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Official Citation: 2024 LHC 1999
Court / Jurisdiction: Lahore High Court
Year of Decision: 2023
Decision Date: 2023-12-31
Parties: Muhammad Atif Naveed and others vs The State and others
Ruling Summary: This decision was rendered by the Lahore High Court on 2023-12-31, officially reported as 2024 LHC 1999. In this matter between Muhammad Atif Naveed and others and The State and others, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2024LHC1999
Court Name: Lahore High Court Judge(s): Sadaqat Ali Khan, Ch. Abdul Aziz Title: Muhammad Atif Naveed and others vs The State and others Case No.:Criminal Appeal No.827 of 2022 and Criminal Appeal No.698 of 2022 and
JUDGMENT
Reported As: 2024 LHC 1999, PLJ 2024 Cr.C. 857, 2024 PCRLJ 1421 Result: Appeal Allowed Judgment JUDGMENT Ch. Abdul Aziz, J. Muhammad Atif Naveed & Muhammad Ishfaq (appellants) along with another co-accused, namely Mulazim Hussain involved in case F.I.R No.76/2021 dated 17.03.2021 registered under Sections 302,324 & 34 PPC at Police Station Saddar Talagang, District Chakwal, were tried by learned Additional Sessions Judge, Talagang (Chakwal). Trial court vide judgment dated 27.06.2022 while acquitting the afore-said co-accused proceeded to convict and sentence both the appellants in the following terms:- (1).Muhammad Atif Naveed (appellant) Under Section 302 (b) PPC to suffer death sentence as Ta'zir. He was also directed to pay compensation of Rs.5,00,000/- under Section 544-A Cr.P.C. to the legal heirs of Arab Khan (deceased) and in case of its non-payment the same was ordered to be recoverable as arrears of land revenue and in case of default the appellant was directed to suffer 06-months simple imprisonment. (2).Muhammad Ishfaq (appellant) Under Section 324 PPC to suffer rigorous imprisonment for 10-years for attempting to commit qatl- i-amd of Bhag Bhari with fine of Rs.1,00,000/- and in default whereof to further undergo 03-months simple imprisonment. He was also directed to pay Arsh equal to 1/3rd of Diyat amount i.e. Rs.9,26,000/- for the injury caused to Bhag Bhari which was declared as Jurh Jaifah under Section 337-D PPC. However, he was given the benefit of Section 382-B Cr.P.C. Challenging their conviction and sentence, Muhammad Atif Naveed (appellant) filed Criminal Appeal No.827 of 2022, whereas Muhammad Ishfaq (appellant) preferred Criminal Appeal No.698
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of 2022. Likewise, trial court sent reference under Section 374 Cr.P.C. which was numbered as Murder Reference No.41 of 2022 for the confirmation or otherwise of death sentence awarded to Muhammad Atif Naveed (convict). Since all these matters are inter se connected, hence are being disposed of through this single judgment. 2. Precisely stated the case of prosecution as unveiled by Sultan Khan (PW.11) in F.I.R (Exh.PG/1) is to the effect that he is resident of village Rehman Abad and agriculturist by profession; that on 17.03.2021 his brother Arab Khan along with his wife Bhag Bhari and daughter-in-law (Baku) Rukhsana Bibi had come on their motorcycle to attend funeral in village Rehman Abad; that when they were returning home on their motorcycle, the complainant along with Muhammad Hussain while boarding motorcycle was following them in order to see his mother in the house of Arab Khan; that at about 4:30 p.m., when they reached the unpaved Path towards Jhamra Dhoke, Muhammad Ishfaq and Muhammad Atif Naveed on one motorcycle and Mulazim Hussain boarded on another motorcycle crossed them; that the assailants intercepted the motorcycles of the complainant and Arab Khan; that thereafter Mulazim Hussain exhorted to his co-accused for not letting anybody go alive, whereafter Muhammad Ishfaq and Atif Naveed took out pistols from the folds of their trousers while alighting from their motorcycles; that Atif Naveed fired two successive pistol shots which hit Arab Khan on his chest and adjacent to inguinal region who after the receipt of these injuries fell on the ground; that Muhammad Ishfaq also inflicted two fire shot injuries on the abdomen of Bagh Bhari who also collapsed on the ground; that the assailants decamped from the spot when the witnesses raised hue and cry; that the victims were immediately shifted to THQ Hospital where Arab Khan succumbed to the injuries he received during the occurrence and that the incident took place in pursuance of marriage dispute. 3. On 17.03.2021 Muhammad Aslam SI (PW.14) after the receipt of information about the incident reached THQ Hospital Talagang where Sultan Khan (PW.11) appeared before him and got recorded his statement (Exh.PM) which was read over to him. He examined Mst.Bhag Bhari, prepared injury statement (Exh.PJ/2) and handed over the same to Maryam Parveen 473/LC for medical examination. Subsequent thereto, he examined the dead body of Arab Khan, prepared application for postmortem examination (Exh.PE), inquest report (Exh.PF) and handed over the corpse to Waqar Tahir 669/C for postmortem examination. He also informed about the occurrence to the Crime Scene Unit Chakwal and PFSA Rawalpindi. In the meanwhile, he transmitted complaint (Exh.PM) to the police station through Ghulam Ghous 587/C for the registration of formal F.I.R. He also visited the place of occurrence, collected blood stained earth from the spots where Arab Khan and Bagh Bhari fell after the receipt of injuries through respective recovery memos. From the spot, he also collected four crime empties of .30 bore pistol (P.5/1-4) which were taken into possession through memo Exh.PQ. He also secured motorcycle (P.6) belonging to Arab Khan deceased vide memo Exh.PR. On 07.04.2021 he arrested Muhammad Atif Naveed and Muhammad Ishfaq (appellants). On 10.04.2021 Muhammad Ishfaq (appellant) made disclosure and in pursuance thereof led to the recovery of pistol .30 bore (P.7) which was taken into possession through memo Exh.PS. On 11.04.2021 Muhammad Atif Naveed (appellant) during interrogation also got recovered pistol .30 bore (P.9) which was secured through memo Exh.PT. He after complying legal formalities and recording the statements of relevant witnesses under Section 161 Cr.P.C. got prepared report under Section 173 Cr.P.C. which was submitted in the court upon which the trial commenced. 4. Prosecution in order to prove its case against the appellants produced 14-witnesses, out of whom, Dr.Awais Aftab (PW.5), Dr.Aisha Fida (PW.8), Dr.Zafar Abbas Radiologist (PW.9) and Dr.Usama Jalil (PW.10) furnished the medical evidence, Sultan Khan (PW.11) and Bhag Bhari (PW.12) narrated the ocular account and Muhammad Aslam SI (PW.14) investigated the case. The remaining PWs, more or less, were formal in nature.
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5. Dr.Awais Aftab (PW.5) on 17.03.2021 at about 8:15 p.m. conducted the autopsy of Arab Khan (deceased) and noted the following injuries:- (1) It was an entry wound with inverted margins 1 x .5 cm in diameter present on mid clavicular line about 3.5 cm from right nipple in right fourth rib area of right chest. (2) It was an entry wound with inverted margins 1 x .5 cm present in left quadrant of abdomen about 6 cm from umbilicus in superio-lateral side of left half of abdomen. (3) It was an exit wound with everted margins 1 x .5 cm present on left half of loin regions about 8 cm from midline on back, blood was oozing from the wound. (4) Another exit wound with everted margins 1 x .5 cm was present on upper part of left buttock region about 9 cm from injury No.3. On 17.03.2021 Dr.Aisha Fida (PW.8) conducted the medico legal examination of Bhag Bhari and noted the following injuries:- (1) Entry wound with inverted margins measuring 1 cm x 1 cm located 8 cm superolateral to umbilicus over left side of abdomen. No blackening over skin around wound margin. (2) Entry wound with inverted margins measuring 1 cm x 1 cm located 10 cm inferolateral to umbilicus over left side of abdomen. No blackening over skin noted around wound margin. 6. After the conclusion of prosecution evidence, the learned trial court examined the appellants under Section 342, Cr.P.C. who in response to question "why this case registered against you and why the P.Ws have deposed against you" made almost the same reply. For ready reference the reply so made by Muhammad Atif Naveed (appellant) is mentioned hereunder:- "No independent PW deposed against me and my co-accused except the co-related and close relative PW and the complainant and PWs were not present at the place of occurrence. According to Mark-DF, the complainant was present in his home at 17:33 on 17.03.2021 when he received the call from No.0311-0225700 which is the cell number of the deceased Arab Khan and the complainant was informed by his son. Then at 17:35 complainant informed his son PW Muhammad Hussain on his telephone No.0304 5969940 when he was present in his home and his son was at Dhoke Mangral and firstly he informed Muhammad Asghar at 17:32 from his cell number to his cell No.0345-5771488 and similarly he was receiving calls and making calls to all the PWs while he was present in his Dhoke and at 18:03 when he was near Kot Sarang he again contacted with the son of Arab Khan when was already reached in hospital and according to mark-DF at 22:09:58 he was present in court Road Talagang Katchari and according to this statement he was not present at the place of occurrence at the time of occurrence, nor he was present at the place of occurrence at the alleged inspection of the IO for taking rough notes at the place of occurrence. Even the other eyewitnesses were also not present at the time of visit of IO for taking rough notes. According to Crime Scene Unit Report CD P.4, the occurrence was committed in a deserted place as the CD P.4 which copy of provided to the accused after observing it the snap shoot mark DG and Mark DF from where the blood stained earth was taken in presence of officials of Crime Scene Unit, there is lot of gross and deserted place is visible which is shown at five different points and from that evidence it is established that the deceased was murdered in deserted place by some unknown assailants and occurrence was not seen by any witness. Moreover, there is long standing litigation between the parents of the accused and the complainant party and due to such suspicion they wrongly roped me and my co-accused in this case and other are officials PWs are official witnesses and due to their exigency of their services they deposed falsely. Moreover, I was not present at the time of occurrence at the place of occurrence. I am innocent and has no nexus with the commission of alleged offence. " The appellants neither made statement under Section 340(2) of Cr.P.C. nor produced any evidence in their defence. On the conclusion of trial, the appellants were convicted and sentenced as afore- stated, hence the instant criminal appeals and murder reference.
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7. It is contended by learned counsel for the appellants that the incident in question was committed by some unknown persons and the appellants were falsely implicated in the case on account of suspicion; that even the crime report was registered later in the night but through tampering of record it was made to look as if promptly registered; that the ocular account narrated by the two eyewitnesses suffers from multiple discrepancies rendering them unworthy of any credence; that it reasonably emerges from the careful perusal of documents tendered in evidence that the F.I.R was registered much after the postmortem examination; that the statement of Bagh Bhari was recorded with mysterious delay of 12-days and on this score alone her deposition cannot be made basis for upholding the convictions of appellants; that Sultan Khan was proved during trial to be a chance witness, a factor sufficient to cast doubt about his claim of having witnessed the incident; that the medical evidence is also at variance with the ocular account and the doubt emerging therefrom is to be extended to the appellants and that since prosecution miserably failed to prove its case against the appellants, thus their convictions are to be set-aside. 8. On the other hand, learned law officer assisted by learned counsel for the complainant came forward with the submissions that the case is arising out of a promptly lodged F.I.R wherein appellants are ascribed the role of causing injuries to Arab Khan and Bhag Bhari; that the guilt of appellants is well established from confidence inspiring ocular account furnished by two witnesses including injured Bhag Bhari; that the medical evidence provides full support to the ocular account and no conflict is arising out of it; that the corroboration can well be sought from the duly proved motive and positive report of PFSA according to which the weapons recovered from the appellants matched with the crime empties secured from the spot and that since the prosecution successfully proved its case against the appellants, thus the convictions awarded to them be upheld. 9. Arguments heard. Record perused. 10. The roots of the case are traced in an unfortunate incident which occurred on the afternoon of 17.03.2021. During this incident, Arab Khan, his wife Bagh Bhari and daughter-in-law Rukhsana Bibi were confronted with a murderous assault mounted by a bunch of assailants comprising upon Atif Naveed, Muhammad Ishfaq and Mulazim Hussain. The aggression of the assailants culminated in the homicidal death of Arab Khan (deceased) and firearm injuries to his wife Bagh Bhari (PW.12). So far as, Rukhsana Bibi (given up) is concerned she remained lucky enough to return scratchless from this incident. It is equally important to mention here that the incident took place when Arab Khan (deceased) along with Bagh Bhari (PW.12) and Rukhsana Bibi were on way back to their house while boarding a motorcycle after attending the funeral in nearby village. 11. According to record, the crime scene was situated at a distance of 15-kilometers from Police Station Talagang and after about 15 to 30 minutes of the incident, the victims were shifted to THQ Hospital Talagang. Muhammad Aslam SI (PW.14) reached THQ Hospital and recorded the statement of Sultan Khan (PW.11) which was transcribed as complaint (Exh.PM) at about 6:55 p.m. and immediately thereafter was dispatched to police station for the registration of formal F.I.R (Exh.PG). On the basis of afore-mentioned data it was vociferously argued by learned counsel for the complainant that the promptly registered F.I.R out-rightly excludes the possibility of any fabrication and false implication. We are not oblivious of the fact that the practice of stopping the Station Diary/Rozenamcha as well as the F.I.R Register is rampant in our system of criminal investigation through which even the delayed F.I.Rs are shown to have been promptly registered. We examined the record with utmost care and came across multiple factors which cast strong doubt upon the acclaimed prompt registration of F.I.R. Firstly, it is noticed from the police proceedings mentioned at the bottom of F.I.R (Exh.PG) that complaint (Exh.PM) was drafted in THQ Hospital and was transmitted to Police Station Saddar Talagang through Ghulam Ghous 587/C. Inevitably, for proving the registration of F.I.R without any uncalled for delay the evidence of afore-
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mentioned Ghulam Ghous 587/C had crucial importance but surprisingly he was not produced as witness during trial of the case. As this was not enough, Muhammad Aslam SI (PW.14) candidly admitted that during investigation the statement of Ghulam Ghous Constable was not recorded under Section 161 Cr.P.C. and for this omission he failed to offer any explanation. The importance of such omission can be highlighted from the observation of the Supreme Court of Pakistan in the case reported as Minhaj Khan v. The State (2019 SCMR 326) which is as under:- "...... the non-production of Constable Jehanzeb Khan who took the written complaint and was an eye-witness of the occurrence and of the recovery memorandums; and the inexplicable conduct of the Complainant PW-2 in not proceeding to the police station himself to register the FIR are matters of concern and collectively of incredulity. The conclusion therefrom that we draw is that the prosecution had failed to establish its case against the petitioner beyond reasonable doubt, or, at worst, that the petitioner was involved in a false case for ulterior reasons." The inquest report is a document prepared under Rule 35 of Chapter 25 of Police Rules, 1934 and its circumspective perusal gives traces about the manner in which investigation of a homicide case is conducted on the first day and besides that it also gives clue about the veracity of prosecution's claim regarding the prompt registration of F.I.R. The inquest report comprises upon 24-columns which are followed by an additional page meant for incorporating the brief facts of the occurrence emerging from the contents of complaint. According to the sequence of proceedings required to be carried out by the police in a murder case, firstly the statement of complainant for the registration of F.I.R is recorded and then the spot inspection is carried out, whereafter the inquest report is to be prepared. Columns No.1 to 24 of inquest report are meant to mention various factors which include the place of incident, the time of receipt of its information, the detail of injuries on the corpse, the kind of weapon used and the articles recovered from the crime scene. The most important aspect is the brief facts of the case required to be mentioned on its last page. The inquest report is a document which is essentially required to be provided to the medical officer for holding of postmortem examination. The purpose of providing inquest report to the medical officer before the autopsy apparently is aimed at safeguarding the record from becoming vulnerable to the impurity of tampering through which the delayed F.I.Rs are shown to have been promptly registered. In the instant case, we have noticed that on the last page of inquest report (Exh.PF) the brief facts of the case are not mentioned properly. The relevant page gives no information about the identity of the assailants, the weapons used in the commission of crime, the manner in which the incident occurred and above all its time. The most important aspect noticed from the last page of inquest report is to the effect that no reference about Bagh Bhari (PW.12) having received injuries in the incident is made. The same incomplete inquest report was provided to the medial officer before the commencement of autopsy. The question of vital importance arises that if at all the statement of complainant (Exh.PM) had been recorded before the postmortem examination, then why the tale of incident was not mentioned on the page of inquest report (Exh.PF) meant for incorporating the brief facts of the case. All the aforementioned omissions give vent to an inescapable conclusion that till the time corpse of Arab Khan was subjected to postmortem, the veil had not been lifted from the identity of the assassins. We have no doubt in our minds that the F.I.R was registered much after the postmortem examination and through this malpractice the eyewitnesses gained advantage of adjusting their statements in accordance with locale and nature of injuries pointed out by the medical officer. It will not be out of place to mention here that in accordance with the guidelines given by Dr.S.Siddiq Husain in Chapter-III MEDICO-LEGAL POSTMORTEM EXAMINATION of A Text Book of Forensic Medicine and Toxicology, the medical officer is required to sign and examine each page of the inquest report before the postmortem examination. The Supreme Court of Pakistan in the case reported as Mst. Yasmeen v. Javed and
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another (2020 SCMR 505) while dilating upon the non-mentioning of brief facts in the inquest report observed as under:- "In addition to the said findings, it has been observed by us that the occurrence in this case, as per prosecution, took place on 19.02.2005 at 10:00 p.m. The matter was reported to police in the intervening night of 19/20.02.2005 at 1.00 a.m. (night). The postmortem examination on the dead body of Mst. Naheeda (deceased) was conducted by Dr. Faiqa Elahi (PW.7) on 20.02.2005 at 8.50 a.m. Even if delaying conducting the postmortem examination on the dead body of deceased, in the circumstances of the case, is ignored, the fact remains that in the relevant column of inquest report "brief history of crime", nothing is mentioned regarding facts of the case despite the claim of prosecution that matter was reported to police within three hours of the occurrence i.e. in the intervening night of 19/20.02.2005 at 1.00 a.m. (night). This circumstance alone casts serious doubts about the veracity of prosecution case against the respondents and the claim of eye-witnesses Mst.Yasmeen (PW.5) and Mst.Kabalo (PW.6) to have witnessed the occurrence". Another observation of the Division Bench of this Court given in the case reported as Wasi Haider v. The State (2022 PCrLJ 1695) on account of its relevancy is being mentioned hereunder:- "The circumspective scrutiny of record unfortunately reveals that the case in hand is also riddled with the evil of record tampering. The inquest report (Exh.CW.3-4), as per record, though was provided to medical officer before autopsy but its page meant for incorporating brief facts of case does not contain the tale of incident mentioned in FIR (Exh.CW4/1). We have anxiously noted that on the relevant page of inquest report neither the name of any perpetrator is mentioned nor the manner in which the crime occurred is stated even tentatively. This omission gives a strong clue that the FIR was not registered till the holding of postmortem examination. We feel a pressing need to reiterate here that murder incident took place at 10:15 p.m., the complaint (Exh.PB) was drafted at 2:30 a.m., whereas autopsy was conducted at 3:00 a.m. The question arises that if at all before holding of autopsy the complaint (Exh.PB) was complete in all respects then why its contents were not mentioned in column of inquest report meant for the brief facts. A conclusion is inevitable that till holding of autopsy the complaint (Exh.PB) was still in process of preparation apparently through consultation and deliberation etc." 12. The facts mentioned in the preceding para prompted us to scan the ocular account with extreme care and caution. The saga of homicide incident was furnished by Sultan Khan (PW.11) and Bagh Bhari (PW.12) who were related with Arab Khan (deceased) as brother and wife respectively. Out of these witnesses, Bagh Bhari (PW.12) claimed to have endured firearm injuries on her abdomen and the foregoing fact was described by the prosecution as affirmative proof of her truthful deposition. We acknowledge that the receipt of grievous hurt by an eyewitness in the murder incident though is a factor which reflects positively upon his presence at the spot but it is not a conclusive proof about the truth of his deposition. For handing down guilty verdict to an accused in such incident, the testimony of an injured eyewitness is still required to be tested on the touchstone of the principles laid down for the appraisal of evidence. To say that an injured witness of murder incident seldom tells lie might be true in a case of single accused but is an overstatement when the number of assailants is more than one. It will wholly be unjust to raise the superstructure of conviction on the deposition of injured witness, without subjecting it to strict test of scrutiny for adjudging his credibility. If any reference in this regard is needed that can be made to the case reported as Amin Ali v. The State (2011 SCMR 323) wherein the Supreme Court of Pakistan observed as under:- "Certainly, the presence of injured witnesses cannot be doubted at the place of incident, but the question is as to whether they are truthful witnesses or otherwise, because merely the injuries on the person of P.Ws. would not stamp them truthful witnesses."
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In another case reported as Nazir Ahmad v. Muhammad Iqbal and another (2011 SCMR 527), the Supreme Court of Pakistan while examining the case of an injured witness held as under:- "It is settled law that injuries of PWs are only indication of his presence at the spot but are not affirmative proof of his credibility and truth. See Said Ahmed's case (1981 SCMR 795) and Muhammad Pervez's case (2007 SCMR 670)." It is noticed that the incident occurred on 17.03.2021 whereas 161 Cr.P.C. statement of Bagh Bhari (PW.12) was recorded on 29.03.2021. The afore-mentioned delay of about 12-days in recording of 161 Cr.P.C. statement was attributed during trial by the prosecution to the precarious medical condition of Bagh Bhari (PW.12). As per record, Bagh Bhari (PW.12) initially was brought to THQ Hospital Talagang and was provided medical treatment by Dr.Ayesha Fida (PW.8) from where she was referred to DHQ Hospital, Rawalpindi. As per prosecution claim, Bagh Bhari (PW.12) also remained admitted in CMH Rawalpindi but no supporting evidence in this regard was led during trial. Nevertheless, Muhammad Aslam SI (PW.14) moved an application (Exh.PX) and thereby sought the opinion that whether Bagh Bhari (PW.12) is medically fit to make a lucid statement upon which it was reported by Brig. Muhammad…
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