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Petitioner: AKMAL VS Respondent: The STATE and others
Court Name: Lahore High Court Judge(s): Aalia Neelum Title: AKMAL vs The STATE and others Case No.: Crl. And Crl. Revision No,348 of 2008 Date of Judgment:2016-10-13 Reported As: 2017 YLR 1138 Result: Appeal accepted
JUDGMENT
JUDGMENT ' MISS AALIA NEELUM, J.---Appellant, Akmal son of Uzair Ahmad, Caste Samoor, resident of Shari Chattah, Police Station Saddar, Tehsil and District Hafizabad along with Afzaal Ahmad (since acquitted) and Uzair Ahmad (since acquitted) being involved in case F.I.R. No,396 of 2007, dated 05.11.2007, offence under Sections 302/109/34, P.P.C., registered at Police Station Saddar Hafizabad was tried by the learned Additional Sessions Judge, Hafizabad. The learned trial court seized with the matter in terms of judgment dated 17.05.2008 convicted Akmal (appellant) under section 302(b), P.P.C. And sentenced him to imprisonment for life with the compensation of Rs,50,000/- payable to the legal heirs of Nadeem Qaisar-deceased and in default thereof, to further undergo six months simple imprisonment. 2. Feeling aggrieved by the judgment of the learned trial court the appellant impugned the same by way of filing Crl. Appeal No,55 of 2009, whereas Muhammad Azam-complainant being dissatisfied with the quantum of sentence filed Crl.Rev.No,348 of 2008. As both the matters are arising out of one and the same judgment, therefore, I intend to dispose of the same through this single judgment. 3. The prosecution story as alleged in the statement (Ex.PE) of the complainant-Muhammad Azam (PW-9) is that he is resident of Shori and having his Karyana shop in the village. At about 1:30 p.m., he (PW-9) along with his son Nadeem Qaisar (deceased) and Muhammad Arshad (given up PW) was present at his shop when Muhammad Yousaf (PW-10) came over there and narrated that he was passing nearby the Haveli of Uzair Ahmad (since acquitted), where his both sons namely Akmal-appellant and Afzaal Ahmad (since acquitted) were present. The co-accused Afzaal Ahmad (since acquitted) was asking his brother and father that Nadeem Qaisar (deceased) be
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killed for facing to them being land owner. All of sudden, Akmal, while armed with .12-bore gun and Uzair Ahmad (since acquitted) empty hand came at the shop and in the meanwhile accused Uzair Ahmad (since acquitted) raised Lalkara that Nadeem Qaisar be done to death by fire shot and later on, the appellant-Akmal fired with gun at Nadeem Qaisar, which landed at his abdomen, who fell down and the accused fled away while raising Lalkara. He (PW-9) took his son Nadeem Qaisar in his precarious condition to DHQ, Hospital, Hafizabad from-where he was referred to Lahore and he succumbed to the injuries on the motorway. The occurrence was witnessed by Muhammad Arshad (given up PW) and Muhammad Yousaf (PW-10). The appellant-Akmal committed Qatl-i- Amd of his son Nadeem Qaisar on the abetment of Afzaal Ahmad (since acquitted). 4. The motive behind the occurrence is stated to be exchange of hot Words in between the appellant-Akmal and Nadeem Qaisar a day ago and due to this, the appellant with the common intention of Afzaal Ahmad and Uzair Ahmad committed murder of his son. 5. The complainant Muhammad Azam (PW-9) went to Police Station for reporting the occurrence. The complainant (PW-9) made his statement (Ex.PE), whereupon formal FIR (Ex.PE/1) was chalked out by Muhammad Rafique, SI (PW-4). Thereafter, the investigation was entrusted to Muhammad Arif, Inspector/SHO (PW-11) and he (PW-11) proceeded to Hospital, where Doctor Captain Khalid Farooq handed over to him a carbon copy of MLR (Ex.PF). He (PW-11) prepared inquest report (Ex.PG), application for postmortem examination (Ex.PH), injury statement (Ex.PJ) and took the dead body into his custody. He (PW-11) visited the place of occurrence, secured blood stained earth (P-1) and two empties of cartridges of gun .12-bore, which he sealed into parcel separately, which were taken into possession vide recovery memo (Ex.PB). He (PW-11) prepared rough site plan of place of occurrence (Ex.PK) and recorded the statements of PWs under section 161, Cr.P.C. And also took into possession last worn clothes of the deceased i,e, Shalwar (P-2) and Qameez (P-3), which were taken into possession vide recovery memo (Ex.PC). The Draftsman-Masood Ahmad Bhatti (PW-1) took rough notes on 07.11.2007 and thereafter, on 10.11.2007, he (PW-1) produced scaled site plans (Ex.PA) and (Ex.PA/1) before the Investigating Officer and he (PW-11) recorded the statement of the Draftsman and thereafter on his transfer from the Police Station, the investigation of the case was transferred to Muhammad Waris, SI. Muhammad Waris, SI (PW-12) has deposed that on 27.11.2007, the investigation of this case was entrusted to him. During the course of investigation, he (PW-12) joined both the parties and recorded their statements and on 14.12.2008, he arrested the appellant- Akmal. During physical remand on 17.12.2007, the appellantAkmal was interrogated by him in the presence of Bashir Ahmad and Muhammad Arshad PWs and during interrogation, Akmal-appellant made disclosure that he could get recovered gun, which was concealed by him in his house. After disclosure, the appellant-Akmal while in police custody got recovered .12-bore gun (P-4) from his residential 'room, which was taken into possession vide recovery memo (Ex.PD). He (PW-12) also prepared rough site plan of place of recovery (Ex.PD/1). On the same day, he handed over (P-4) to the Moharrar for safe custody and onward transmission to the concerned quarter and he got recorded the statements of Mansab Ali 477/HC (PW-5) and Zafar Iqbal 125/C (PW-6) regarding transmission of parcel. During his investigation, the co-accused Uzair Ahmad (since acquitted) and Afzaal Ahmad (since acquitted) were found innocent, therefore, their arrest was not effected and their names were placed in column No,2 of the Challan, whereas the appellant-Akmal was found guilty and his name was placed in column No,3. 6. Having found the appellant guilty, the Investigating Officer (PW-12) prepared report under section 173, Cr.P.C and sent the same to the court of competent jurisdiction. On 22.03.2008, the learned trial court formally charge sheeted the appellant to which he pleaded not guilty and claimed trial. The prosecution in support of its version produced as many as thirteen (13) prosecution witnesses.
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7. Ocular account of first part of occurrence in this case has come out from the statements of Muhammad Azam complainant (TV -9) and Muhammad Yousaf (PW-10), whereas, Dr. Basharat Rasool Ghumman, Senior Medical Officer (PW-13) had conducted postmortem examination of the dead body of deceasedNadeem Qaisar on 05.11.2007 and found the following injury on his person:- (1) Multiple firearm wound of entry inverted margins, blackened tatooeing around the wounds, going deep in an area of 36 cm x 17 cm on the left side of abdomen, size of each wound 1/4 cm x 1/4 cm. ' After conducting the postmortem examination, the doctor rendered the following opinion:- "Death in my opinion was due to excessive haemorrhage caused by ante-mortem injuries i,e, multiple in number of firearm which were sufficient to cause death in ordinary course of nature. Time between death and injury 3 to 6 hours and in between death and postmortem 3 to 6 hours" 8. On 06.05.2008, the learned DDPP gave up PWs namely Muhammad Arshad and Muhammad Tahir 128/C being unnecessary. On 13.05.2008, the learned DDPP closed the evidence of prosecution by tendering the report of Chemical Examiner (Ex.PM), Serologist (Ex.PN) and report of Forensic Science Laboratory (Ex. PO). 9. The appellant was also examined in terms of section 342, Cr.P.C., wherein he opted not to appear as his own witness in disproof of the allegations levelled against him in the prosecution version. In response to a particular question why this case is against him and why the PWs deposed against him, Akmal the appellant, made the following deposition:- "In fact the deceased Nadeem Qaisar, who was running a shop in the village used to flirt women and girls having his dubious character, over which, numerous people of the locality has complained about his activities to his father but all in vain and he was done to death by someone else who had hatred against him during the odd hours and we have been falsely implicated in the instant case being Zimidar of the area and made scape goat just to cover up the dubious character of the deceased by the complainant and his PWs who are inter se related with each other. The complainant and all the PWs have falsely deposed against us whereas I am innocent and have nothing to do with the instant case". 10. The learned trial court after evaluating the evidence available on record in the light of arguments advanced from both sides, found the prosecution version proved beyond' any shadow of reasonable doubt resulting into conviction of the appellant in the afore stated terms. 11. Learned counsel for the appellant has contended that there is delay of four hours, for which no plausible explanation has been rendered by the complainant; that in the FIR the complainant has mentioned only one fire shot injury to the deceased and in the MLR as well as in the postmortem there is only one injury, whereas in the supplementary statement two firearm injuries were mentioned by the complainant, which makes the prosecution story doubtful; that the recovery of empties is doubtful as the same could not be kept in safe custody; that there is blackening and tatooeing on the body of the deceased, whereas in the site plan the distance between the place of occurrence is 20-feet; -that the motive part is also not proved; that the complainant has booked the appellant in a false case with mala fide intention; that the eye-witness of occurrence namely Muhammad Arshad was given up by the prosecution, who was the important witness of the occurrence; that there is a conflict between the medical evidence and ocular account as well as the statement of the prosecution witnesses; that no crime empty was recovered from the place of occurrence and if any that is fake and fictitious. Learned counsel for the appellant has further submitted that the nothing incriminating material is available on the record, which connects the appellant with the alleged crime. Learned counsel for the appellant has lastly prayed that the prosecution has badly failed to prove its case against the appellant beyond any shadow of doubt and therefore, the appellant may be acquitted from the charge.
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12. On the other hand, the learned Deputy. Prosecutor General assisted by the learned counsel for the complainant has vehemently opposed the contentions raised by the learned counsel for the appellant with the submissions that the appellant is duly named in the crime report with specific role; that the injury attributed to the appellant is available on the body of the deceased; that the prosecution witnesses remained consistent on all material points; that the medical evidence and the ocular account is in line; that it is a broad day light occurrence so there is no possibility of false implication of the appellant. Learned counsel for the complainant lastly prayed that the prosecution has proved its case against the appellant and therefore, the appeal in hand may be dismissed. 13. Arguments advanced from both sides have been heard. I have also gone through the record available on file with the able assistance of the learned counsel for the parties. 14. According to the prosecution evidence the investigating officer-Muhammad Arif, Inspector (PW- 11) left for the DHQ Hospital after the case had been registered at the police station and investigation was entrusted to him but I find that in the inquest report (Ex.PG) which was prepared by the investigating officer-Muhammad Arif, Inspector (PW-11) at the DHQ Hospital the number of the FIR has not been given. Even the nature of offence of the case, does not find mention in the inquest report. Was it because no FIR had actually been registered at the time as alleged by the prosecution and the investigating officer-Muhammad Arif, Inspector (PW-11) had reached the hospital and, after, some consultations and deliberations it came into existence? It has been noticed that in the inquest report (Ex.PG) even the names of the complainant (PW-9) and Muhammad Yousaf (PW-10) have not been mentioned. The inquest report (Ex.PG) is not signed by any of the eye-witnesses, although the investigating officer-Muhammad Arif Inspector (PW-11) has categorically asserted that the complainant (PW-9), Muhammad Yousaf (PW-10) and Muhammad Arshad (given-up PW) were present in the DHQ Hospital when he visited and prepared inquest report (Ex.PG). If he (PW-11) had actually met with the complainant (PW-9), Muhammad Yousaf (PW-10) and Muhammad Arshad (given-up PW), there is no reason why the details which I have found missing from the inquest report (Ex.PG) should not have been there. The of those details is indicative of the fact that the prosecution story was still in embryo and had not been given any shape and that the FIR was recorded later on after due deliberations and consultations and was then ante timed to give it the color of a promptly lodged FIR. The second external check equally important is the sending of the copy of the FIR along with the dead body for postmortem examination and its reference in the inquest report. Muhammad Iqbal, Constable (PW-7) who escorted the dead body of the deceased on 05-11-2007 deposed during cross-examination that, "The dead body was handed over to me at 6:15 p.m. At hospital/DHQ, Hafizabad. I.O. Handed over to me the police papers about 10 minutes ago of starting the post mortem which started at about 9:30 or 10:00 p.m." It also gets support from the testimony of Dr. Basharat Rasool Ghumman (PW- 13), who conducted post mortem on 05-11-2007 at 9:30 p.m. Dr. Basharat Rasool Ghumman (PW-13) deposed during cross-examination that as soon as he received police papers within no time he conducted post mortem. The absence of these details in the inquest report may be indicative that the FIR was not registered and the FIR was recorded later on after due deliberations and consultation. In the inquest report (Ex.PG) it was mentioned as under:-- ' This also gets support from the deposition of Dr. Captain Khalid Farooq (PW-8) who conducted medical examination of the deceased Nadeem Qaiser (than injured) on 05-11-2006 at 1:45 p.m. Dr. Captain Khalid Farooq (PW-8) deposed that, "Later ASI Muhammad Ashraf of P.S. Saddar, Hafizabad presented docket in the hospital." Whereas during cross-examination he deposed that, "It is correct that number of docket is not mentioned as ASI Muhammad Ashraf himself presented before the same." The MLC (Ex.PF) reveals that at the time of medical examination the police of Police Station Sadar, Hafizabad was present in the hospital and docket was presented by ASI
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Muhammad Ashraf. It is notable that occurrence took place at about 1.30 p.m. And distance between the police station and the place of occurrence was 6 miles whereas the complainant (PW-9) took four hours for reaching the police station for reporting the incident. The FIR (Exh.PE/1) was lodged by the complainant after considerable delay of four hours whereas ASI Muhammad Ashraf of Police Station Sadar, Hafizabad was present in the hospital but no complaint was lodged by the complainant, if he was present in the Hospital. Muhammad Azam (PW-9) deposed during cross-examination which reads as under:- "No Thanedar was present in the hospital when I brought my son Nadeem Qaisar while in injured condition. It is incorrect to suggest that I have not accompanied my injured son to the hospital that's why it is not in my knowledge that Muhammad Ashraf ASI was present at that time. Injured Nadeem Qaisar was referred to Lahore after 15/20 minutes. I, Nasir Iqbal, Muhammad Arshad PW and Muhammad Yousaf PW accompanied Nadeem Qaisar injured to Lahore. Deceased succumbed to the injuries at motorway near interchange of Khanqah Dogran. After the death we came back to DHQ Hospital, Hafizabad. We left Hafizabad at about 2.00 p.m., while Nadeem Qaisar succumbed to the injuries at 4:30 p.m. And we came back to DHQ Hospital at 5:30 p.m. It is incorrect that half hour consumed while reaching at Khanqah interchange via Kot Sarwar. I came back to the hospital at about 5:15 p.m and submitted application Ex.PE in P.S Saddar, Hafizabad at 5:30 p.m. On account of the above said infirmities, the FIR has lost its value and authenticity and it appears that the same has been ante timed and had not been recorded till the inquest proceedings were over at the hospital by the investigating officer-Muhammad Arif Inspector (PW-11). It would seriously and adversely affect the prosecution story. This by itself is sufficient to create a serious doubt about the prosecution story that till the time of the inquest proceedings FIR was not in existence. So no reliance can be placed on such testimony to establish the guilt of the appellant, which would form the basis for conviction. 15. The complainant-Muhammad Azam (PW-9) as per prosecution case went to police station and he presented an application for registration of case (Ex.PE) against the accused to SHO. Whereas during cross-examination he (PW-9) deposed which read as under:- "I got drafted Ex. PE from a Munshi who was present outside Police Station Saddar, Hafizabad. It is correct that on the right side of bottom of Ex.PE my signatures are present as Ex.PE/2". ' Non-mentioning of this fact in the application/complaint (Ex.PE) indicates that the complainant (PW-9) had not stated complete truth and that the FIR came into existence later on, after due deliberations and consultations. When and where complaint (Ex.PE) was prepared and author of the complaint should have to state that the complaint was prepared by him under the instructions of the complainant. It is also not a case of the prosecution that the complainant (PW-9) asked "Munshi" (unknown) to prepare a complaint and accordingly complaint was prepared by "Munshi" (unknown), which was shown to the complainant, read over to him which was signed by the complainant. Even the complainant had not given any explanation regarding preparation of complaint, in the complaint as well as in his statement before the learned trial court, therefore, in these circumstances chance of consultations and deliberations, on the part of the complainant, cannot be ruled out. It also creates dent in the prosecution case. 16. The entire prosecution case against the appellant-Akmal rests on the oral evidence of Muhammad Azam-the complainant (PW-9) and Muhammad Yousaf (PW-10) who claimed to be an eyewitness to the incident which took place about 1.30 p.m. On 05.11.2007 wherein Nadeem Qaiser received firearm injuries and he was shifted to the DHQ Hospital, Hafizabad wherefrom the doctor due to serious condition referred him to Lahore but Nadeem Qaiser succumbed due to the injuries in the way and the dead body of Nadeem Qaiser was brought back to DHQ Hospital, Hafizabad for post-mortem. The learned counsel for the appellant contended that there is sharp
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contradiction in the medical and ocular account in the prosecution case and on this count their testimonies should be rejected as same has no substance. I, therefore, carefully scrutinized the same. From the deposition of Dr. Captain Klialid Farooq (PW-8) and Dr. Basharat Rasool Ghumman (PW-13) as well as Medico Legal Certificate (Ex.PF) and postmortem report (Ex.PL), it is further found that the fire shot injury was found containing blackening and tattooing mark around the wound. Muhammad Arif Inspector (PW-11) deposed during cross-examination that, "I prepared rough site plan Ex. PK at the pointation of complainant and PWs. I have not shown the exact pleases of deceased, complainant and PWs in the site plan where they were standing nearby deceased when accused Akmal allegedly fired with his shot gun at deceased Nadeem Qaiser. I have also not mentioned the distance in between accused and deceased from where he opened fire with his shot gun." However Masood Ahmed Bhatti, Draftsman (PW-1) deposed that on 07-11-2007 he inspected the place of occurrence and on the direction of investigating officer and on the pointing of PWs he took rough notes and prepared scaled site plan Ex.PA and Ex.PA/1. From a perusal of the site plan Ex.PA and Ex.PA/1 prepared by the draftsman Masood Ahmed Bhatti (PW-1) it reveals that the deceased was at point "A" and the fire shot made by the accused was from point "D" shown in the site plan Exh.PA and distance between both points was 20 feet. The autopsy report shows that a blackening and tattooing existed so far as Injury is concerned. The blackening and tattooing keeping in view the nature of the firearm, which is said to have been used clearly go to show that a shot was fired from a short distance. Dr. Basharat Rasool Ghumman (PW-13) deposed during cross-examination that, "Possibility cannot be ruled out that distance between assailant and deceased would be 2-4 feet." This is suggestive of the fact that shot was fired at a very close range. The evidence produced by the prosecution, in the form of site plans and testimony of Masood Ahmed Bhatti (PW-1) does not support firing at such a close range that could result in blackening and tattooing around the wound. The unexplained blackening and tattooing around the wound on the dead body of the deceased leaves a big gap in the prosecution story. The blackening and tattooing around the wound, therefore, also raises doubts about the prosecution case. As such, there is conflict between medical and oral evidence. 17. Another circumstance equally important and which cannot go un-noticed in this regard is to test the veracity and trustworthiness of witnesses it is necessary to scrutinize the evidence available on record. It is well settled principle of law that as gravity of the offence increases the scrutiny of evidence become tighter and tighter. Dr. Captain Khalid Farooq (PW-8) also deposed that, "Pulse was very low volume P. P was not recordable, skin was cold and clammy, respiration was shallow and fact and condition of the injured was serious. Injuries were kept under observations for follow up by the operation notes of the surgeon." From the MLR (Ex.PF) it also reveals that Injuries were kept under observation for follow up by the operation notes of the surgeon. The deposition of Dr. Captain Khalid Farooq (PW-8) and MLR (Ex.PF) are silent that due to serious condition of the deceased Nadeem Qaiser (then injured) was referred to any hospital at Lahore. Whereas it is the case of the prosecution that Nadeem Qaiser was shifted to the DHQ Hospital, Hafizabad wherefrom the doctor due to serious condition referred him to Lahore but Nadeem Qaiser succumbed due to the injuries in the way and the dead body of Nadeem Qaiser was brought back to DHQ Hospital, Hafizabad for post-mortem. Muhammad Azam (PW-9) deposed during cross-examination which reads as under:-- "Injured Nadeem Qaiser was referred to Lahore after 15/20 minutes" ' Muhammad Yousaf (PW-10), the eyewitness, deposed during his court statement which reads as under:-- "We took Nadeem Qaiser in injured condition to DHQ Hospital, Hafizabad in his precarious condition who attended by the doctor at the duty who after necessary first aid and completion of
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formalities referred him to Lahore but unfortunately he succumbed to the injuries on the way and we brought back his dead body to Hospital for postmortem". ' Muhammad Yousaf (PW-10) also deposed during cross-examination which reads as under:-- "It is correct that we have not informed the police about the occurrence when we brought the deceased in injured condition and even the doctor has attended the deceased without police and referred him to Lahore. It is correct that no docket in any manner whatsoever was before the Doctor when the deceased was attended and examined by him in his precarious condition who chalked out his MLR Ex.PF". I have noted that from the deposition of the complainant (PW-9) and Muhammad Yousaf (PW-10) it reveals that the medical officer after providing first aid to the deceased Nadeem Qaiser (then injured) was referred to Lahore, whereas from the deposition of Dr. Captain Khalid Farooq (PW-8) and MLR (Ex.PF) it does reveal that the deceased Nadeem Qaiser (then injured) had gone through surgery and he was kept under observation. The statements of both the witnesses are in conflict with medical evidence on material points. In such circumstances, witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with the medical evidence, in such a case it cannot be held that persecution proved its case beyond reasonable doubt. This also creates…
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