him in investigation as he did not appear before me." (emphasis supplied) Neither during the course of investigation nor before the learned trial court, the statement of Abbas Bhoord, the driver of the vehicle, upon which the prosecution witnesses namely Jewan Khan (PW-12) and Muhammad Ashaq (PW-13), were riding at the time of occurr ence, was recorded. This admitted failure of Sana Ullah, S.I. (PW-15), the Investigating Officer of the case, to include in the investigation Abbas Bhoord, the driver of the vehicle upon which the prosecution witnesses namely Jewan Khan (PW-12) and Muhammad Ashaq (PW-13) were riding at the time of occurrence, and the failure of the prosecution to produce the said Abbas Bhoord before the learned trial court, reflects poorly upon the veracity of the prosecution case. Article 129 of the Qanun-e-Shahadat, 1984 provides that if any evidence available with the parties is not produced, then it shall be presum ed that had that evidence been produced the same would have been gone against the party producing the same. Illustration (g) of the said Article 129 of the Qanun-e-Shahadat Order , 1984 reads as under:- "(g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it." The failure of the prosecution to produce Abbas Bhoord, the driver of the vehicle upon which the prosecution witnesses namely Jewan Khan (PW-12) and Muhammad Ashaq (PW-13) were riding at the time of occurrence, and the most natural witness, before the learned trial court, has convinced us that had he been produced before the learned trial court, he would not have supported the…
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