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Petitioner: Raja Ghaneem Aabir Khan., Nemo VS Respondent: Sajjad Hussain Bhatti, Deputy JUDGMENT
Court Name: Lahore High Court Judge(s): Sadaqat Ali Khan, Sadiq Mahmud Khurram Title:Raja Ghaneem Aabir Khan., Nemo vs Sajjad Hussain Bhatti, Deputy
JUDGMENT
Reported As: 2022 YLR 1702 Result: Order accordingly Judgment JUDGMENT SADIQ MAHMUD KHURRAM, J. Mohsin Abbas son of Muhammad Anwar (convict) was tried by the learned Additional Sessions Judge, Rawalpindi along with Muhammad Ali Ramzani alias Jhoolay Lal son of Mazhar Hussain (since acquitted), the co-accused of Mohsin Abbas (convict), in case FIR No. 279 of 2015 dated 04.12.2015 registered at Police Station Kallar Syedan, District Rawalpindi in respect of offences under sections 302 and 34, P.P.C. for committing the Qatl-i-Amd of Imran Qurban son of Qurban Ali (deceased). The learned trial court vide judgment dated 28.11.2017 convicted Mohsin Abbas son of. Muhammad Anwar (convict) and sentenced him as infra: Mohsin Abbas son of Muhammad Anwar: Death under section 302(b), P.P.C. as Tazir for committing Qatl-i-Amd of Imran Qurban son of Qurban Ali (deceased) and directed to pay Rs.200,000/- 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. The convict was ordered to be hanged by his neck till dead. Muhammad Ali Ramzani alias Jhoolay Lal son of Mazhar Hussain, the co-accused of Mohsin Abbas (convict) was however acquitted by the learned trial court. 2. Feeling aggrieved, Mohsin Abbas son of Muhammad Anwar (convict) lodged Criminal Appeal No.1094 of 2017 against his conviction and sentence. The learned trial court submitted Murder Reference No.101 of 2017 under section 374, Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant Mohsin Abbas son of Muhammad Anwar. The
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complainant of the FIR namely Qurban Ali filed Criminal Appeal No. 43 of 2018 seeking to set-aside the acquittal recorded of Muhammad Ali Ramzani alias Jhoolay Lal son of Mazhar Hussain, the co- accused of Mohsin Abbas (appellant).We intend to dispose of the Criminal Appeal No.1094 of 2017, Criminal Appeal No. 43 of 2018 and Murder Reference No.101 of 2017 through this single judgment. 3. Precisely, the facts' of the prosecution case as disclosed in the statement of Qurban Ali son of Sawar Khan (PW-9) are as under:- "Stated that on 3.12.2015, at about 7.00 p.m. I was present in my house at Sahib Dhamyal village along with other family members. Meanwhile, some body called my son Imran Qurban deceased on cell No. 0303-5308839 and asked him to come to Shah Bag. Then my son Imran Qurban told me and went to Shah Bagh on his motorcycle 125 bearing No.R1R/3902 black color. We slept and awoke on the next morning but found that Imran Qurban had not returned to house. I then made calls upon cell phone of my deceased son. Despite rings, no body received the calls. At 9.00 a.m. Asad son of Manzoor ul Haq, resident of our village, came to our house and told me that lmran Qurban has been murdered by someone and his dead body is lying in fields near Shah Bagh. 1 along 'with Ehsan ul Haq and Naeem then proceeded to Shah Bagh where several persons were gathered. The dead body of my deceased son Imran was lying in the fields and several firearm injuries were present upon his body. His mobile phone was lying near him. Then police reached at the spot and I recorded my statement EX. PM before the police which bears my signatures EX.PM/2. The dead body was then shifted to hospital for post mortem. On 4.12.2015, 1 recorded my supplementary statement before the police wherein I mentioned seats of the injuries/wounds on the body of my deceased son Imran Qurban. I also received dead body of deceased son after post mortem examination vide receipt EX. PW. Investigating Officer also recorded my statement. On 18.12.2015, I made my supplementary statement before the police wherein I nominated accused Mohsin Abbas and Muhammad Ali Ramzani present in the court and I also mentioned Cell Phone numbers of accused Mohsin Abbas 0301-2934498 and that of accused Muhammad Ali Ramzani 0303-5023248 as last call on cell number of my deceased son 0303-5308839 was made by Mohsin Abbas accused present in the court and asked my son to come out of the house. Investigating Officer also recorded my statement. On 14.1.2016, I along with Ehsan ul Haq joined the investigation in the Police Station before the Investigating Officer where accused Muhammad Ali Ramzani was being interrogated in our presence. Accused Muhammad. Ali Ramzani present in the court made disclosure that he along with his co-accused Mohsin Abbas present accused had committed the murder of deceased Imran Qurban through firearm and further that he could lead to the recovery of Pistol 30 bore. On this, accused led the police party and the PWs to Tareel graveyard near Shah Bagh and got recovered Pistol 30 bore P-18 from Tareel graveyard after removing slabs of stones which was wrapped in blue colour shopper on his own pointation and produced the same before the Investigating Officer who took the same into police possession vide recovery memo EX. PT. attested by me and Ehsan ul Haq. Investigating Officer also recorded my statement." 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 Mohsin Abbas son of Muhammad Anwar along with Muhammad Ali Ramzani alias Jhoolay Lal son of Mazhar Hussain, the co-accused of the appellant (since acquitted) were sent to face trial. The learned trial court framed the charge against the accused on 15.02.2016, to which the appellant pleaded not guilty and claimed trial. 5. The complainant in order to prove its case got recorded statements of as many as fourteen witnesses. Muhammad Sohail (PW-12) stated the facts as reproduced in paragraph No.3 of the judgment Zaheer Nawaz (PW-11) and Muhammad Tariq (PW-12) stated that on 22.12.2015 at about
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7.00 p.m Mohsin Abbas son of Muhammad Anwar, the appellant and Muhammad Ali Ramzani alias Jhoolay Lal son of Mazhar Hussain, the co-accused of the appellant (since acquitted), confessed to have murdered the deceased and both the witnesses told the said fact to Qurban Ali (PW-9), the complainant of the FIR. Jamil Shah 4330/C (PW-2) stated that on 04.12.2015, the Investigating Officer handed over to him two sealed parcels said to contain blood stained earth and empties and he was also handed over the last worn clothes of the deceased, motorcycle of the deceased and mobile phones by the Investigating Officer Jamil Shah 4330/C (PW-2) further stated that on 31.12.2015, he handed over the two sealed parcels said to contain blood stained earth and empties to Abdul Majeed, SI (PW-13) for their onward transmission to the office of Punjab Forensic Science Agency, Lahore. Jamil Shah 4330/C (PW-2) further stated that on 05.01.2016, the Investigating Officer of the case, handed over to him a mobile phone, a SIM card and Rs.250/- recovered from Muhammad Ali Ramzani alias Jhoolay Lal son of Mazhar Hussain, the co-accused of the appellant (since acquitted and on the same day the Investigating Officer handed over to him a mobile phone, a SIM card and Rs. 300/-recovered from Mohsin Abbas (appellant). Jamil Shah 4330/C (PW-2) further stated that on 14.01.2016, the Investigating Officer handed over to him two sealed parcels said to contain pistols which on 20.01.2016 he handed over the two sealed parcels said to pistols to Abdul Majeed, SI (PW-13) for their onward transmission to the office of Punjab Forensic Science Agency, Lahore. Naeem Akbar, 6157/C (PW-3) stated that on 05.01.2016 a mobile phone, a SIM card and Rs.250/- were recovered from Muhammad Ali Ramzani alias Jhoolay Lal son of Mazhar Hussain the co-accused of the appellant (since acquitted) and on the same day a mobile phone, a SIM card and Rs. 300/- were recovered from Mohsin Abbas (appellant). Muhammad Naeem (PW-4) stated that on 04.12.2015, the Investigating Officer took into possession blood stained earth and empties from the place of occurrence and he further stated that during the search of the dead body of the deceased a mobile phone (P-6), two SIM cards (P-7 and P-8), white coloured shirt (P-9) and motorcycle (P-10) of the deceased were also recovered. Qazi Nayar Iqbal, patwari (PW-5) prepared the site plan of the place of occurrence (Exh.PK). Saboor Khawar 7084/C (PW-6) stated that on 03.01.2016 he collected Call Data Record relating to the phone numbers of the deceased, Mohsin Abbas son of Muhammad Anwar (appellant ) and Muhammad Ali Ramzani alias Jhoolay Lal son of Mazhar Hussain, the co-accused of the appellant (since acquitted) which was taken into possession by the Investigating Officer through recovery memo (Exh. PL/1-52) and on 05.01.2016 the Investigating Officer arrested Mohsin' Abbas son of Muhammad Anwar (appellant) and Muhammad Ali Ramzani alias Jhoolay Lal son of Mazhar Hussain, the co-accused of the appellant (since acquitted). Muhammad Ashraf (PW-7) stated that on 14.01.2016, Mohsin Abbas son of Muhammad Anwar (appellant) led to the recovery of pistol 30 bore (P-9). Zahid Raza, (PW-10) stated that on 06.01.2016 Mohsin Abbas son of Muhammad Anwar (appellant) and Muhammad Ali Ramzani alias Jhoolay Lal son of Mazhar Hussain, the co-accused of the appellant (since acquitted) pointed out the place of murder of the deceased. Abdul Majeed, SI (PW-8) investigated the case from 04.12.2015 till 26.01.2016, arrested the appellant on 05.01.2016 and narrated the facts of his investigation in his statement before the learned trial court. 6. The prosecution got examined Dr. Muhammad Mazahir Alam (PW.-1), who on 04.12.2015 was posted as Medical Officer at THQ, Hospital Kallar Syedan and on the same day conducted the postmortem examination of the dead body of Imran Qurban son of Qurban Ali (deceased ). Dr. Muhammad Mazahir Alam (PW.-1) observed as under:- "Examination of Neck Healthy and intact. Description of injuries. i Entry wound measuring 0.5 x 0.5 cm, 4 cm medial to left nipple at same level. ii Exit of wound No.1, 0.5x0.5cm back of chest mid point at the level of T-11 and T-12 iii. Entry wound measuring 0.5x0.5 cm on right side 4 cm lateral and 01 cm below the level of umbilicus.
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iv Exit wound of wound No.3 is 0.5x0.5 cm in right lumber region 5 cm right to mid line. v Entry wound 0.8x0.5cm with burning of 02cm x lcm in left iliac fossa 10 cm away from umbilicus. vi Exit wound of No.5 is measuring 4x3cm supra public region on right side. vii. Entry wound measuring 1.5xlcm with burns 5 cm below inguinal ligament on right thigh. viii. Exit wound of No.7 measuring 1.5cm x 1.5 cm, 6 cm lateral and 1.5 cm below the level of wound No.7 on right thigh. ix Entry wound measuring 1.5 x 1.5cm on lateral aspect of left thigh,14cm from left knee joint. x. Exit wound of No.9 measuring 1.5x1.5cm in front of left thigh,17 cm from knee joint. xi Entry wound 1.5 x 1.5 cm approximately in middle of lower leg Right leg. xii Exit wound of No.11 measuring 4x2.5cm with fracture of Tibia/fibula on right lower leg on medial side. Opinion. In my opinion death occurred due to cardio-pulmonary arrest caused by extensive hemorrhage. Both internal and external leading to irreversible hypo volumic shock. Injuries are inflicted by firearm weapon and ante-mortem in nature and sufficient to cause death in ordinary course of nature. Probable time of death between injuries and death was within minutes. Probable time between death and postmortem was 10 to 18 hours approximately". 7. On 07.08.2017 the learned ADPP gave up prosecution witness namely Khurram Nawaz as being unnecessary, on 25.10.2017, the learned ADPP gave up prosecution witnesses namely Ehsan ul Haq, Ch. Muhammad Waseem and Muhammad Khan on 31.10.2017 the learned ADPP gave up prosecution witnesses namely Mehrban Khan as being unnecessary and Asad as being won over and on 06.11.2017 the learned ADPP gave up prosecution witness namely Ghulam Abbas 7317/C as being untraceable. On 08.11.2017, the learned ADPP closed the prosecution evidence after tendering the report of the Punjab Forensic Science Agency, Lahore (Exh.PY) regarding the analysis of the pistol recovered from the appellant Mohsin Abbas and the empties recovered and the report of Punjab Forensic Science Agency, Lahore (Exh.PZ) regarding the analysis of the blood stained earth. 8. After the closure of prosecution evidence, the learned trial court examined the appellant namely Mohsin Abbas son of Muhammad Anwar under section 342 Cr.P.C. and in answer to question why this case against you and why the PWs have deposed against you, the appellant replied that he was innocent and had been falsely involved in the case due to suspicion. The appellant namely Mohsin Abbas son of Muhammad Anwar opted to get himself examined under section 340(2) Cr.P.C.and got examined Muhammad Hafeez (DW-1), Atif Ali (DW-2) and Mazhar Hussain (DW-3) in his defence. 9. On the conclusion of the trial, the learned trial court 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. The learned counsel fore the appellant submitted that the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible an reevant evidence. The earned counsel for the appellant further contended that the statements of prosecution witnesses were not worthy of any reliance. The learned counsel for the appellant also argued that the recoveries were full of procedural defects of no legal worth and value and result of fake proceedings. The learned counsel for the appellant finally submitted that the prosecution has totally failed to prove the case against the appellant beyond the shadow of doubt. 11. On the other hand, learned Deputy Prosecutor General contended that the prosecution has proved its case beyond shadow of doubt by producing independent witnesses. The learned Deputy Prosecutor General further argued that the deceased was murdered by the appellant who had confessed to the said crime before the witnesses. The learned Deputy Prosecutor General further argued that the recoveries from the appellant also corroborated the ocular account. The learned
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Deputy Prosecutor General 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, The learned Deputy Prosecutor General prayed for the rejection of appeal. 12. We have heard the learned counsel for the appellant, the learned Deputy Prosecutor General and with their assistance carefully perused the record and evidence recorded during the trial. 13. After consideration of contentions raised by learned counsel for the respective parties and scanning the evidence, it is pertinent that in the instant matter ocular evidence is not available. It is worth to add here that general principle is that conviction cannot be based on any other type of evidence, howsoever, convincing it may be, unless direct or substantive evidence is available because the guilt cannot be based on high probabilities, but circumstantial evidence, which is also known as indirect evidence, is an exception to above principle. The requirement of proof in such cases, based on circumstantial evidence only, is that every link has to be proved by good and convincing evidence. Above all, it is to be established on record that every piece of circumstantial evidence fits in with another piece of such evidence in the chain and corroborates each other. Admittedly it was a blind murder and no direct evidence/eye-witness is available with the prosecution to prove that it was none else but the appellant who had committed the murder of deceased. From the evidence of the prosecution available on record it is clear that the case of the prosecution hinges upon the extra-judicial confession, recovery of incriminating material i.e. recovery of pistol (P-9) and the Call Data Record. Firstly, we shall deliberate upon the evidence of extra-judicial confession. The prosecution has examined Zaheer Nawaz (PW-11) and Muhammad Tariq (PW-12) to prove the extra-judicial confession allegedly made by the appellant in this case who got recorded their statements and stated that on 22.12.2015 at about 7.00 p.m. Mohsin Abbas son of Muhammad Anwar, the appellant and Muhammad Ali Ramzani alias Jhoolay Lal son of Mazhar Hussain, the co-accused of the appellant (since acquitted),came to the shop of Zaheer Nawaz (PW-11) and confessed to have murdered the deceased and both the witnesses told the said fact to Qurban Ali (PW-9), the complainant of the FIR. One finds it hard to understand as to why the appellant would make his breast clean when apparently he was under no compulsion to oblige the prosecution which was clueless about the circumstances leading to the death of the deceased. The deceased namely Imran Qurban son of Qurban Ali had been missing from his house since 03.12.2015, his body was recovered on 04.12.2015 and the FIR (Exh.PM/1) had been registered on 04.12.2015 against unknown persons. The alleged extra-judicial confession is so detailed and comprehensive that it covers almost every aspect of the prosecution case; it is in fact an encyclopedia of the prosecution case. A man under the stress of compunction of his conscious is not supposed to give such minute details that too on the assurance of help. Moreover, according to the witnesses namely Zaheer Nawaz (PW-11) and Muhammad Tariq (PW-12), Mohsin Abbas son of Muhammad Anwar, the appellant and Muhammad Ali Ramzani alias Jhoolay Lal son of Mazhar Hussain, the co-accused of the appellant (since acquitted) requested them to arrange pardon for them from the legal heirs of the deceased. Admittedly, both Zaheer Nawaz (PW-11) and Muhammad Tariq (PW-12) admitted in their cross-examination that they did not possess any influential portfolio at that time to have any influence to beg pardon for the appellant from the complainant. They also admitted in their cross-examination that they did not try to apprehend the appellant at the time of making the said extra-judicial confession in spite of the fact that he was allegedly present in their company of his own volition, in a shop. Both the witnesses Zaheer Nawaz (PW-11) and Muhammad Tariq (PW-12) were so nave that they let the appellant leave the shop without making any effort to apprehend him or his co-accused. Imran Qurban (deceased ) happened to be related to both the witnesses Zaheer Nawaz (PW-11) and Muhammad Tariq (PW- 12) but they did not react at all to the confessional statements of the appellant and his co-accused and calmly saw them leaving, without even moving an inch. Zaheer Nawaz (PW-11) and
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Muhammad Tariq (PW-12) have not mentioned in their statements that the accused had some weapon when they visited them to confess their guilt about the murder of Imran Qurban (deceased) which could have precluded the said witnesses from apprehending the appellant and his co-accused. This conduct of Zaheer Nawaz (PW-11) and Muhammad Tariq (PW-12) was not natural in the circumstances. These peculiar facts speak volumes regarding the lack of veracity in the statements adduced by Zaheer Nawaz (PW-11) and Muhammad Tariq (PW-12) and also shows their unusual behavior and the same was otherwise contrary to the normal human behaviour. To make confession in order to give outlet to ones burden on mind and conscience is possible, however one does this only before a strong and close confidant. In the instant case, the position of the witnesses Zaheer Nawaz (PW-11) and Muhammad Tariq (PW-12) before whom the alleged extra-judicial confession was made, was such that they barely knew the accused before the alleged confession and both Zaheer Nawaz (PW-11) and Muhammad Tariq (PW-12) were neither close confidants of the accused in any manner or said to be sharing any habit or association with the accused. Both the possibilities of confessing the crime for the purpose of boasting and ventilating in the circumstances are excluded from consideration. Another reason to reject the statements of Zaheer Nawaz (PW-11) and Muhammad Tariq (PW-12) is that according to these witnesses, after the alleged confession of the appellant and his co-accused, they both told the said fact to the complainant of the case namely Qurban Ali on the same day. Muhammad Tariq (PW- 12) during cross-examination stated that they told the fact of the confession of the appellant before them to Qurban Ali (PW-9), the complainant of the FIR, within one hour of making of the same. However, we have gone through the statement of Qurban Ali (PW-9) the complainant of the FIR and the father of the deceased and find no mention in his statement that both the said witnesses namely Zaheer Nawaz (PW-11) and Muhammad Tariq (PW-12) ever told him regarding the said confession of the accused on 22.12.2015. We have reproduced the statement of Qurban Ali (PW-9) in paragraph No.2 of the judgment and a perusal of the same reveals that he did not vouch for the statements of both the said witnesses namely Zaheer Nawaz (PW-11) and Muhammad Tariq (PW-12). Even during the cross-examination , Qurban Ali (PW-9) never stated that he was told about the confession of the appellant and his co-accused by the witnesses namely Zaheer Nawaz (PW-11) and Muhammad Tariq (PW-12) on 22.12.2015 or even thereafter. Contrary to what was stated by Zaheer Nawaz (PW-11) and Muhammad Tariq (PW-12), Qurban Ali (PW-9), during cross- examination had a different story to tell and stated as under:- "The accused were identified/traced by their mobile data and then they confessed their guilt before the police. The accused confessed their guilt before the police on 14.01.2016 at 10.00 a.m. at police station. An overwhelming analysis of the prosecution evidence with regard to extra-judicial confession we have come to the conclusion that the prosecution has manufactured the said extra-judicial confession in this case to strengthen the case against the appellant after taking legal advice in this regard. In these eventualities, the story introduced by Zaheer Nawaz (PW-11) and Muhammad Tariq (PW-12) about the extra-judicial confession of the appellant seems improbable. Even otherwise, extra-judicial confession is a very weak type of, evidence and the same obviously needs impartial/strong corroboration from other independent sources which is missing in this case. The evidentiary value of the extra-judicial confession came up for consideration before august Supreme Court of Pakistan in the case of "Sajid Mumtaz and others v. Basharat and others" (2006 SCMR 231), wherein, at page 238, the Apex Court of Pakistan observed as under:- "17. This Court and its predecessor Court (Federal Court) have elaborately laid down the law regarding extra-judicial confessions staring from Ahmed v. The Crown PLD 1951 FC 103-107 up to the latest. Extra judicial confession has always been taken with a pinch of salt. In Ahmed v. The
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Crown, it was observed that in this country (as a whole) extra judicial confession must be received with utmost caution. Further, it was observed from time to time, that before acting upon a retracted extra judicial confession, the Court must inquire into all material points and surrounding circumstances to "satisfy itself fully that confession cannot but be true". As, an extra- judicial confession is not a direct evidence, it must be corroborated in material particulars before being made the basis of conviction. 18. It has been further held that the status of the person before whom the extra judicial confession is made must be kept in view, that joint confession cannot be sued against either of them and that it is always a weak type of evidence which can easily be procured whenever direct evidence is not available. Exercise of utmost care and caution has always been the rule prescribed by this Court. 19. It is but a natural curiosity to ask as to why a person of sane mind should at all confess. No doubt the phenomenon of confession is not altogether unknown but being a human conduct, it had to be visualized, appreciated and consequented upon purely in the background of a human conduct. 20. Why a person guilty of offence entailing capital punishment should at all confess. There could be a few motivating factors like: (i) to boast off (ii) to ventilate the suffocating conscience and (iii) to seek help when actually trapped by investigation. Boasting off is very rare in such-like heinous offences where fear dominates and always done before an extreme confident as well as the one who shares close secrets. To make confession in order to give vent to ones pressure on mind and conscience is another…
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