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Petitioner: Muhammad Pervaiz VS Respondent: The State
Court Name: Lahore High Court Judge(s): Sadiq Mahmud Khurram Title: Muhammad Pervaiz vs The State Case No.: (1) Criminal Appeal No. 306 of 2013 (2) Criminal Revision No. 155 of 2013 Date of Judgment:2021-02-01 Reported As: 2021 LHC 116 Result: N/A
JUDGMENT
JUDGMENT SADIQ MAHMUD KHURRAM, J. The appellant namely Muhammad Perva iz son of Muhammad Younis was tried by the learned Sessions Judge, Attock in case FIR No. 153 of 2010 dated 26.03.2 010 registered at Police Station Hazro, District Attock in respect of an offence under section 302 PPC for committing the Qatl-i-Amd of Zahid Nawaz son of Noshehry Khan (deceased). The learned trial court vide judgme nt dated 29.06.2013 convicted Muhammad Pervaiz son of Muhammad Younis (convict) and sentenced him as infra: Muhammad Pervaiz son of Muhammad Younis: Imprisonment for Life under section 302(b) PPC as Tazir for committing Qatl-i-Amd of Zahid Nawaz son of Noshehry Khan (deceased) and directed to pay Rs.10,00,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased, in case of default thereof, the convict was further directed to undergo simple imprisonment for six months. 2. Feeling aggrieved, Muhammad Pervaiz son of Muhammad Younis (convict) lodged the Criminal Appeal No.306 of 2013 assailing his conviction and sentence. Mst Ghazala Khan, the widow of the deceased of the case namely Zahid Nawaz son of Noshehry Khan, filed Criminal Revision 155 of 2013 seeking the enhancement of the sentence of the convict namely Muhammad Pervaiz son of Muhammad Younis. This Court intends to dispose of the Criminal Appeal 306 of 2013 and Criminal Revision No. 155 of 2013 through this single judgment. 3. Precisely , the necessary facts of the prosecution case, as narrated by the prosecution witnesses in their statements before the learned trial court are that on 26.03.2010 at about 3.30 p.m., the deceased namely Zahid Nawaz and the witnesses namely Mehtab Shah (PW-10), Muhammad Tufail (given up), Arshad Khan (PW-11) and some other persons were present at the place of occurrence for the purpose of measuring the 3 Marlas of the land purchased by Muhammad Tufail (given up) from Mehtab Shah (PW-10) when Muhammad Pervez son of Muhammad Younis (appellant) came at the place of occurrence and directed Zahid Nawaz (deceased) to stop the
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measurement upon which Zahid Nawaz (deceased) directed him to approach Meht ab Shah (PW-10) with regard to any of his grievance, however , the appellant namely Muhammad Pervez took out his pistol and fired at the person of Zahid Nawaz (deceased), hitting him on the left side of the chest and subsequen tly Zahid Nawaz died as a result of the said injury . 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 appellant namely Muhammad Pervez son of Muhammad Younis was sent to face trial. The learne d trial court framed the charge against the accused on 08.06.2010, to which the appellant pleaded not guilty and claimed trial. 5. The prosecution in order to prove its case got as many as twelve witnesses examined. Mehtab Shah (PW-10) and Arshad Khan (PW-11) gave evidence regarding the ocular account. Abdul Khaliq, A.S.I. (PW-1) stated that on 26.03.2010 he recorded the formal FIR (Exh. PA/1). Fakhar-uz-Zaman 1203/C (PW-2) stated that on 31.03.2010 Muhammad Tayyab 800/1 1C (PW-7) handed over to him two sealed parcels said to contain blood stained earth and empties for their onward transmission to the office of the Chemical Examiner to the Government of Punjab, Lahore and the Punjab Forensic Science Agency , Lahore, respectively however the parcel containing the empties was returned and he took the same to the Punjab Forensic Science Agency , Lahore again on 05.04.2010. Riasat Ali, Patwari (PW-3) prepared the scaled site plan of the place of occurrence (Exh. PB). Naveed Ahmad 2006/C (PW-4) stated that on 19.04.2010 Muhammad Tayyab 800/1 1C (PW-7) handed over to him one sealed parcel said to contain a pistol for its onward transmission to the office of Punjab Forensic Science Agency , Lahore. Muhammad Basharat 2295/C (PW-5) stated that on 26.03.2010 he got Zahid Nawaz (the injured later deceased) examined by the Medical Officer and also received the last worn clothes of the deceased. Bashir Ahmad (PW-6) stated that on 26.03.2010 the Investigating Officer of the case took into possession the blood-stained earth and empties from the place of occurrence in his presence and on 27.03.2010 he identified the dead body of the deceased. Abdul Ghaf far (PW-8) stated that on 11.04.2010 the appellant namely Muhammad Pervez led to the recovery of the pistol (P-3). Abdul Khaliq, SI (PW-12) investigated the case from 26.03.2010 till 23.04.2 010, arrested the accused on 01.04.2010 and narrated the facts of the investigation conducted in his statement before the learned trial court. 6. The prosecution also got Dr. Kashif Azad (PW-09) examined, who on 26.03.2010 was posted as Medical Officer at THQ Hospital Hazro and on the same day at about 4.25 p.m examined Zahid Nawaz (then injured later deceased and observed as under:- "Stated that on 26.03.2010, I was posted as Medical Officer, at THQ Hospital, Hazro. On the same day, at about 4:25 pm, Zahid Nawaz son of Noshehry Khan aged about 35-years, Caste Pathan, resident of Adal Zai, was produced before me in injured condition by the police for medical examination and from external examination, he was middle aged man in a drowsy state, responding to voice, clothes were socked (sic) with blood, having corresponding mark of injury , present on Qameez and Bunyan. I observed following injury on his body:- i A firearm injury about 1.5cm x 1cm about 2.5cm below nipple on left side of the chest, margins were inverted and there was also blackening of the margins. X-ray of chest was advised. The patient was referred to DHQ Hospital, Rawalpindi to surgeon for management and opinion. Injury was kept under observation. Probable duration between injury and examination was about half an hour and it was caused with firearm weapon. Ex. PG is the correct carbon copy of the MLR whereas Ex.PG/1 is the injury statement prepared by the police and endorsed by me. Ex.P.G/2 is the application moved by the I.O whether the injured was in a position to make the statement or not, at which I opined that the injured was able to make statement. After the medical examination, I handed over shirt and Bunyan to Mohammad Basharat constable." Dr. Kashif Azad (PW-09), on 27.3.2010 at about 6.30 p.m conducted the post mortem examination of the dead body of Zahid Nawaz (deceased) and stated as under:- "On 27.03.2010, at about 06:30 pm, I conducted post-mortem examination of the dead body of Zahid Nawaz Khan son of Nosheri Khan, Caste Pathan, aged 40- years, resident of Adal Zai. The dead body was brought by police and was identified by Noroz Khan and Mohammad Bashir Pw. On external examination, it was the dead body of adult man of good built. Eyes and mout h were closed. Rigor mortis started to appear . Patches of post-mortem
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staining on the back of body was noted. Wearing blue colour Shalwar and Qameez. I found following injury on the body:- (i) A firearm entry wound 1.5 cm x 1 cm, with irregular edges, left anterior chest below the nipple. (ii) A firearm exit wound 7 mm with irregular everted edges on right lower chest, posteriorly . A chest drainage tube wound about 2 cm was present at 6 cm lateral to injury No.1. CRANIUM AND SPINOL (sic) CORD. All the organs of cranium and spinal cord were found normal and healthy . THORAX. Chest walls and pleura was found punctured corresponding to injury No.1 and chest intubation on left side of chest. Left lung was punctured and bruised. Rent in left ventricle near apex. All other organs of thorax were found normal and healthy . ABDOMEN. Walls of the abdomen, midline laparotom y wound stitched was present. Rent on left side of diaphragm. Rent in stomach in lesser curvature and was empty . Laceration was observed on right and left lobe of liver. All other organs of abdomen were found normal and healthy . MUSCLES, BONES & JOINTS. No abnormality was found in muscles, bones and joints. OPINION. In my opinion cause of death was due to shock, loss of blood in thoraco abdominal cavity and externally due to rupture of heart & liver, caused by firearm injury No.1. Injury was ante-mortem and was sufficient to cause death in the ordinary course of nature. The probable time that elapsed between injury and death was about 27-hours, whereas between death and post- mortem was about four hours." 7. On 12.06.2012, the learned DDPP gave up prosecution witness namely Muham mad Islam, Constable as being unnecessary and closed the prosecution evidence after tendering in evidence the report of the Chemical Examiner to the Government of Punjab, Lahore (Exh. PL) regarding the blood-stained earth, the report of the Serologist (Exh. PM) regarding the blood-stained earth and the report of Punjab Forensic Science Agency , Lahore (Exh. PN) regarding the comparison of pistol and empties. 8. After the closure of prosecution evidence, the learned trial court examined the appellant namely Muhammad Pervez son of Muhammad Younis 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, he replied that he was innocent and had been falsely involved in the case. The appellant namely Muhammad Pervez son of Muhammad Younis opted not to get himself examined under section 340(2) of the Cr. P.C, however , produced the copy of a suit along with order sheet (Exh.DC/1-2) as evidence in his defence. 9. On the conclusion of the trial, the learned Sessions Judge, Attock convicted and sentenced the appellant as referred to above. 10. The contention of the learned counsel for the appellant precisely is that 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 appellant, further contended that the story of the prosecution mentioned in the F.I.R., on the face of it is highly improbable. Learned counsel for the appellant further contended that the statements of the witnesses were not worthy of any reliance. The learned counsel for the appellant also submitted that the recovery was full of procedural defects, of no legal worth and value and result of fake proceedings. The learned counsel for the appellant also argued that the appellant had been involved in the occurrence due to enmity . The learned counsel for the appellant finally submitted that the prosecution has totally failed to prove the case against the accused beyond the shadow of a doubt. 11. On the other hand, the learned Deputy District Public Prosecutor along with the learned counsel for the widow of the deceased contended that the prosecution has proved its case beyond a shadow of a doubt by producing independent witnesses. They further argued that the deceased died as a result of an injury suffered at the hands of
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the appellant. They further contended that the medical evidence also corroborated the statements of Mehtab Shah (PW-10), Arshad Khan (PW-11) and the dying declaration of Zahid Nawaz (deceased). They further argued that the recovery of the pistol (P-3) from the appellant namely Muhammad Pervez son of Muhammad Younis also corroborated the ocular account. They contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offender with the innocent in this case. Lastly , they prayed for the rejection of the appeal. 12. I have heard the learned counsel for the appellant, the learned counsel for the widow of the deceased, the learned Deputy District Public Prosecutor and with their assistance, carefully perused the record and evidence recorded during the trial. 13. According to the prosecution story , the occurrence took place on 26.03.2010 at about 3.30 p.m within the area of Mouza Adalzai which was at a distanc e of 4 kilometers from the police station. The formal FIR (Exh.P A/1) was registered on the statement (Exh.P A) made by Zahid Nawaz (then injured later deceased). The said statement (Exh.P A) made by Zahid Nawaz (then injured later deceased) was recorded by Abdul Khaliq, S.I. (PW-12) who stated in his statement (examination-in-chief) that on 26.03.2010, after getting information of the occurrence, he reached the THQ Hospital Hazro where Zahid Nawaz (then injured later deceased) was present in the emergency room of the said hospital and he record ed his statement (Exh.P A) which was reduced into writing and sent for registration of the formal FIR. Before giving a conclusive finding regarding the legal worth of such statement of the deceased, I deem it appropriate to have a look at the law relevant on the subject. Such a statement is relevant under the provision of Article 46 of Qanun-e-Shahadat Order , 1984. The term dying declaration, generally , stands for the statement of a person who is in expectation of his death and relates to the causes of his death. Such a statement is admissible in evidence though its maker does not appear in the witness box so as to provide an opportunity of cross-examination to an accused facing the charge of his murder . The admissibility of the dying declaration is an exception to the general rule which makes inadmissible any hearsay evidence. Dying declaration can be made the basis for awarding conv iction provided it is free from the menace of prompting and tutoring and is proved to have been made by none other than the deceased himself. The paramount reason for attaching importance and credibility to such a statement is the presumption that a dying person seldom lies. For the recording of dying declaration no hard and fast rules are laid down, however , a glean through the provisions of the Police Rules, 1934 reveals that a procedure and brief guidelines are provided in chapter-25, Rule 21 which are being reproduced below for advantage sake:- "25.21. Dying declarations.-(1) A dying declaration shall, whenever possible, be recorded by a Magistrate. (2) The person making the declaration shall, if possible, be examined by a medical officer with a view to ascertaining that he is sufficiently in possession of his reason to make a lucid statement. (3) If no magistrate can be obtained, the declaration shall, when a gazetted police officer is not present, be recorded in the presence of two or more reliable witnesses unconnected with the police department and with the parties concerned in the case. (4) If no such witnesses can be obtained without risk of the injured person dying before his statement can be recorded, it shall be recorded in the presence of two or more police officers. (5) A dying declaration made to a police officer should, under section 162, Code of Criminal Procedure, be signed by the person making it." From above, it can be gathered that prefe rably such a statement is to be recorded either by a Magistrate or in the presence of a gazetted Police Officer and in the absence thereof in front of two or more unconcerned reliable witnesses. However , if neither of the above-mentioned persons is available, only then such a statement can be recorded in the presence of two or more police officers. The perusal of the record reveals that the Investigating Officer made no effort to procure the attendance of any unconnected witness, though it could easily be done from the concerned hospital. In the instant case, according to the Medico Legal Examination Certificate (Exh. PG), Zahid Nawaz (deceased) was brought to the hospital in an injured condition on 26.03.2010 at about 4.25 p.m by the police and later Zahid Nawaz (deceased) succumbed to his injuries on 27.03.2010 at about 2.30 p.m. During this period, Zahid Nawaz (deceased) was provided with extensive medical treatment. It has not been mentioned in the
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statement of Zahid Nawaz (Exh. PA) that how and by whom he was brought to the hospital in the injured condition and reached the said hospital after about an hour of the occurrence. According to the Medico Legal Examination Certificate (Exh. PG), it was Muhammad Basharat 2295/C (PW-5) who had brought Zahid Nawaz (deceased) to the hospital, however , Muhammad Basharat 2295/C (PW-5) during cross-examination stated that when they reached the hospital Zahid Nawaz (deceased) was already present there in an injured condition and was being examined by the Medical Officers. Mehtab Shah (PW-10) during his statement before the learned trial court did not state as to who had taken Zahid Nawaz (deceased) from the place of occurrence to the hospital but only stated that he remained outside the hospital in which Zahid Nawaz (deceased) was taken to. Mehtab Shah (PW-10) during cross- examination also stated that one Tufail (not produced) had said that Zahid Nawaz (deceased) should be shifted to the hospital without a cot. However , a perusal of the statement of Mehtab Shah (PW-10) reveals that he never mentioned anything with regard to the shifting of Zahid Nawaz (deceased) to the hospital from the place of occurrence by him. Arshad Khan (PW-11) during cross-examination, however , claimed that Zahid Nawaz (deceased) was accompanied by him, Mehtab Shah (PW-10), Muhammad Tufail, Noroz Khan, Tahir and Bashir (all not produced) from the place of occurrence to the hospital. This claim of Arshad Khan (PW-11) is contradicted by the Medico Legal Examination Certificate (Exh. G) available on record wherein it has been clearly mentioned that Zahid Nawaz (deceased) was brought to the hospital by police and in the relevant column of the said Medico Legal Examination Certificate (Exh. PG) the name of any relative accompanying the then injured Zahid Nawaz (deceased) has not been recorded. The statements of the prosecution witnesses are contradictory to each other as well as the documentary evidence available on record putting a cloud of uncertainty over the circumstances regarding the recording of the statement (Exh. PA). Zahid Nawaz, deceased remained alive and admitted in the hospital for a considerable time, however , his purported statement (Exh. PA) was not attested by any official working at the hospital. Furthermore, according to the police proceedings as mentioned in the statement (Exh. PA), Abdul Khaliq, S.I. (PW-12), after getting information of the occurrence reached the THQ Hospital Hazro along with Mohsin Ali 1131/C, Muhammad Basharat 2295/C (PW-5) and Ansar Ali 2096/C, where Zahid Nawaz (then injured later deceased) was present in the emergency room of the said hospital and Abdul Khaliq, S.I. (PW-12) recorded his statement (Exh. PA). The prosecution during the trial of the case got Muhammad Basharat 2295/C (PW-5) examined, however a perusal of the statement of the said Muhammad Basharat 2295/C (PW-5) reveals that he stated nothing regarding the assertion of the prosecution witnesses that the state ment (Exh.P A) of Zahid Nawaz (then injured later deceased) was recorded in his presence by Abdul Khaliq, S.I. (PW-12), the Investigating Officer of the case. Muhammad Basharat 2295/ C (PW-5) further stated during cross-ex amination that the Investigating Officer of the case left the police station at about 3.30/3.45 p.m and they reached the hospital within five minutes and found that Zahid Nawaz (deceased) was present in the emergency ward of the said hospital in an injured condition. Muhammad Basharat 2295/C (PW-5) further stated during cross-examination that the Investigating Officer of the case, remained present at the hospital for about 20-25 minutes, whereas he himself remained present at the hospital as many as 30-35 minutes and left the hospital at 4.45 p.m, however , still did not state anything regarding the recording of the statement (Exh. PA) of Zahid Nawaz (deceased). According to the Medico Legal Examination Certificate (Exh. PG), it was Muhammad Basharat 2295/C (PW-5) who had brought Zahid Nawaz (deceased) to the hospital. The statement of Muhammad Basharat 2295/C (PW-5) was not even challenged by the prosecution. This utter failure of Muhammad Basharat 2295/C (PW-5) to mention the recording of the statement (Exh. PA) of Zahid Nawaz (deceased) in his presence conclusively proves that none was recorded and the document (Exh. PA) is a fake and manipulated piece of paper having no evidentiary value. The other two witnesses namely Mohsin Ali 1131/C, and Ansar Ali 2096/C who had accompanied Abdul Khaliq, S.I. (PW-12) to the hospital were not even produced by the prosecution to support the fact that any statement of Zahid Nawaz (deceased) was recorded by Abdul Khaliq, S.I. (PW-12) after he arrived at the hospital. Mehtab Shah (PW-10) also did not state that the oral statement (Exh. PA) was recorded in his presence and during cross-examination stated that one Tufail had told him that Zahid Nawaz (deceased) had made a statement before the police. As mentioned earlier , the said Tufail was never produced before the learned trial court nor joined the investigation of the case. Abdul Khaliq, S.I. (PW-12) during cross- examination stated that he never record ed the statement of said Tufail
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during the investigation of the case. Besides the above-mentioned fact, it is established on record that Mehtab Shah (PW-10) did not make any statement to support the fact that the statement (Exh. PA) of Zahid Nawaz (deceased) was ever recorded or that he had witnessed the recording of the same. Arshad Khan (PW-11), while appearing before the learned trial court, made an improvement in his statement earlier recorded by the Investigating Officer of the case, and stated that the statement of Zahid Nawaz (deceased) was recorded by the police in an injured condition. Arshad Khan (PW-11), during cross-examination, was duly confronted with his earlier statement (Exh. DB) and it was brought on record that the said fact had not been recorded in his earlier statement (Exh. DB). Arshad Khan (PW -11) was cross-examined and the learned trial court observed as under:- "I had stated before the police that Zahid Nawaz was shifted to the Hospital, where he made statement to the police in injured condition. (confronted with Ex.DB, not so recorded.)." The said improvement made by Arshad Khan (PW-11) was substantial and was made with regard to crucial aspect of the prosecution evidence. Arshad Khan (PW-11) introduced improvement in his statement with regard to the recording of the statement (Exh PA). The credit of the witness namely Arshad Khan (PW-11) stands impeached. Article 151 of the Qanun-e-Shahadat Order 1984 provides as under: - "151. Impeaching credit of witness. The credit of a witness may be impeached in the following ways by the adverse party , or, with the consent of the Court, by the party who calls him: (1) by the evidence of persons who testify that they, from their knowledge of the witness, believe him to be un worthy of credit; (2) by proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence ; (3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted ;" As Arshad Khan (PW-11) introduced dishonest, blatant and substantial improvement to his previous statement (Exh.DB) and was duly confronted with his former statement, hence his credit stands impeached and Arshad Khan (PW-11) cannot be relied upon on being proved to have deposed with a slight, intended to mislead the court. The august Supreme Court of Pakistan in the case of "Muhammad Ashraf Vs. State" (2012 SCMR 419) took serious notice of the improvements introduced by witnesses and rejected their evidence . The august Supreme Court of Pakistan in a recent case reported as "Muhammad Mansha Vs. The State" (2018 SCMR 772) has enunciated the following principle: "Once the Court comes to the conclusion that the eye witnesses had made dishonest improvements in their statements then it is not safe to place reliance on their statements. It is also settled by this Court that whenever a witness made dishonest improvement in his version in order to bring his case in line with the medical evidence or in order to strengthen the prosecution case then his testimony is not worthy of credence". The august Supreme Court of Pakistan in the case reported as Muhammad Arif Vs. The State (2019 SCMR 631) has enunciated the following principle: "It is well established by now that when a witness improves his statement and moment it is observed that the said improvement was made dishonestly to strengthen the prosecution, such portion of his statement is to be discarded out of consideration. Having observed the improvements in the statements of both the witnesses of ocular…
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