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Petitioner: Liaqat and 4 others VS Respondent: The State and another
Court Name: Lahore High Court Judge(s): Tariq Saleem Sheikh, Sadiq Mahmud Khurram Title: Liaqat and 4 others vs The State and another Case No.: Criminal Appeal No. 262 and Murder Reference No. 32 of 2015 Date of Judgment:2017-11-07 Reported As: 2020 YLR 1188 Result: Appeal allowed
JUDGMENT
JUDGMENT SADIQ MAHMUD KHURRAM, J.---The appellants namely Liaqat son of Manzoor, Ghulam Abbas son of Elahi Bakhsh, Aslam son of Zahoor, Muhammad Shafi son of Sher Muhammad alias Khandou and Ismail son of Muhammad Ali were tried by the learned Additional Sessions Judge, Multan in case instituted upon the private complaint titled "Muhammad Riaz v. Liaqat and 5 others" (relating to FIR No. 497 of 2011 dated 31.07.2011 registered at Police Station Saddar Shujjabad District Multan in respect of offences under sections 302, 364, 148 and 149, P.P.C.) for committing the Qatl-i-Amd of Muhammad Ijaz son of Haji Allah Bakhsh (deceased). The learned trial court vide judgment dated 30.04.2015 convicted Liaqat son of Manzoor, Ghulam Abbas son of Elahi Bakhsh, Aslam son of Zahoor, Muhammad Shafi son of Sher Muhammad alias Khandou and Ismail son of Muhammad Ali (convicts) and sentenced them as infra: 1) Liaqat son of Manzoor: i) Death under section 302(b), P.P.C. as Tazir for committing Qatl-i-Amd of Muhammad Ijaz son of Haji Allah Bakhsh (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 six months of simple imprisonment. The convict was ordered to be hanged by his neck till dead. ii) Imprisonment for life under sections 364/149, P.P.C. and fine of Rs.50,000/- and in case of default of payment of fine, directed to further undergo simple imprisonment for three months. iii) Rigorous imprisonment for three years under section 148, P.P.C. All the sentences of imprisonment were ordered to run concurrently. 2) Ghulam Abbas son of Elahi Bakhsh: i) Imprisonment for life under sections 302(b.)/149, P.P.C. as Tazir for committing Qatl-i-Amd of Muhammad Ijaz son of Haji Allah Bakhsh (deceased) and directed to pay Rs.100,000/- as compensation under section
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544A, Cr.P.C. to the legal heirs of the deceased, in case of default thereof, the convict was further directed to undergo six months of simple imprisonment. ii) Imprisonment for life under section 364/149, P.P.C. and fine of Rs.50,000/- and in case of default of payment of fine, directed to further undergo simple imprisonment for three months. iii) Rigorous imprisonment for three years under section 148, P.P.C. The appellant was extended the benefit provided under section 382-B of the Code of Criminal Procedure, 1898 and all the sentences were ordered to run concurrently. 3). Aslam son of Zahoor i) Imprisonment for life under sections 302(b)/149, P.P.C. as Tazir for committing Qatl-i-Amd of Muhammad Ijaz son of Haji Allah Bakhsh (deceased) and directed to. pay Rs.100,000/- as compensation under section 544A, Cr.P.C. to the legal heirs of the deceased, in case of default thereof, the convict was further directed to undergo six months of simple imprisonment. ii) Imprisonment for life under sections 364/149, P.P.C. and fine of Rs.50,000/- and in case of default of payment of fine, directed to further undergo simple imprisonment for three months. iii) Rigorous imprisonment for three years under section 148, P.P.C. The appellant was extended the benefit provided under section 382-B of the Code of Criminal Procedure, 1898 and all the sentences were ordered to run concurrently. 4.) Muhammad Shafi son of Sher Muhammad alias Khandou i) Imprisonment for life under sections 302(b)/149, P.P.C. as Tazir for committing Qatl-i-Amd of Muhammad Ijaz son of Haji Allah Bakhsh (deceased) and directed to pay Rs.100,000/- 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 six months of simple imprisonment. ii) Imprisonment for life under sections 364/149, P.P.C. and fine of Rs.50,000/- and in case of default of payment of fine, directed to further undergo simple imprisonment for three months. iii) Rigorous imprisonment for three years under section 148, P.P.C. The appellant was extended the benefit provided under section 382-8 of the Code of Criminal Procedure, 1898 and all the sentences were ordered to run concurrently. 5.) Ismail son of Muhammad Ali i) Imprisonment for life under sections 302(b)/149, P.P.C. as Tazir for committing Qatl-i-Amd of Muhammad Ijaz son of Haji Allah Bakhsh (deceased) and directed to pay Rs.100,000/- as compensation under section 544A, Cr.P.C. to the legal heirs of the deceased, in case of default thereof, the convict was further directed to undergo six months of simple imprisonment. ii) Imprisonment for life under sections 364/149, P.P.C. and fine of Rs.50,000/- and in case of default of payment of fine, directed to further undergo simple imprisonment for three months. iii) Rigorous imprisonment for three years under section 148, P.P.C. The appellant was extended the benefit provided under section 382-B of the Code of Criminal Procedure, 1898 and all the sentences were ordered to run concurrently. 2. Feeling aggrieved, Liaqat son of Manzoor, Ghulam Abbas son of Elahi Bakhsh, Aslam son of Zahoor, Muhammad Shafi son of Sher Muhammad alias Khandou and Ismail son of Muhammad Ali (convicts) lodged Criminal Appeal No.262 of 2015 against their conviction and sentences. The learned trial court submitted Murder Reference No.32 of 2015 under section 374, Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to appellant Liaqat son of Manzoor. We intend to dispose of the Criminal Appeal No. 262 of 2015 and Murder Reference No.32 of 2015 through this single judgment. 3. Precisely the facts necessary, as divulged in the statement of Muhammad Riaz son of Allah Baksh (PW-2) are as under:-- "Stated that Muhammad Ijaz, deceased was my real brother. On 31.07.2011 'at 10:30 a.m. along with Ijaz deceased, Imtiaz Ahmad, and Nazeer Ahmad my brother in law, went to the house of my uncle Rabnawaz on two motorcycles situated in Mauza Dera Arbi, Chah Khokharwala. Ijaz Ahmad deceased in order to go the
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house of his maternal 'aunt, departed from there situated in Mauza Ghalwan and after some time, we heard fire shots and shareeks (sic). We ran outside and we saw Liaqat son of Manzoor, Saeed son of Ghulam Nazik alias Botha, Abbas son of Elahi Buksh, Shafi son of Sher Muhammad, Aslam son of Zahoor, Ismail son of Muhammad Ali who were known to me belonging to Mauza Karam Ali Wala. Liaqat accused was armed with pistol, Saeed armed pistol, Abbas armed with pistol, rest of the accused were also armed with pistols. The accused persons made straight fires towards us. And they were on three motorcycles. The above mentioned accused forcibly lifted my brother Ijaz Ahmad deceased and took him towards west. I along with Imtiaz, Nazeer Ahmad, Abdur Razzaq PWs followed them and while making firing threatened us that in case, anybody come near to them, he will be done to death. I made telephonic call to police at 15 from my phone No. 03007340753. The accused persons took my brother towards west. We all followed the accused persons. The accused persons took my brother at Chah Dahu Wala graveyard and in our view, Liaqat made a pistol fire on the person of my brother which was landed on his neck, in the result of which, my brother fell down. Saeed accused made pistol fire on the left side of chest of my brother, Shafi made pistol fire which was landed in the belly of my brother Ijaz on his left side. Abbas made fire with his pistol which was landed on left side belly of my brother. Aslam and Ismail accused made fires with their pistols which were landed on the left arm of my brother. Many people of the Ilaqa including our relatives attracted to the spot who also saw the occurrence with their own eyes. The accused persons seeing the PWs and people coming towards them, succeeded to run away with their respective weapons making firing. The motive behind the occurrence was that in the year 1996, a case FIR No. 180/96 was registered with regard to the murder of brother of Liaqat namely Shaukat and in that case, except myself, all the accused were acquitted and I was convicted for life imprisonment. I got registered case FIR No. 497/11 under sections 302, 364, 148/149, P.P.C. against the above mentioned accused persons at P.S. Saddar Shujabad. The police after charging gratification from the accused persons and by joining hands with them, declared Aslam son of Zahoor, Shafi son of Sher Muhammad, and Ismail son of Muhammad Ali innocent who were actual culprits and participated in the murder of my brother. In case the accused persons have not been there, the occurrence would not have taken place. I had been submitted applications to the police high-ups against the conduct of the I.O. but no action was taken against the 1.0. and in the last resort, I filed the present complaint which is EX-PC. The same was read over, I signed the same in token of its correctness." 4. The accused were summoned to face trial in the case instituted upon the private complaint titled "Muhammad Riaz v. Liaqat and 5 others" (relating to FIR No. 497 of 2011 dated 31.07.2011 registered at Police Station Saddar Shujjabad District Multan in respect of offences under sections 302, 364, 148 and 149, P.P.C.) for committing the Qatl-i-amd of Muhammad Ijaz son of Haji Allah Bakhsh (deceased). The learned trial court framed the charge against the accused on 20.03.2013, to which the appellants pleaded not guilty and claimed trial. 5. The complainant in order to prove its case got recorded statements of as many as six witnesses. The ocular account of the occurrence was furnished by Muhammad Riaz (PW-2) and Imtiaz son of Allah Bakhsh (PW-3). Muhammad Akhtar T-ASI (PW-4) stated that on 31.07.2011 he recorded the formal FIR (Exh.PG). Irfan Hayat, draftsman (PW-5) prepared the scaled site plan of the place of occurrence (Exh.PH and Exh.PH/1). Ismail (PW- 6) identified the dead body of the deceased. The learned trial court also examined six witnesses as Court Witnesses. Khadim Hussain 4286/C (CW-1) stated that on 31.07.2011 he escorted the dead body of the deceased for its postmortem examination. Muhammad Shabbir 540/C (CW-2) stated that on 21.09.2011, Liaqat (appellant) to the recovery of pistol (Exh. C1) and Ghulam Abbas, (appellant) led to the recovery of pistol (Fxh.C2). Muhammad Ahsraf 1468/C (CW-3) stated that on 09.09.2011 he was handed over a sealed parcel said to contain blood stained earth which he deposited in the office of Chemical Examiner, Lahore and on 26.09.2011 he was handed over a sealed parcel said to contain empties which he deposited in the office of Punjab Forensic Science Agency, Lahore. Nazar Hussain 1656/HC (CW-4) stated that on 31.07.2011 Zia Akhtar, SI (CW-5) handed over to him a motorcycle, last worn clothes of the deceased, a sealed parcel said to contain blood stained earth and a sealed parcel said to contain empties which he handed over to Muhammad Ashraf '
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1468/C (CW-3). He further stated that on 31.09.2011 Zia Akhtar, SI (CW-5) handed over to him two sealed parcels said to contain pistols. Riaz Ahmad, 336/C (CW-6) stated that on 29.09.2011 he executed non bailable warrants of arrest of accused Saeed (proclaimed offender). Zia Akhtar, SI (CW-5) investigated the case from 31.07.2011 till 21.09.2011 and detailed the facts discovered during investigation conducted by him in his statement before the learned trial court. 6. The prosecution got examined Dr. Muhammad Idrees (PW.-1), who on 31.07.2011 was posted as Medical Officer at THQ Hospital, Shujabad and on the same day conducted the postmortem examination of Muhammad Ijaz son of Haji Allah Baksh (deceased). Idrees (PW.-1) on examining Muhammad Ijaz son of Haji Allah Baksh (deceased) observed as under: "Stated that on 31.07.2011, at 05:30 p.m, when I was posted at THQ Hospital, Shujabad, as Medical Officer, the dead body of Muhammad Ijaz son of Haji Allah Buksh was brought by police for postmortem examination. The dead body was identified by Nazir Ahmad son of Faiz Bakhsh and Muhammad Ismail son of Pir Bukhsh. It was a dead body of a young man, lying on mortuary table with closed eyes, and open mouth wearing brown coloured shalwar, qameez and white buniyan were stained with blood, rigor mortis was developed, PM staining were present. I found the following injuries on the person of the deceased: INJURIES 1. A lacerated wound measuring 2 cm x 1 cm on the front of neck. Blackening and burning was present, margins were inverted. 2. A lacerated wound measuring 0.7 cm. x 0.5 cm on the back of neck margins were everted. 3. A lacerated wound 1 cm x 0,5 cm on flexor part of left forearm, 6 cm below elbow blackening was present, margines were inverted. 4. A lacerated wound measuring 1 cm x 1 cm on medial aspect of left forearm, 1 cm below elbow, margins were everted. 5. A lacerated wound 1 cm x 0.5 cm on flaxor aspect of left forearm 7 cm below elbow, blackening was present, margins were inverted. 6. A lacerated wound 1.5 cm x 0.7 cm on medial aspect of left forearm, 3 cm below elbow, margins were everted. 7. A lacerated wound measuring 0.5 cm x 0.5 cm on the lateral side just above wrist of left forearm, blackening was present, margins were inverted. 8. A lacerated wound measuring 1 cm x 0.8 cm on medial aspect of wrist of left forearm. Margins were everted. 9. A lacerated wound measuring 0.5 cm x 0.5 cm on left side of chest, 8 cm below nipple, blackening was present, margins were inverted. 10. Two lacerated wounds measuring 0.5 cm x 0.5 cm and 0.5 cm into 0.5 cm on left side of abdomen, 2cm and 6 cm from umbili respectively, blackening was present, margins were inverted. 11. A lacerated wound measuring 0.8 cm x 0.8 cm on right side of lower part of back, margins were everted. 12. Two lacerated wounds measuring 0.8 cm x 0.8 cm on the left side of lower part of back, margins were everted. 13. Abrasion measuring 2 cm x 0.5 cm on medial malleolus of left ankle. Opinion In my opinion, due to injuries of vital organs, hemorrhagic and neurogenic shock occurred which lead to death. Time between death and injuries was at the spot whereas time between death and postmortem was 7 to 8 hours. Postmortem report EX-PA is in my hand, bears my signatures. EX-PA/1, EX-PA/2 is diagram showing the seats of injuries which are also in my hand and bears my signatures. After postmortem examination, I handed over the dead body, postmortem report EX-PA, police papers and last worn clothes of the deceased to police. I endorsed inquest report EX-PA/3. I also countersigned injury statement EX-PB." 7. On 25.03.2015 the learned counsel for the complainant closed the prosecution evidence after tendering the reports of Chemical Examiner (Exh.PK) and the Serologist (Exh.PL).
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8. After the closure of prosecution evidence, the learned trial court examined the appellants namely Liaqat son of Manzoor, Ghulam Abbas son of Elahi Bakhsh, Aslam son of Zahoor, Muhammad Shafi son of Sher Muhammad alias Khandou and Ismail son of Muhammad Ali 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 appellants replied that they were innocent and had been falsely involved in the case due to previous enmity. The appellants further stated that they had not committed the occurrence. The appellants namely Liaqat son of Manzoor, Ghulam Abbas son of Elahi Bakhsh, Aslam son of Zahoor, Muhammad Shafi son of Sher Muhammad alias Khandou and Ismail son of Muhammad Ali opted not to get themselves examined under section 340(2) Cr.P.0 however produced attested copies of FIRs (Exh. DB to Exh. DH), photocopies of FIRs ( Mark-DA to Mark DH) and photocopy of report under section 173 of Cr.P.C. in case FIR No. 205 of 2007 (Mark-DJ) in their defence. 9. On the conclusion of the trial, the learned Additional Sessions Judge, Multan convicted and sentenced the appellants as referred to above. 10. The contention of the learned counsel for the appellants precisely is that whole case is fabricated and false. The learned counsel for the appellants submitted that the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence. The learned counsel fur the appellants further contended that the statements of Muhammad Riaz (PW-2) and Imtiaz son of Allah Bakhsh (PW-3) were not worthy of reliance. The learned counsel for the appellants also argued that the recoveries of pistols were full of procedural defects , of no legal worth and value and result of fake proceedings. The learned counsel for the appellants finally submitted that the prosecution has totally failed to prove the case against the appellants beyond the shadow of doubt. 11. On the other hand, learned Deputy Prosecutor General along with the learned counsel for the complainant contended that the prosecution has proved its case beyond shadow of doubt by producing independent witnesses. Learned counsel further argued that the deceased died as a result of injuries suffered at the hands of the appellants . They further contended that the medical evidence also corroborated the statements of Muhammad Riaz (PW-2) and Imtiaz son of Allah Bakhsh (PW-3). They further argued that the recoveries from the appellants 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 offenders with the innocent in this case. Lastly, they prayed for the rejection of appeal. 12. We have heard the learned counsel for the appellants and learned Deputy Prosecutor General along with the learned counsel for the complainant and with their assistance perused the record and evidence recorded during the trial carefully. 13. The whole prosecution case revolves around the statements of Muhammad Riaz (PW-2) and Imtiaz son of Allah Bakhsh (PW-3). These witnesses namely Muhammad Riaz (PW-2) and Imtiaz son of Allah Bakhsh (PW-3) were real brothers of the deceased. Muhammad Riaz (PW-2) and Imtiaz son of Allah Bakhsh (PW-3) further admitted in their cross-examination that they were not the residents of the place of occurrence. It is an admitted fact that none of the prosecution witnesses namely Muhammad Riaz (PW-2) and Imtiaz son of Allah Bakhsh (PW-3) had their residences or their houses at the place of occurrence. They were all "chance witnesses". Muhammad Riaz (PW-2) during cross-examination admitted as under:- "The house of Rab Nawaz is situated at the distance of one kilometer from my house." Muhammad Riaz (PW-2) during cross-examination further admitted as under:- "I along with PWs per chance were present at the house of Rab Nawaz." Zia Akhtar, SI (CW-5), the Investigating Officer of the case during cross-examination admitted as under:- "It is correct that the witnesses namely Riaz and Imtiaz are not the residents of place of abduction." In addition to above extracts, it is noticed that neither Muhammad Riaz (PW-2) nor Imtiaz son of Allah Bakhsh (PW-3) could establish their acclaimed presence at the spot. Muhammad Riaz (PW-2) had stated that when they were present at the house of their uncle namely Rab Nawaz (not produced), the deceased departed from the said house towards the house of his maternal aunt and after some time the witnesses heard fire shots and shrieks. He further submitted that the appellants made straight fires towards them and forcibly lifted the
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deceased and took him towards west. It was further deposed by him that when the witnesses followed the appellants they were again fired at. As per the deposition of Muhammad Riaz (PW-2) they were fired at by the appellants at two different places. Similarly, Imtiaz (PW-3) also deposed that the appellants made firing at the witnesses at two different places. However , during the investigation of the case, Zia Akhtar, SI (CW-5), the Investigating Officer of the case, did not collect or find any empties at the said two places from where the appellants had allegedly fired at the witnesses. Both the witnesses namely Muhammad Riaz (PW2) and Imtiaz (PW-3) had claimed that they were attracted to the place of occurrence on hearing fire shots when they were present at the house of their uncle Rab Nawaz. In direct contrast to this stance, Imtiaz (PW-3) during cross- examination stated as under:- "We were just going to the cotton crop, then we heard the aerial firing and went towards the spot." Muhammad Riaz (PW-2) in his examination-in chief had narrated a different story and had stated as under:-. "On 31.07.2011 at 10:30 a.m. I along with Ijaz deceased, Imtiaz Ahmad, and Nazeer Ahmad my brother in law, went to the house of my uncle Rabnawaz on two motorcycles situated in Mauza Dera Arbi, Chah Khokharwala. Ijaz Ahmad deceased in order to go the house of his maternal aunt, departed from there situated in Mauza Ghalwan and after some time, we heard fire shots and shareeks (sic). We ran outside and we saw Liaqat son of Manzoor, Saeed son of Ghulam Nazik alias Botha, Abbas son of Elahi Buksh, Shaft son of Sher Muhammad, Aslam son of Zahoor, Ismail son of Muhammad Ali who were known to me belonging to Mauza Karam Ali Wala" It is clearly mentioned by Muhammad Riaz (PW-3) that after hearing the fire shots they ran outside from the house of Rab Nawaz but Imtiaz (PW-3), the other eye-witness, had claimed the they were going to the cotton crop when -hey heard the - fire shots. Imtiaz (PW-1) never claimed that they were present inside the house of Rab Nawaz and from there they proceeded towards the place of abduction. Muhammad Riaz (PW-2) had stated in his statement before the learned trial court as under:- "Ijaz deceased was abducted from the Official Small Bridge situated in the Basti Khokhran Wali which is situated on one side of the abadi." However Zia Akhtar, SI (CW-5), the Investigating Officer of the case, during cross-examination admitted as under:- "It is correct that in my investigation, I found that Ijaz was never abducted from Basti Khokhran." Moreover, it was alleged by the eye-witnesses that the appellants were riding on two motorcycles at the time of abduction of Muhammad Ijaz (deceased) Muhammad Riaz (PW-2) during cross-examination was confronted and replied as under:- "I had not stated in my statement before police as well as in Court that accused persons riding on three motor- cycles were kidnapping my brother Ijaz confronted with summary statement dated 21.03.2012 where it is so recorded." However, during the course of investigation no motorcycle under the use of accused was recovered. Likewise, it can well be gathered from the deposition of the two eye-witnesses that they along with deceased arrived at the eventful place not in accordance with their daily routine. Cumulatively, these circumstances make the narrators of ocular account as chance witnesses. As per settled principles laid down for evaluating the intrinsic worth of a chance witness, his testimony is always looked with suspicion. In order to qualify acceptance for awarding conviction, the evidence of chance witness is to be evaluated on the touchstone of corroboration from other source of unimpeachable character. If the tale of occurrence provided by such a witness is supported and corroborated from other attending circumstances, superstructure of conviction can be raised there upon, otherwise, it is destined to be discarded. A chance witness is described and defined as the one who has no plausible explanation for his presence near the place of occurrence at the time of commission of offence. The Hon'ble Supreme Court of Pakistan in the case of Mst. Sughra Begum and another Qaiser Pervez and others (2015 SCMR 1142) while dealing with a case of chance witness observed as under:- "A chance witness, in legal parlance is the one who claims that he was present on the crime spot at the fateful time, albeit, his presence there was a sheer chance as in the ordinary course of business, place of residence and normal course of events, he was not supposed to be present on the spot but at a place where he resides,
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carries on business or runs day to day life affairs. It is in this context that the testimony of chance witness, ordinarily, is not accepted unless justifiable reasons are shown to establish his presence at the crime scene at the relevant time. In normal course, the presumption under the law would operate about his absence from the crime spot. True that in rare cases, the testimony of chance witness may be relied upon, provided some convincing explanations appealing to prudent mind for his presence on the crime spot are put forth, when the occurrence…
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