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Petitioner: Aqeel alias Mundri The State VS Respondent: The State Aqeel alias Mundri
Court Name: Lahore High Court Judge(s): Syed Shahbaz Ali Rizvi, Raja Shahid Mehmood Abbasi Title: Aqeel alias Mundri The State vs The State Aqeel alias Mundri Case No.: Criminal Appeal No.535 of 2011 Murder Reference No.103 of 2011 Date of Judgment:2015-11-12 Reported As: 2015 LHC 7955 Result: N/A
Judgment Syed Shahbaz Ali Rizvi, J: - This judgment shall dispose of Criminal Appeal No.535 of 2011 titled as Aqeel alias Mundri v. The State filed by the appellant against his conviction and sentence and Murder Reference No.103 of 2011 titled as The State v. Aqeel alias Mundri sent by the learned trial court for confirmation or otherwise of sentence of death awarded to the appellant under Section 374 of the Code of Criminal Procedure, 1898, being originated from the same judgment dated 02.12.2011 passed by the learned Addl. Sessions Judge, Rawalpindi in a private complaint filed by Amir Afzal, complainant (PW-1) under Sections 302, 109 and 34 PPC emanated from crime report No.192 dated 20.08.2008, offence under Sections 302, 109 and 34 PPC registered at Police Station Jatli District Rawalpindi, whereby the appellant was convicted under Section 302(b) PPC and sentenced to death with the direction to pay Rs.1,00,000/- as compensation to the legal heirs of deceased Ghulam Abbas, as envisaged under Section 544-A of the Code of Criminal Procedure, 1898 and in default thereof to undergo imprisonment for six months. The learned trial court, however, through the same judgment acquitted Waseem Ashraf and Tahir Ijaz, co-accused of the appellant while giving them the benefit of doubt. 2. Brief facts of the case, as disclosed by Amir Afzal, complainant (PW-1) in his private complaint (Mark-A), are that he is cultivator by profession and resides at Kontraila along with his parents and other family members. On 20.08.2008 at about 'Deeger' waila, he along with his father Aurangzeb, Asif Mehmood was present at wagon stop Kontraila and his brother Ghulam Abbas (deceased) was also sitting at the same stop at a distance of 25/30 yards in the shop of barbar whereas, the barber was not present in his shop. Meanwhile, Aqeel alias Mundri (appellant) armed with .12 bore
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repeater, Ibrar Hussain (since dead) armed with .12 bore repeater, Waseem Ashraf, accused (since acquitted) armed with .30 bore pistol came there. Aqeel alias Mundri (appellant) raised lalkara and made a fire shot with his .12 bore gun at Ghulam Abbas (deceased) which landed on left side of his face who fell down and in his fallen condition, Ibrar Hussain accused (since dead) made a straight fire with his .12 bore gun which landed on the left armpit of Ghulam Abbas. Waseem Ashraf, accused (since acquitted) made a fire with his .30 bore pistol at Ghulam Abbas which landed on his right hand. His brother Ghulam Abbas succumbed to the injuries at the spot. The occurrence was committed on the abetment of Tahir Ijaz, accused (since acquitted), brother of Aqeel alias Mundri (appellant) who, a few days ago, was confined in Police Station Sohawa in a false case. The occurrence, besides him (complainant) was witnessed by Muhammad Asif (PW-2) and his (complainant's) father Aurangzeb. The accused persons while decamping from the spot also made firing upon them and they saved their lives by taking shelter behind the wagon. The motive behind the occurrence, as per complaint was previous enmity of murder. He (complainant) got registered above-mentioned criminal case but the police due to dishonest investigation extended benefit to the accused which damaged his case as accused respondent No.2 in private complaint (Ibrar Hussain, since dead) was appointed as registery moharrer in revenue department who was close to District Nazim, Rawalpindi and son of District Nazim Rawalpindi, ex-MNA was influencing the investigation and being dissatisfied with the police investigation, he (complainant) filed the instant private complaint against the above said accused persons along with four police officials respondents No.5 to 8. However, the same was dismissed, to the extent of respondents No.5 to 8 namely, Mehdi Khan, Inspector/SHO, Ch. Aslam, SI, Ch. Asghar SI and Muhammad Akhtar, Inspector as having been withdrawn vide order dated 07.10.2009. 3. Aqeel alias Mundri (appellant) was arrested in this case on 23.09.2010 by Zahid Naseem, SI (CW- 10), who, on 27.09.2010, while in police custody, after making disclosure got recovered .12 bore gun repeater (P-1) along with four live cartridges which was taken into possession vide recovery memo Exh-PB. The learned trial court after recording cursory evidence of the complainant summoned the appellant along with his co-accused. During the trial, Ibrar Hussain, accused died and proceedings to his extent were abated whereas, Aqeel alias Mundri (appellant) was declared proclaimed offender and charge was framed against Waseem Ashraf and Tahir Ijaz, accused (since acquitted) on 17.06.2010. After the arrest of the appellant, amended charge was framed by the learned trial court on 28.03.2011 to which the appellant and his co-accused (since acquitted) pleaded not guilty and claimed trial. 4. The prosecution, in order to prove its case, produced as many as six witnesses during the trial whereas, eleven persons were examined as Court Witnesses. Amir Afzal, complainant (PW-1) and Asif Hussain (PW-2) furnished the ocular account of the case. Muhammad Mehrab (PW-5) furnished the evidence of abetment/ conspiracy. Amir Afzal, complainant (PW-1) and Muhammad Shahid Iqbal (PW-3) are the witnesses of recovery of crime weapon at the instance of the appellant whereas, Muhammad Ibrahim, 7702/C (CW-2) executed the proclamation of the appellant. The medical evidence was furnished by Dr. Waqar Ahmad (PW-6) who, on 20.08.2008 at 09.30 p.m, conducted the post mortem examination on the dead body of Ghulam Abbas and noted the following injuries: - "INJURY NO.1.
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Crushing fire arm wound 24 x 10 cm over the face, destroying left mandible, buccal cavity, soft and hard palate, nose, bones of skull towards right, maxilla, frontal and temporal. Soft tissue were crushed, brain crushed and flashed out. No anatomical demarcation between entry and exit due severe crushing. Direction is from left angle of mandible to upwards, back words and to the right. INJURY NO.2 A fire arm injury of entry 4 x 5 c.m over left lateral chest. 12 cm below shoulder. INJURY NO.3 A fire arm injury of exit 5 x 8 c.m. Triangular in shape in left axilla. INJURY NO.4. Auto amputation tip of right middle finger." In his opinion, the death occurred due to cardiopulmonary arrest caused by massive crushing injury to brain, sufficient to cause death in ordinary course of nature. Injuries were ante mortem and caused by firearm weapon. Probable duration between injuries and death was sudden, within minutes whereas, between death and post mortem examination 2 to 3 hours. Zahid Naseem, SI (CW-10) and Muhammad Aslam, SI (CW11) are the Investigation Officers of this case. Mehmood Shahzad, Draftsman (CW-1) prepared the scaled site plan (Exh-CW-1/A) of the place of occurrence whereas, rest of the witnesses are formal in nature. Thereafter, learned counsel for the complainant gave up Naseem Akhtar PW due to his non- availability as he had gone abroad in connection with his job and after tendering in evidence attested copies of report of Chemical Examiner (Exh-PG) and that of Serologist (Exh-PH) closed the prosecution evidence. 5. The statement of the appellant under Section 342 of the Code of Criminal Procedure, 1898, was recorded wherein, he refuted the allegations levelled against him and professed his innocence. In reply to a question that as to "Why this case against you and why the PWs deposed against you?, the appellant replied as under:- "Private PWs are not only closely related to each other rather admittedly inimical and having an animosity towards me and others. Police officials have deposed falsely against me and others being subordinate to the I.O and I.O had made connivance with the complainant party who conducted biased and dishonest investigation. Despite of the fact that occurrence took place in the shop of Naveed barber when deceased was getting shaved. Alleged shop is situated in the market but surprisingly said barber was not cited as prosecution witness and even no other private independent person came forward to support the false prosecution case which prima facie suggest that they were not ready to support the story fabricated by the complainant party at belated stage. Witnesses have admitted in cross examination that they did not witnessed the occurrence and made unbelievable statements which cannot be relied upon by a man of ordinary prudence. I have been falsely involved in this case so that compromise with the complainant party in the murder of my father case could be affected. Eye witnesses have failed to establish their presence at the place of occurrence beyond any shadow of doubt and no plausible reason of their presence has been brought on record during investigation. Witnesses have admitted during the
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cross examination that since after the registration of FIR No.48 dated 22.3.1992 none from us even extended threats to the complainant party and pursued the case and succeeded in bringing culprit to justice. FIR in the instant case had been lodged with inordinate delay which further cut roots of the prosecution case. It is also established in the evidence that the place of occurrence is not visible from the alleged place of presence of witnesses which also make whole the episode very doubtful and unbelievable. Eye witnesses have been changing their statement. The false evidence of conspiracy was fabricated against us after the registration of FIR at belated stage which also speaks volumes against the conduct of prosecution. Deceased was not man of good character who used to tease a woman folk and had many grudges. Unknown assailants committed his murder who were unknown to the Naveed Barber and other co-villagers hence they did not support our false involvement." 6. The appellant neither 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 allegations levelled against him nor did he produce evidence in his defence. 7. The learned trial Court vide its judgment dated 02.12.2011, found the appellant guilty, convicted and sentenced him as mentioned above. 8. Learned counsel for the appellant, inter alia, contends that the appellant has falsely been implicated in this case due to previous enmity; that there is delay of about three hours and forty- five minutes in reporting the matter to the police whereas, the distance between the place of occurrence and the police station is only ten kilometers; that both the eyewitnesses are interested witnesses as they are related inter se and with the deceased; that both the eyewitnesses are having inimical background with the appellant; that the medical evidence is in conflict with the ocular account; that the alleged recovery of crime weapon at the instance of the appellant is inconsequential as the report of the Forensic Science Laboratory (not got proved and dishonestly withheld by the prosecution) is negative; that the prosecution remained fail to prove the motive against the appellant; that co-accused of the appellant namely, Tahir Ijaz and Waseem Ashraf have been acquitted by the learned trial court and the evidence which has been disbelieved qua the acquitted accused persons cannot be believed against the appellant until and unless there is strong independent corroboration; that the prosecution has failed to prove its case against the appellant beyond shadow of any reasonable doubt; that this appeal may be accepted, conviction and sentence of the appellant may be set aside, he may be acquitted and the Murder Reference be answered in the negative. 9. Conversely, learned Deputy Prosecutor General assisted by learned counsel for the complainant vehemently opposes the contentions raised by the learned counsel for the appellant and, inter alia, maintains that there is no deliberate or conscious delay in reporting the matter to the police; that conviction can be passed on the basis of testimony of related and inimical witnesses if their statements are trustworthy and reliable; that prosecution case finds corroboration from the medical evidence; that the prosecution case is further corroborated by the evidence of recovery of crime weapon at the instance of the appellant; that the prosecution has successfully proved the motive part of the occurrence; that case of the appellant is distinguishable from that of acquitted co-accused persons; that the prosecution has proved its case against the appellant beyond the shadow of any reasonable doubt; that this appeal may be dismissed and the Murder Reference be answered in the affirmative.
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10. We have heard the arguments of learned counsel for the appellant, learned Deputy Prosecutor General assisted by learned counsel for the complainant and also scanned the record with their assistance. 11. As per crime report registered at 09.45 p.m, the occurrence took place on 20.08.2008 at 'Deegar waila' explained by both Ameer Afzal, complainant (PW-1) and Asif Hussain (PW-2) as 05.00 p.m. But the witnesses mysteriously kept waiting for the arrival of the police at the place of occurrence till 08.45 p.m. When on arrival of the police, the case of a brutal murder of a young near and dear one was reported while the distance between the place of occurrence and the police station is only ten kilometers. This inordinate delay remained unexplained throughout the trial. Despite, per prosecution case, the occurrence having been witnessed by Ameer Afzal, complainant (PW-1), Asif Mehmood (PW-2) and Aurangzeb (given up being dead), and when the assailants were known to them, the mentioned delay in reporting the matter, in the peculiar circumstances of this case, leads us to nothing but to infer that in fact the incident was not witnessed by them which resulted into the mentioned delay that probably occurred in procuring their presence to cite them as complainant and the witnesses by the police. We have also noticed that though, the time of post mortem examination of the deceased is given as 09.30 p.m. By the Medical Officer (PW-6) yet Asif Hussain (PW-2) has categorically stated that he along with complainant, other relatives including Muhammad Ali and Naseem PWs remained with the police for the whole night at THQ, Hospital Gujjar Khan. The dead body was handed over to them after autopsy at 'Sehri' time soon after the completion of post mortem examination which makes it evident that the post mortem examination report (Exh-PD) was prepared with ante timing and in fact it was conducted with a delay till 'Sehri Wela'. It has repeatedly been held by the Courts that such like delay normally happens when the occurrence is un-witnessed and because of the fact that police waits to procure the availability of legal heirs of the deceased to become witness in the case. Reference in this respect is respectfully made to the case of Muhammad Riaz versus The State (2009 P. Cr. L. J 1022 Lahore) wherein, this Court has observed as under: - "13. ...It is also not found correct that the F.I.R. Had been got registered with promptitude as the occurrence had allegedly taken place at about 5-00 a.m. While the postmortem examination was conducted at 1-00 p.m. And there is every possibility that the intervening period was consumed in concocting a story and to await for the relatives of the deceased, who were made witnesses subsequently, otherwise, they have failed to establish their presence at the spot..." Same view was affirmed by the Hon'ble Supreme Court of Pakistan in the case of Irshad Ahmed versus The State (2011 SCM R 1190), wherein the Hon'ble Supreme Court was pleased to observe as under:- "3. ...We have further observed that the post-mortem examination of the deadbody of Shehzad Ahmed deceased had been conducted with a noticeable delay and such delay is generally suggestive of a real possibility that time had been consumed by the police in procuring and planting eyewitnesses and in cooking up a story for the prosecution before preparing police papers necessary for getting a post-mortem examination of the deadbody conducted..." Same view was reiterated by the Hon'ble Supreme Court of Pakistan in the case of Khalid @ Khalidi and 2 others v. The State (2012 SCM R 327) and Mehmood Ahmad and 2 others v. State (PLJ 1995 SC 1). In the case of Mehmood Ahmad and 2 others, the Hon'ble Supreme Court of Pakistan was pleased to observe as under: -
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"5. ...Although in some circumstances a delay of two hours may not be of much importance yet in the facts and circumstances of this particular case as they have happened, the delay has great significance. It can be attributed to consultation, taking instructions and calculatedly preparing report keeping the names of accused open for roping in such persons whom ultimately prosecution may wish to implicate..." In the circumstances of case in hand, we are of the view that the occurrence of this case was not witnessed by PW-1, PW-2 and Aurangzeb (given up PW). 12. To prove its case through the direct evidence, the prosecution has produced complainant Ameer Afzal (PW-1) and Asif Mehmood (PW-2). Both are not only related to the deceased being brother and maternal cousin of the deceased but they are also having inimical background with the accused party and testimony of such like witnesses requires strict standard of appreciation of evidence coupled with the corroboration from an independent source that we find missing in this case. Moreover, Asif Mehmood (PW-2), at page 121 of paper book, during his cross examination, admits as under: - "...It was for chance that on the day of occurrence I was present at the place of occurrence." The reason for being present at the place of occurrence, introduced by both the witnesses for the first time during the trial through a dishonest improvement in their statements that was duly got confronted by the defence, was their intended journey to participate in 'Salana' of maternal uncle of Ameer Afzal, complainant (PW-1) at village Jero Ratial but both the witnesses are also discrepant regarding the time of same event. Even per Muhammad Aslam, SI (CW-11) investigation officer, no reason for being present at the scene of occurrence was given by the eyewitnesses during the investigation. Even otherwise, Aurangzeb PW (since dead), father of deceased and Ameer Afzal, complainant (PW-1), was the person nominated in the motive murder case FIR and being so would have been a prime target of the assailants had the occurrence taken place for the alleged motive but as mentioned by both PW-1 and PW-2 that there was no obstacle for the assailants to hit them if they intended so which reflects that either the witnesses especially Aurangzeb and Asif Mehmood (PW-2) son of Liaqat Ali, the acquitted nominated accused of the motive case FIR, were not present at the scene of occurrence or the occurrence has not been perpetrated for the motive alleged by the prosecution. The demeanor of the witness Ameer Afzal, complainant (PW-1), Ex-Army personnel, which is reflected from his statement during the cross examination that reads as under: - "...I cannot even tell whether we left the house at 12:00 noon, 2:00 pm, 3:00 pm 5:00 pm for our onward going to Jero Ratial. It is incorrect to suggest that I am an able to give even time alone for the reason that I am a false witness. I cannot even tell as to Vagon for Jero Ratial set off from Adda after every five minutes, 10 minutes, one hour or five hours..." Above, apparent unchaste conduct of the witness vividly portrays his dishonesty and mala fide. We have also given our due consideration to the statement of Ameer Afzal, complainant (PW-1), during his cross examination when he maintains as under: - "...We reached in the shop about five minutes after hearing the reports of fire shot...I had not seen
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the accused persons coming to the shop of the Barber, hence I cannot tell even today as to what mode of transportation was used by them. I cannot even tell as to towards which side accused had fled away. We only heard the report of fire shots and could not see the accused with our necked eyes as we were in hurry to save our lives. When we reached at the place of occurrence the deceased was lying on the ground, head was towards northern side and legs was towards northern side. It is correct that if any body is facing towards the Barber shop only his back would be visible from the Vagon stand. At the time of firing started by the accused persons we were behind a Vagon..." Similarly, Asif Mehmood (PW-2), during his cross examination, deposes as under: - "...When we heard the reports of fire shot we were standing near by Wagon. When we heard the reports of fire shot we immediately thought to save our lives and we hide behind a Wagon. We had been hearing the reports of fire shots behind the Wagon for about 4/5 minutes. The Wagon where we took shelter behind was vacant and there was no passengers, driver and conductor present in side the Wagon. When we were assured of the fact that accused person have went away thereafter we came from behind the Wagon and went to the place of occurrence..." These reproduced parts of statements of both the eyewitnesses lead us to infer that even if the witnesses were present at the scene of occurrence, they had not seen the actual occurrence. The stance of both the eyewitnesses that the accused persons also made firing towards them and they saved themselves by taking shelter behind the wagon, stands negated from their own self contradictory statements to the effect that no fire shot even hit the wagon. Another important aspect of this case is that as per scaled site plan (Exh-CW-1/A), the witnesses saw the occurrence from point No.3 shown in the scaled site plan and as per statement of Mehmood Shahzad, draftsman (CW-1) and Zahid Naseem, SI (CW-10), the plot lying between the shop where the occurrence took place and point No.3 from where the witnesses saw the occurrence was having a boundary wall. Mehmood Shahzad, draftsman (CW-1), during his examination in chief, states that on 07.09.2008 i.e. After about eighteen days of the occurrence, he took the notes in presence of the witnesses at the place of occurrence on the pointation of complainant and witnesses and direction of the investigation officer to prepare scaled site plan (Exh-CW-1/A) and during his cross examination, he maintains as under: - "...I have shown a plot in between the Wagon stop and the shop of occurrence. The width of the boundary wall was 9 inch. I had not taken measurements of the height of the boundary wall of the aforementioned plot. I cannot contradict if it is suggested to me that the height of the aforementioned boundary wall was 8 feet on all four sides..." While CW-10 Zahid Naseem, SI, one of the investigation officers, during his cross examination, states as under: - "...The occurrence took place in the shop of Naveed Barber. I have visited the place of occurrence and inspected the place of occurrence. It is correct that a plot is situated towards eastern side from the shop of Naveed Barber. There is a boundary wall around the aforementioned plot, however, I have not seen the gate of the said plot. The height of wall of boundary on the plot situated could be 4/5 feet approximately..." He negated the suggestion of learned counsel for the accused qua the 7/8 feet height of the
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mentioned wall, however, perusal of scaled site plan (Exh-CW-1/A) reveals the availability of wall in between point No.1 and point No.3. Though, the existence of mentioned boundary wall of intervening plot is negated by Muhammad Aslam, SI/one of the investigation officers (CW-11) at the time of occurrence yet the statements of Mehmood Shahzad, draftsman (CW-1) and Zahid Naseem, SI (CW-10) are consistent in this regard. Keeping in view the above reproduced parts of the statements of both PW-1 and PW2 wherein, they have stated that on hearing the reports of fire, they hid themselves behind the wagon and the existence of the wall in between, we have come to the conclusion that witnessing the occurrence happening at point No.1 inside the shop from point No.3 was not possible. Furthermore, Muhammad Ali (CW-9), who is maternal uncle of the deceased and the complainant, has stated, during his cross examination, in very clear terms as under: - "I do not know even till today as to who committed the murder of Abbas deceased..." It is expedient to mention here that per prosecution case, the occurrence took place inside the shop of Naveed Barber. Though according to the complaint (Exh-PA) and Ameer Afzal, complainant (PW-1), said Naveed…
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