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Petitioner: IRFAN ALI VS Respondent: The STATE
Court Name: Lahore High Court Judge(s): Aalia Neelum, Sardar Muhammad Sarfraz Dogar Title: IRFAN ALI vs The STATE Case No.: Criminal Appeal No,544-J of 2014 and Murder Reference No,160 of 2010 Date of Judgment:2015-10-12 Reported As: K.L.R. 2016 Criminal Cases 166, 2016 YLR 2767 Result: Appeal allowed
JUDGMENT
JUDGMENT ' MISS AALIA NEELUM, J.---Irfan Ali son of Farzand Ali, Caste Rajpoot, resident of Street No,3, Pathan Chowk, Faisalabad along with Sultan-ul-Haq son of Islam-ul-Haq (since acquitted), Muhammad Azam son of Muhammad Sarwar (since acquitted), Muhammad Saeed son of Muhammad Siddiq (since acquitted), Zahid Pervaiz son of Fazal Muhammad (appellant in Crl. Appeal No,476 of 20.10 already acquitted on account of compromise), Ashiq Ali son of Muhammad Siddique (since dead as bumped off in a police encounter on 14.07.2006 and case was stood abated to his extent vide order dated 02.03.2009) and Asim Ali son of Liaqat Ali Ansari (since P.0) were involved in Private Complaint filed under Sections 302, 396, 1.48, 149 P.P.C. (on 12.03.2007 by Mehboob Alam) and were tried by Syed Muzaffar Ali Shah, Additional Sessions Judge, Gojra. The learned trial court seized with the matter in terms of judgment dated 17.02.2010 convicted Irfan Ali (appellant) under Sections 302(b)/34, P.P.C. And sentenced him to death as Ta'zir along with the compensation of Rs,2,00,000/- payable to the legal heirs of Adeela Kausardeceased and in default thereof, to further undergo six months imprisonment. The accused (appellant) was further convicted under Sections 302(b)/34, P.P.C. And sentenced to death as Ta'zir along with the compensation of Rs,2,00,000/- payable to the legal heirs of Mst. Kausar Parveendeceased and in default thereof, to further undergo six months imprisonment. The accused (appellant) was also convicted under Sections 324/34, P.P.C. And sentenced to rigorous imprisonment for a period of 10 years with payment of Rs,20,000/- as fine and in default whereof, further undergo rigorous imprisonment for two years. The conviction of the accused (appellant) was also made under Sections 337-D/34 and sentenced to 10 years rigorous imprisonment and to pay Arsh i,e, one third of Diyat Rs,1,02,070/-. The convict shall be kept in jail and dealt with in the same manner as if sentence to simple imprisonment until
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Arsh is paid in full. The accused (appellant) was further convicted under Sections 394/34, P.P.C. And awarded rigorous imprisonment for life with fine of Rs,20,000/- and in case, the fine amount is not realized, he (appellant) will further undergo for two years rigorous imprisonment. The benefit of Section 382-B of Cr.P.C. Was also extended in favor of the accused (appellant). 2. Feeling aggrieved by the judgment of the learned trial court, Irfan Ali, appellant has assailed his conviction by filing Criminal Appeal No,544-J/2014. The learned trial Court forwarded Murder Reference No,160/2010 for the confirmation of death sentence inflicted upon the convict, namely, Irfan Ali and Asim Ali, co-convict. As both the matters are arising out of one and the same judgment of the learned trial court, therefore, these are being disposed of through this consolidated judgment. 3. It would not be out of context to mention here that the legal heirs of deceased, Mst. Kausar Bibi and Mst. Adeela Kausar had entered into compromise with Zahid Pervaiz (appellant in Crl.Appeal No,476 of 2010) and in terms of order dated 23.08.2010 passed in Crl. Misc. No,1391-M/2010, he was acquitted of the charge. 4. Precisely, the story as contained in the private complaint by Mehboob Alam (PW-1) is that on 09.06.2006 at about 11:00/11:30 p.m. (noon) he (the complainant), his wife Mst. Kausar Parveen and his daughters namely Adeela Kausar and Shahnila Mehboob were present in their house situated at Chak No,241/GB, Abadi Behram, Tehsil Gojra where his brother-in-law (wife's brother) Zahid Pervaiz came to his house and started conversation. After few minutes of his (Zahid Pervaiz) arrival, the door was knocked, Zahid Pervaiz had opened the door and brought three persons i,e, (1) having saltish colour, smart body of average height with round face, afterwards he was known as Asim Ali son of Liaqat, (2) second one having saltish colour, stout body of average height with round face aged 19/20 years, afterwards known as Irfan Ali son of Farzand Ali and (3) third one having saltish colour, stout body having average height with long face aged about 25/26 years. All were wearing shirts and trousers. Zahid Pervaiz told the complainant and his wife Mst.Kausar Parveen that they had brought some news about his (the complainant) son namely Muhammad Zubair who was working at Rawalpindi and the accused persons also showed card of Muhammad Zubair. On hearing this, the wife of the complainant Mst. Kausar Parveen came in the residential room. Before they could understand, three accused once took out their pistols and threatened that if they made hue and cry or moved they would shoot them. Ashiq Ali (since dead) guarded them whereas the other two started searching the room and extorted Rs,1, 05,000/-and gold ornaments weighing 10- tolas and also robbed of Rs,2000/-and mobile phone of the complainant lying in his pocket. In the meanwhile, Adeela Kausar who was standing in the courtyard raised hue and cry whereupon accused Ashiq All (since dead) made straight firing on the daughter of the complainant Adeela Kausar. Thereafter on the indication of Zahid Pervaiz (complainant of the FIR), Irfan Ali-accused fired at the complainant which landed at supropubic region, whereas accused Asim Ali (P.0) fired at Mst. Kausar Parveen which landed at her belly. The daughter of the complainant Adeela Kausar died at the spot. Thereafter Zahid Pervaiz after getting admitted the complainant and Mst. Kausar Parveen in the hospital, became complainant and got registered the case. Besides the complainant, her daughter namely Mst. Shahnila Mehboob (PW-2) is also eyewitness, she (Mst. Shahnila Mehboob) informed him that the accused persons had done firing upon him and his wife on the indication of Zahid Pervaiz. Thereafter Sadiq (given up-PW) and Arshad Mehmood (PW-3) told that Saeed Ahmad (since acquitted) had brought Asim Ali (P.0) and Irfan All (the appellant) to the house of Ashiq All (since dead) and had a meeting with Zahid Pervaiz and Muhammad Azam (since acquitted) at Bus Stop of Chak No,241/G.B, Gojra where-after they (all accused) came together to the house of the complainant. Zahid Pervaiz (since acquitted) firstly entered into house whereas Muhammad Azam (since acquitted) kept on watching during the occurrence while standing at roof of his house.
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5. Earlier on the oral complaint (Ex.PQ) of Zahid Pervaiz (later on arrayed as accused in the private complaint) FIR, (Ex . PQ/l) was lodged. Tersely, the prosecution story as alleged in the FIR (Ex.P.Q/1) is that on 09.06.2006 at about 2:00 p.m., he was present in his sister's house namely Mst. Kausar Parveen situated at Chak No,241/GB (Gahra/Behram), Tehsil Gojra whereas three unknown persons i,e, (1) firstly having saltish colour, sma rt body of average height with round face having age of 20/22 years, wearing shirt and trouser, (2) secondly saltish colour, stout body with average height having round face aged 19/20 years wearing shirt and trouser, (3) thirdly saltish colour, stout body of average height with long face, aged 25/26 years, wearing shirt and trouser, came there on a motorcycle and while showing card of Muhammad Zubair (his nephew) working at Savour Fast Food Hotel, Rawalpindi and told that they had been sent by him whereupon they were made to sit in the drawing room and were served drinks by the complainant. Thereafter, the visitors in a strange manner had informed that Muhammad Zubair had met with a serious incident due to which he was much worried, therefore, discussion might be done inside the house and in consequence thereof, they were brought in a residential room of the house whereas Mst. Kausar Parveen and Adeela Kausar (since died) were present but all of a sudden, the unknown visitors took out their pistols and one of them stood at their guard whereas the other two started to search the house and in result whereof, they extorted Rs,1,05,000/-and gold ornaments weighing 10-Tolas. They also took out Rs,500/-along with National Identity Card from the pocket of the complainant and also snatched the wrist watch of the complainant besides robbing Rs,2000/-, mobile phone and National Identity Card from Mehboob Alam. In the meantime, Adeela Kausar (since died) raised hue and cry upon which the invader mentioned at serial No,3 fired at her which landed at her right flank, who fell down, whereupon, the complainant and others made a noise but the transgressor mentioned at Serial No,2 fired at Mehboob Alam which landed at lower part of his pubic area whereas the trespasser mentioned at serial No,1, made fire at Mst.Kausar Parveen which hit under navel of her belly. Thereafter while making firing, they were decamped on their motorcycle and Adeela Kausar died at the spot whereas Mst. Kausar Parveen and Mehboob Alam were escorted to the hospital, from where, both were referred to the Allied Hospital, Faisalabad on 12.06.2006 but unluckily, Mst. Kausar Parveen succumbed to the injuries on the same day. 6. After the alleged occurrence, the complainant rushed towards the police station after leaving Master Fazal Muhammad and Muhammad Rafaqat near the dead body of deceased, Adeela Kausar for reporting the occurrence and he (complainant) met with Abdul Ghafoor, S.I. At Pul Nehar Chak No, I 78-GB (PW-11), who along with his companions, was on patrolling duty there. The complainant made his statement before Abdul Ghafoor, S.I. 7. Abdul Ghafoor, S.I. (PW-11) reduced into writing oral complaint (Ex.PQ) of the complainant (Zahid Pervaiz) and the complainant signed as a token of its correctness and after completion of police karawi , Abdul Ghafoor, S.I. (PW-11) sent the same to the police station through Muhammad Siddique 537/C whereupon formal FIR (Ex.PQ/1) was chalked out by Atta Ullah, S.I. (PW-9). Thereafter investigation was entrusted to Abdul Ghafoor, S.I. (PW-11), who visited the place of occurrence and prepared the injury statement (Ex.PM) after inspecting the dead body of deceased, Adeela Kausar, he also prepared inquest report (Ex.PN) and deployed Talib Hussain, A.S.I (PW-10) for getting conducted postmortem on the dead body of Adeela Kausar. After postmortem, (PW-10) produced police papers, copy of postmortem report and last worn clothes of the deceased before him (PW-11) qua which, he (PW-11) prepared the recovery memo, which was attested by Talib Hussain, A.S.I. (PW-10), Rafaqat All and Fazal Muhammad. Thereafter he (PW-11) obtained blood in a sealed parcel from the place of dead body of deceased, Adeela Kausar and prepared recovery memo (Ex.PR). Likewise, blood was also preserved in a sealed parcel from the place of injuries of Mst. Kausar Parveen while preparing recovery memo (Ex.PS). Similarly, blood was also taken in a sealed parcel from the place where Mehboob Alam was injured, qua which recovery memo (Ex.PT)
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was prepared. He (PW-11) also took into possession an empty of 30-bore pistol from the place where Adeela Kausar, deceased was fired vide recovery memo (Ex.PU). Thereafter the Investigating Officer (PW-11) also took into possession a crime empty of 30-bore pistol wherefrom Mst. Kausar Parveen was fired and prepared recovery memo (Ex.PV). Similarly, he (PW-11) also took into possession and preserved into a sealed parcel a crime empty of 30-bore pistol where Mehboob Alam was fired at and prepared recovery memo (Ex.PX). Thereafter he (PW-11) prepared the visual site plan of place of alleged occurrence as (Ex.PY) and recorded the statements of five witnesses under Section 161 of Cr.P.C. On 10.06.2006, he (PW-11) recorded the statements of Mehboob Alam and Mst. Kausar Parveen under Section 161, Cr.P.C. The Draftsman, Kazim Hussain Gilani (PW-7) took rough notes on 13.06.2006 and thereafter on 15.06.2006 he (PW-7) produced scaled site plans (Ex.PL) and (Ex.PL/1) before the Investigating Officer (PW-11). On 23.06.2006, the Investigating Officer (PW-11) arrested the accused-Muhammad Azam, Sultan-ul-Haq, Irfan Ali and Asim Ali. During personal search of accused-Muhammad Azam, two mobile phones of Samsung (P-1) and (P-2) along with sim and another Nokia mobile along with sim were recovered, which were taken into possession vide recovery memo (Ex.PB). Thereafter he (PW-11) also took into possession motorcycle (P-3) bearing registration No,RNA-9394 through recovery memo (Ex.PC) while preparing a site plan with regard to the place of recovery thereof as (Ex.PC/1). On 26.06.2006, he (PW-11) arrested the accused-Muhammad Saeed and during personal search of him, mobile phone Nokia (P-3) with a live sim along with another sim was recovered vide recovery memo (Ex.PD). On 05.07.2006, Irfan Ali (appellant) got recovered a 30-bore pistol (P-6) along with 8 live bullets (P-7/1 to 8) from underneath a sheesham tree, which were taken into possession by him (PW-11) vide recovery memo (Ex.PF) whereas site plan of place of recovery was prepared as (Ex.PF/1). The other accused- Asim Ali also got recovered a pistol 30-bore (P-5) along with six live bullets (P-4/1 to 6) from underneath the acacia tree which were taken into possession through recovery memo (Ex.PE) and site plan qua place of recovery (EX.PE/1) was also prepared by him (PW11). Thereafter on 06.07.2006, accused Irfan Ali had led to the recovery of looted amount from underneath the mango tree wrapped in a black colour shopper worth Rs,20,000/-, 15 notes of Rs,1000/- denomination and 10 notes of Rs,500/- denomination along with I.D. Card bearing No,33301-2116698-5 of complainant- Zahid Pervaiz and in this regard, recovery memo (Ex.PJ) was prepared. On the same day, accused- Asim Ali also got recovered the looted amount from underneath of a mango tree, wrapped in a black colour shopper containing 17 notes of Rs,1000/- denomination and 6 notes of Rs,500/- denomination along with I.D. Card bearing No,33301-2079189-5 of Mehboob Alam, which were taken into possession vide recovery memo (Ex.Ph) and site plan of place of recovery was prepared as (Ex.PH/1). Thereafter Muhammad Azamaccused during the interrogation, got recovered his share from the looted amount from his sitting room where a bed of Nawar was lying, out of which he picked Rs,45000/-, (P-9/1-9) 40 notes of Rs,1000/- denomination and 10 notes, of Rs,5000/- denomination whereas the Investigating Officer (PW-11) prepared recovery memo (Ex.PG) along with site plan as (Ex.PG/1). On 07.07.2006, Muhammad Saeed-accused got recovered the looted wrist watch (P-14) which was taken into possession vide recovery memo (Ex.PK). 8. Having found the appellant guilty, the Investigating Officer prepared report under section 173, Cr.P.C. And sent the same to the Court of Session en-routed through the learned Illaqa Magistrate as provided under Section 190(2), Cr.P.C. Later on, Mehboob Alam (PW-1) filed a private complaint before the learned Illaqa Magistrate on 09.06.2006 with considerable delay before the learned Illaqa Magistrate during trial of the challan case with changed mode and manner of occurrence. The learned Illaqa Magistrate sent the same to the worthy Sessions Judge, Toba Tek Singh for its entrustment to the court of competent jurisdiction. The learned trial court after hearing preliminary arguments, summoned all the accused persons to face their trial.
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9. After appearance of the accused persons, they were formally charge sheeted by the learned trial court in terms of order dated 17.05.2008 respectively, to which they pleaded not guilty and claimed trial. The prosecution in order to advance its case, produced as many as twelve (12) prosecution witnesses. Mehboob Alam (PW-1) is the complainant of the case, whereas his testimony was supplemented by Shahnila Mehboob (PW-2). 10. Dr. Subah Seemi, (PW-8), had conducted the postmortem examination upon the dead body of deceased, Adeela Kausar on 09.06.2007 at 11.00 p.m. And found the following injuries:--- ' INJURIES 1. A lacerated wound of entrance by fire arm 1 cm x 1 cm on lower part of outer side of right chest. Margins of wounds were black and inverted. 2. A lacerated wound of fire arm of exit 2 x 1.5 cm on the upper part and front of middle of chest. 3. An abrasion of 2 x 1 cm was present on the back of left elbow. ' OPINION. ' According to the doctor's opinion, cause of death in this case was hemorrhage and shock resulted from injury Nos.1 and 2 as narrated above. These injuries are sufficient to cause death in ordinary course of nature. Both the injuries were ante-mortem in nature and were caused by fire arm weapons. Probable time between injuries and death is 1/2 hour. Time between death and post mortem examination, was about 8 hours. Postmortem report is Ex.PO and diagram is Ex.PO/1 and Ex.PO/2. ' Rest of the prosecution witnesses are formal in nature. 11. On 10.04.2009 and 14.04.2009, learned counsel for the complainant gave up PWs Haji Muhammad Sadiq and Khalid Saleem 283/C being un-necessary. Thereafter learned Assistant District Public Prosecutor produced the report of Chemical Examiner pertaining to the bloodstained earth of Mst. Kausar Parveen as Ex.P.AA, report of Serologist as Ex.P.BB, report of Chemical Examiner, Lahore with regard to bloodstained earth pertaining to Adeela Kausar Ex.P.CC and report of Serologist as Ex.P.DD, report of Forensic Science Laboratory, Lahore Ex.PZ and dying declaration of Mst. Kausar Parveen as Ex.P.EE and closed the prosecution evidence on 14.05.2009. 12. The appellant was also examined under Section 342, Cr.P.C. Neither the appellant opted to appear in person as his own witness under Section 342(2), Cr.P.C. Nor he produced any defence witness. While replying to a question, why this case and why the PWs have deposed against him, the appellant-Zahid Pervaiz made the following deposition:-- ' I am innocent. I was present in the house of Mehboob Alam the complainant as a relative where Irfan and others the dacoits of this case on the pretext of passing some message of Muhammad Zubair my bhanja residing at Rawalpindi entered into the house of Mehboob Alam and where they committed dacoity and with 30 bore pistols fired at Adila Kausar my bhanji, Mst. Kausar my sister and injured Mehboob Alam the complainant and they also robbed of Rs,500/-my I.D. Card and my wrist watch. The dacoits also robbed of Rs,2000/- .D Card and mobile phone belonging to the complainant. The accused after the occurrence when decamped from the spot, I got recorded complaint Ex. PQ to Abdul Ghafoor, S.I. On 09.06.2006 at 4:15 p.m. At bridge of kanal chak No,178/GB whereupon case FIR No,205 of 2006 was registered at P.S. Saddar Gojra and the case was investigated into. During the course of investigation, when the looted property was recovered from the dacoits, I got the cash on superdari but Mehboob Alam insisted to deliver him the cash recovered from the dacoits and on my refusal a dispute took place between me and Mehboob Alam and due to that dispute, he lodged the present complaint against me as an accused. The case property presently is with Mehboob Alam by the order of the court. The complaint Ex.P-Q during the trial of this case has been relied upon by the prosecution of this case as a true document. During the investigation I and Abdul Manaf told the name of the dacoits as Sultan-ul- Haq, Ashiq Ali, Irfan, Asim, Muhammad Azam and Saeed where after the police interrogated them
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arrested them, recovered the case property and found them guilty and have challaned them in the state case. Ashiq Ali is since P.O. 13. The learned trial court after evaluating the evidence available on record in light of arguments advanced from both sides, found the prosecution version proved beyond shadow of reasonable doubt resulting into conviction of the appellant (Irfan Ali, along with others, Asim Ali and Zahid Pervaiz) whereas Sultan-ul-Haq, Muhammad Azam and Muhammad Saeed were acquitted of the charge. 14. We have heard the arguments advanced by the learned counsel for the parties. We have also gone through the record with able assistance of learned counsel for the appellant as well as learned Deputy Prosecutor General. 15. The entire prosecution case against the appellant-Irfan Ali and Asim Ali (proclaimed offender) rests on the oral evidence of Mehboob Alam (PW-1) and Mst. Shahnila Mehboob (PW-2) who claimed to be an eye-witness to the incident which took place about 2.00 p.m. On 09-06-2006 wherein Mst. Adeela Kausar succumbed at the spot due to fire arm injury, whereas, Mst. Kausar Parveen and Mehboob Alam received fire arm injuries and they were shifted to the Allied Hospital, Faisalabad. Later on, on 12-06-2006 Mst. Kausar Perveen also succumbed to the injuries at Hospital. The learned counsel for the appellant contended that Mehboob Alam (PW-1) and Mst. Shahnila Mehboob (PW-2) had made major contradictions and dishonest improvements in the prosecution case and on this count their testimonies should be rejected as same has no substance. We, therefore, carefully scrutinized the same. The injured complainant-Mehboob Alam (PW-1) deposed that he, his wife namely Mst. Kausar Parveen (the deceased) and his daughters namely Mst. Adeela Kausar (the deceased) and Shahnila Mehboob (PW-2) were present in his house when his brother-in-law Zahid Pervaiz arrived at his house and they started conversation. After few minutes of the arrival of Zahid Pervaiz, the door was knocked whereupon Zahid Pervaiz opened the door and three young accused persons entered into his house, later their names were revealed i,e, (1) the accused having saltish color, smart body of average height with round face, known as Asim Ali (proclaimed offender), (2) the accused having saltish color, stout body of average height with round face aged 19/20 years, known as Irfan Ali (the appellant) and (3) the accused having saltish color, stout body of average height with long face, known as Ashiq Ali (since died), all were wearing shirts and trousers. At the cost of repetition it is relevant to mention here that the complainant- Mehboob Alam (PW-1) deposed that Zahid Pervaiz told him (the complainant) and his wife Mst. Kausar Parveen (the deceased) that they (the accused persons) brought some news about his (the complainant) son namely Muhammad Zubair who was working at Rawalpindi and the accused persons also showed card of Muhammad Zubair. On hearing this, the wife of the complainant Mst. Kausar Parveen (the deceased) came in the residential room. Before they could understand, the accused persons abruptly took out their pistols and threatened that if they made hue and cry or moved they would be shot. Ashiq Ali (since dead) guarded them whereas the other two accused started searching the room and extorted Rs,1,05,000/- and gold ornaments weighing 10-tolas, Rs,2000/- and mobile phone of the injured complainant (Mehboob Alam PW-1) lying in his pocket. In the meanwhile, Mst. Adeela Kausar (the deceased) who was standing in the courtyard raised hue and cry whereupon the accused Ashiq Ali (since dead) made straight firing on her (Adeela Kausar). Thereafter on the indication of Zahid Pervaiz (since acquitted) Irfan Ali (the appellant) fired at the injured complainant (Mehboob Alam PW-1) which landed at supropubic region, whereas the accused Asim Ali (proclaimed offender) fired at Mst. Kausar Parveen (the deceased) which landed at her belly. Besides the injured complainant-Mehboob Alam (PW-1), her daughter namely Mst. Shahnila Mehboob (PW-2) is also eye-witness. As per prosecution version Mst. Shahnila Mehboob (PW-2) informed the injured complainant (PW-1) that the accused persons
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had made firing upon the injured complainant and his wife on the indication of Zahid Pervaiz (since acquitted). 16. We straightway noted that the injured complainant-Mehboob Alam (PW-1) has admitted during cross-examination and deposed that, "it is correct that regarding this occurrence FIR No, 205/06 was registered at the Police Station Saddar Gojra." It is not out of context to mention here that it can be noticed that initially the case projected in FIR was that the accusedZahid Pervaiz (the complainant of FIR) made oral complaint (Ex.PQ) at Pul Nehar Chak No, 178-GB to Abdul Ghafoor, S.I, who was on patrolling duty along with other police personnel as the first information report (Ex.PQ/1) in the case, on the basis of which the investigation was commenced. A perusal of the said report (Ex.PQ/1) shows that the incident had taken place inside the house of Mehboob Alam (PW-1). The FIR (Ex.PQ/1) had been lodged against three (3) unknown accused persons who were armed with firearms and…
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