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Petitioner: HAZAR KHAN alias BAGGI VS Respondent: StateHonorable Justice Manzoor Ahmad MalikBarrister Muhammad Yar Khan Daha
2014 Y L R 2227
[Lahore]
Before Manzoor Ahmad Malik and Syed Mansoor Ali Shah, JJ
HAZAR KHAN alias BAGGI---Appellant
Versus
The STATE---Respondent
Criminal Appeal No.1405 and Murder Reference No.420 of 2010, heard on 28th February, 2014.
(a) Penal Code (XLV of 1860)---
----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---F.I.R., in the case was recorded one hour after the occurrence, and postmortem examination on the dead body of the deceased was conducted after about eleven hours after the occurrence, in such a situation, possibility of preliminary inquiry and consultation prior to the reporting of the matter to the Police, could not be ruled out---Complainant and prosecution witnesses had made improvements in their statements---Witness of ocular account had not disclosed any plausible reason for his presence at the spot at relevant time---Abscondence of accused, had not been proved in accordance with law---No order in writing was available on the record by the court issuing proclamation which under S.87, Cr.P.C. was mandatory---Alleged abscondence of accused, could not be used against him---When as per own version of the complainant the earlier matter was patched up, then no reason or occasion was left for accused to commit murder---Abscondence and motive, at the most being corroborative pieces of evidence, and relevant only if primary evidence i.e. ocular account was confidence inspiring, which was not the situation in the present case---Recovery of .8 MM rifle, allegedly effected at the instance of accused, was inconsequential as no empty was recovered from the spot and no report of Forensic Science Laboratory was available on the record---Prosecution case being of doubtful nature, there was no need to discuss the version of accused recorded under S.342, Cr.P.C.---Prosecution having failed to connect accused with the commission of crime, conviction and sentence awarded to accused by the Trial Court, were set aside---Accused was acquitted of the charge levelled against him, extending him benefit of doubt and was ordered to be released, in circumstances.
Ayub Masih v. The State PLD 2002 SC 1048 ref.
(b) Criminal trial---
----Witness---Improvement made by witness in his statement---Effect---When a witness would improve his statement to strengthen the prosecution case; and the moment it was concluded that the improvements were made deliberately and with mala fide, the testimony of such witness, would not remain reliable.
Muhammad Rafique and others v. The State and others 2010 SCMR 385 and Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550 rel.
(c) Criminal trial---
----Motive---Scope---Motive was double edged weapon, if it could be a reason for commission of offence for accused, at the same time, motive could be a reason for false implication of accused by the prosecution.
(d) Criminal trial---
----Medical evidence---Medical evidence was a supporting piece of evidence, because it could confirm the ocular evidence, with regard to receipt of the injury, its locale, kind of weapon used for causing the injury, duration between the injury and the death, but it would not tell the name of accused. Ata Muhammad and another v. The State 1995 SCMR 599 rel.
Barrister Muhammad Yar Khan Daha for Appellant.
Mirza Abid Majeed, Deputy Prosecutor General for the State.
Saif Ullah Khan for the Complainant.
Date of hearing: 28th February, 2014.
JUDGMENT
MANZOOR AHMAD MALIK, J.---Hazar Khan alias Baggi (appellant) was tried by the learned Additional Sessions Judge-II, Arifwala District Pakpattan in a private complaint filed under sections 302, 404, 109, P.P.C. read with section 34, P.P.C. by Abdul Sami alias Sami Ullah as the complainant was dissatisfied with police investigation conducted in case F.I.R. No.308 dated 19-7-2001, offence under sections 302, 379, 109 and 34, P.P.C. registered at Police Station Saddar Arifwala District Pakpattan Sharif for the murder of Qudrat Ullah (deceased) son of the complainant. Vide judgment dated 27-5-2010 passed by the learned Additional Sessions Judge-II, Arifwala, the appellant has been convicted under section 302(b) P.P.C. and sentenced to death, with a direction to pay Rs.1,00,000 (rupees one lakh only) as compensation to the legal heirs of Qudrat Ullah (deceased) as provided under section 544-A Cr.P.C. and in default whereof to further undergo six months' simple imprisonment. Assailing the above conviction and sentence, Hazar Khan alias Baggi (appellant) has filed the appeal in hand whereas the learned trial Court has sent Murder Reference No.420 of 2010 for confirmation or otherwise of appellant's sentence of death, as required under section 374, Code of Criminal Procedure. As both these matters have arisen out of the same judgment, therefore, they shall be decided together through this single judgment.
2. The prosecution story, as set out in the F.I.R. (Exh.PA) registered on the statement of Abdul Sami alias Sami Ullah, complainant (P.W.1), is that he was resident of Chak No.9/E.B and a cultivator. On the day of occurrence i.e. 19-7-2001, the complainant alongwith his brother namely Abdul Ghafoor and maternal nephew (Bhanja) Zaheer Ahmad son of Muhammad Ameer, caste Bhatti, resident of Pakpattan was present at his land. At about 7.30 a.m. Qudrat Ullah son of complainant proceeded to his land for cutting fodder with licensed rifle .8-MM, wrapped in cloth. When he started cutting fodder, in the meantime, Hazar Khan alias Baggi (appellant) son of Atta Muhammad, caste Kharal, resident of the same village armed with rifle and Muhammad Nawaz son of Haq Nawaz, caste Bhatti, resident of the same village armed with .12 bore gun emerged there and raised lalkara to Qudrat Ullah not to run away. The complainant as well as Abdul Ghafoor and Zaheer Ahmad on hearing lalkara ran towards them and when they were at some distance, Hazar Khan alias Baggi (appellant) fired with rifle which landed on the forehead of Qudrat Ullah. Muhammad Nawaz fired with .12 bore gun hitting on the neck and face of Qudrat Ullah, who fell down. Then Muhammad Nawaz while coming close fired with .12 bore gun which hit on the back of Qudrat Ullah. Hazar Khan alias Baggi (appellant) picked up rifle .8-MM lying near Qudrat Ullah and raised lalkara to the complainant side that if they came near, would be done to death. The complainant party was empty-handed so did not go near due to fear. Both the accused decamped from the spot while brandishing weapons and extending threats to the complainant party and also took away rifle of Qudrat Ullah. It was further alleged in the F.I.R. that the occurrence was committed at the abetment of Ghulam Mustafa son of Sardar Shah, caste Bodla, resident of the same village. Prior to the occurrence, Hazar Khan (appellant) and Muhammad Nawaz were present at the dera of Mustafa Bodla where they hatched this conspiracy.
Motive behind the occurrence as alleged in the F.I.R. was that two years prior to the occurrence, Qudrat Ullah (deceased) had fractured the legs of Hazar Khan alias Baggi (appellant) and later on a compromise was effected but Hazar Khan (appellant) bore grudge in his mind and he (appellant) alongwith Muhammad Nawaz committed the murder of Qadrat Ullah (deceased).
3. Muhammad Iqbal, S.I (CW.5) was posted at Police Station Saddar Arifwala. On 19-7-2001, Abdul Sami alias Sami Ullah, complainant (P.W.1) appeared before him and got recorded his statement, which was read over to him and the complainant thumb marked the same in token of its correctness. Thereafter, Sub-Inspector (CW.5) visited the place of occurrence where the dead body of Qudrat Ullah (deceased) was lying. He prepared injury statement (Exh.PG), inquest report (Exh.PH) and sent the dead body of Qudrat Ullah (deceased) to the mortuary for autopsy through Muhammad Riaz Constable (P.W.3). During spot inspection, he took into possession blood-stained earth and sickle (P.6) vide recovery memo (Exh.PD). After postmortem examination, Muhammad Riaz Constable (P.W.3) produced before him last worn clothes of the deceased viz shirt (P.2), shalwar (P.3) and a sealed phial, which were taken into possession vide memo (Exh.PE). He got prepared scaled site plan (Exh.CW.3/A) through Ashiq Muhammad Patwari (CW.3). Thereafter, he was transferred from the Police Station. Ch. Talib Hussain, Inspector/S.H.O. (CW.1) submitted an application (Exh.CW.1/A) and got issued non-bailable warrants of arrest (Exh.CW.2/A) of Hazar Khan alias Baggi (appellant) on 10-12-2001 and the same were entrusted to Muhammad Ashraf 231/C (CW.2) for execution. Thereafter, on 3-1-2002, he got issued proclamation (CW.2/C) through the learned Illaqa Magistrate, which were also entrusted to Muhammad Ashraf 231/C (CW.2) for execution. On 12-8-2006, Abdul Hameed, S.I. (CW.6) arrested Hazar Khan alias Baggi (appellant) and on personal search, recovered a pistol 30 bore. On 19-8-2006, the appellant allegedly led to the recovery of 8-MM rifle (P.1) from his residential house, which was taken into possession vide recovery memo (Exh. PC). On 25-8-2006, the appellant also got recovered rifle (P.4) along with five live bullets (P.5/1-5) from a graveyard in the area of Chak No.9/EB, which were taken into possession vide recovery memo (Exh.CW.4/A). After completion of investigation, a report under section 173, Code of Criminal Procedure was prepared in this case.
4. Being dissatisfied with the Police investigation, Abdul Sami alias Sami Ullah complainant instituted a private complaint (Exh.PB) on 14-12-2001. Prosecution story, as set out in the private complaint titled as "Abdul Sami alias Sami Ullah versus Hazar Khan alias Baggi etc.", is that on 19-7-2001 at morning time, the complainant along with Abdul Ghafoor and Zaheer Ahmad, witnesses was present at his land situated in Chak No.9/E.B. At about 7.30 a.m. Qudrat Ullah (deceased) son of complainant who was having 8-MM rifle proceeded to his land for cutting fodder. He had not yet started cutting fodder, in the meantime, Hazar Khan alias Baggi (appellant) son of Atta Muhammad, caste Kharal, resident of the same village armed with rifle and Muhammad Nawaz son of Haq Nawaz, caste Bhatti, resident of the same village armed with .12 bore gun emerged there and raised lalkara to Qudrat Ullah not to run away. The complainant as well as Abdul Ghafoor and Zaheer Ahmad on hearing lalkara and noise ran towards the place of occurrence. Within their view, Hazar Khan alias Baggi (appellant) fired with rifle at Qudrat Ullah (deceased) which landed on his nose. Muhammad Nawaz fired with .12 bore gun hitting on left cheek, right side of neck, right shoulder and left biceps of Qudrat Ullah, who fell down in injured condition. Thereafter, Hazar Khan alias Baggi (appellant) fired another shot at Qudrat Ullah which landed on back of his head. On raising hue and cry by the complainant's side, both the accused took away licensed rifle 8-MM of deceased son of the complainant. The complainant party attended Qudrat Ullah who had succumbed to the injuries. Besides the complainant, the occurrence was witnessed by Abdul Ghafoor and Zaheer Ahmad, witnesses. It was alleged in the private complaint that Hazar Khan alias Baggi (appellant) and Muhammad Nawaz had committed this occurrence with pre-planning at the abetment of Ghulam Mustafa son of Saddar Shah, caste Bodla, resident of the same village and the conspiracy was hatched prior to the occurrence at the dera of Ghulam Mustafa Bodla. Motive behind the occurrence as alleged in the private complaint was that two years earlier to this occurrence, Qudrat Ullah (deceased) had caused injuries to Hazar Khan alias Baggi (appellant) and fractured his legs and appellant's side who were fast friends inter se had borne grudge.
It was further alleged in the private complaint that regarding this occurrence, the complainant had got registered F.I.R. No.308 dated 19-7-2001 under sections 302, 379, 109 and 34 P.P.C. at Police Station Saddar Arifwala but the police dishonestly, in connivance with the appellant's side, had not arrested Muhammad Nawaz and Ghulam Mustafa accused and declared them innocent which was against evidence on record. It was also alleged by the complainant that Muhammad Iqbal, Sub-Inspector had not read over to him preliminary report regarding the occurrence because the police was in league with the appellant's side. The police got conducted postmortem examination on the dead body of Qudrat Ullah (deceased) from Tehsil Headquarters Hospital, Arifwala on the same day. At the end of private complaint, the complainant averred that due to dishonest investigation of police, filing of private complaint had become inevitable.
5. After recording cursory evidence in the private complaint, the appellant was summoned by the learned Additional Sessions Judge, Arifwala to face the trial. Copies of relevant documents were provided to him, as required under section 265-C, Code of Criminal Procedure and formal charge under sections 302, 404, 109 and 34, P.P.C. was framed against him on 10-11-2009, to which he pleaded not guilty and claimed trial.
In order to prove its case, prosecution examined four witnesses whereas six persons were called as court witnesses. Ocular account was furnished by Abdul Sami alias Sami Ullah complainant (P.W.1) and Zaheer Ahmad (P.W.2). Medical evidence was furnished by Dr. Rehmat Ali Imran (P.W.4). Abdul Sami alias Sami Ullah complainant (P.W.1) also witnessed the alleged recovery of rifle .8 MM (P.1) at the instance of appellant which was taken into possession vide recovery memo (Exh.PC). Muhammad Saidar Hussain (CW.4) witnessed the alleged recovery of rifle .8-MM (P.4) at the instance of the appellant which was taken into possession vide recovery memo (Exh.CW/A). Ch. Talib Hussain Inspector/S.H.O. (CW.1) and Muhammad Ashraf 231/C (CW.2) furnished the evidence of abscondance of the appellant. Muhammad Iqbal S.I. (CW.5) and Abdul Hameed S.I. (CW.6) investigated this case and while appearing before the learned trial court narrated the various steps taken by them during the course of investigation. The complainant gave up P.W. Abdul Ghafoor being dead, P.Ws. Aish Muhammad and Muhammad Arshad being unnecessary vide statement dated 2-4-2010. Learned Deputy District Public Prosecutor tendered in evidence report of Serologist (Exh.PK) and closed the case of prosecution vide statement dated 21-5-2010. Statement of the appellant under section 342, Code of Criminal Procedure, was recorded on 21-5-2010, wherein he refuted all the allegations of the prosecution and professed his innocence. In answer to a question as to why the case against him and why the prosecution witnesses had deposed against him, the appellant stated as under:
"It is a false case. The P.Ws. are related inter se and with the deceased and they have made false statements against me due to their relationship with the deceased and enmity with me. The P.Ws. were not present at the place of occurrence, at the time of occurrence. In fact, it was a blind murder and the deceased was alone, when he sustained the injuries in the early dark hours."
To another question, had he anything else to say, the appellant replied as under:--
"I am innocent. My co-accused Muhammad Nawaz was convicted in this case by the learned ASJ Arifwala, who was acquitted by the Hon'ble High Court, after dis-believing the eye-witnesses namely Abdul Samee alias Samee Ullah and Zaheer Ahmad. The same two eye-witnesses have appeared at the trial against me now. The judgment of the Hon'ble Lahore High Court, Lahore has not been set aside and is still in the field, the complainant did not challenge the order of acquittal of my co-accused Muhammad Nawaz."
The appellant neither opted to appear as his own witness, in disproof of the prosecution allegations levelled against him, as provided under section 340(2), Code of Criminal Procedure nor produced any evidence in his defence. After conclusion of the trial, the learned trial court convicted and sentenced the appellant as detailed above. Hence this appeal and murder reference.
5-A. Learned counsel for the appellant, in support of this appeal, contends that the appellant has falsely been implicated in this case; that the occurrence allegedly took place at 7:30 a.m. on 19-7-2001 whereas the matter was reported to the Police at 8:30 a.m. and as such there is a delay of one hour in reporting the crime to the Police; that Dr. Rehmat Ali Imran (P.W.4), who conducted the postmortem examination on the dead-body of Qudrat Ullah (deceased) categorically stated in his cross-examination that the dead-body of the deceased was brought in the hospital at 3:25 p.m. whereas the police papers were provided to him at 6:25 p.m. and then he started the postmortem examination; that the Investigating Officer (CW.5) admitted during his cross-examination that Column No.3 of inquest report (Exh.PH) was partly left blank by him where the time of death of deceased is required to be filled which clearly suggests that the machinery of law was set in motion after preliminary inquiry and consultation and matter was not reported to the Police even at the time mentioned in the F.I.R.; that both the witnesses of ocular account namely Abdul Sami alias Sami Ullah complainant (P.W.1) and Zaheer Ahmad (P.W.2) cannot be considered truthful witnesses because neither they were present at the spot at the relevant time nor had they witnessed the occurrence. To substantiate this contention, learned counsel for the appellant contends that initially the alleged occurrence was reported to the police by Abdul Sami alias Sami Ullah complainant (P.W.1) and on his statement F.I.R. No.308/2001 was registered on 19-7-2001 wherein it was the case of complainant that on 19-7-2001 at 7:30 a.m. Qudrat Ullah (deceased) went to his land for cutting fodder where Hazar Khan alias Baggi (appellant) armed with rifle and Muhammad Nawaz (co-accused since acquitted) armed with .12 bore gun came there and that Hazar Khan alias Baggi (appellant) fired with his rifle which landed on the forehead of Qudrat Ullah (deceased) and thereafter Muhammad Nawaz fired with .12 bore gun which landed on the neck and face of Qudrat Ullah and that second fire made by Muhammad Nawaz hit on the back of deceased; that thereafter the complainant instituted the private complaint on 14-12-2001 (after about five months of the occurrence) wherein complainant twisted the story of F.I.R. by stating that the fire made by appellant landed on the nose of Qudrat Ullah (deceased) whereas the fire made by Muhammad Nawaz (accused since acquitted by this court) landed on the left cheek, neck at right side, right shoulder and left biceps of deceased; that thereafter second fire was attributed to the appellant which landed at the head of the deceased at backside; that in the statement of the complainant recorded in the previous trial of Muhammad Nawaz (co-accused of the appellant since acquitted by this court) it was the case of complainant that fire made by appellant landed on neck near the left eye of the deceased but while appearing before the learned trial court in the instant case he attributed only one firearm injury to the appellant on the base of nose of deceased; that in the statement (Exh.DB) recorded by the Police Officer it was the stance of the complainant that when the first fire was made, he had reached near the place of occurrence and saw Hazar Khan alias Baggi and Muhammad Nawaz running away but he had not seen anybody while making the fire; that complainant (P.W.1) was confronted with his previous statements i.e. statement (Exh.DA) got recorded by him in the previous trial of his co-accused namely Muhammad Nawaz and statement (Exh.DB) recorded by the Police Officer and the improvements were brought on the record. So far as the other witness of ocular account namely Zaheer Ahmad (P.W.2) is concerned, learned counsel for the appellant contends that he is a chance witness because the said witness while making statement (Exh.DC) before the Investigating Officer as well as in his statement (Exh.DD) in the previous trial of Muhammad Nawaz (co-accused of the appellant since acquitted) stated that he was residing in Mohallah Pir Sultan Pakpattan which is at a distance of forty miles from the place of occurrence but while appearing before the learned trial court in the instant case he got recorded his residence as Chak No.9/EB Tehsil Arifwala, District Pakpattan Sharif where the alleged incident tool place; that he has not assigned any plausible reason for his presence at the spot at the relevant time and as such he cannot be considered as natural witness of the occurrence; that Zaheer Ahmad (P.W.2) while appearing before the learned trial court also made dishonest improvements, he was confronted with his previous statements i.e. statement (Exh.DC) made before the police and statement (Exh.DD) made before the learned trial court in the previous trial of Muhammad Nawaz (co-accused of the appellant since acquitted by this court) and the improvements were brought on the record. Learned counsel further contends that Muhammad Nawaz co-accused of the appellant who as per F.I.R. caused two firearm injuries on the person of Qudrat Ullah (deceased) was tried earlier, he was convicted by the learned trial court and sentenced to life imprisonment but in appeal preferred on his behalf he was acquitted by this court of the charges levelled against him and the matter was not agitated any further as admitted by the complainant during the course of his cross-examination; that in the earlier trial of Muhammad Nawaz co-accused of the appellant, ocular account was furnished by Abdul Sami alias Sami Ullah complainant and Zaheer Ahmad and is the same position in the instant case and the evidence of both these witnesses which has not been believed in the earlier trial cannot be believed against the appellant in the instant case. So far as medical evidence is concerned, learned counsel for the appellant contends that ocular account to the extent of appellant is in direct conflict with the medical evidence because in the F.I.R. it was the case of prosecution that appellant made only one fire which landed on the forehead of deceased whereas in the private complaint he was attributed two injuries one on the nose and the second on the head of the deceased at backside but in the postmortem examination report (Exh.PF) of Qudrat Ullah (deceased) there is no firearm injury on the forehead and exactly on the nose of deceased. So far as abscondance of the appellant is concerned, learned counsel for the appellant contends that the same has not been proved in accordance with law because no order by the Court who issued warrants and proclamation of the appellant is available on the record; that as per provisions of section 87 Code of Criminal Procedure it is mandatory for the Court who issues the warrants and proclamation of an accused to pass an order in writing that the proclamation was duly published on a specified day but the said procedure was not adopted in this case; that even otherwise abscondance at the most is a corroborative piece of evidence and relevant only if the primary evidence i.e. ocular account inspires confidence which is not the situation in this case. So far as motive is concerned, learned counsel for the appellant contends that motive as set out in the F.I.R. was to the effect that two years prior to the alleged occurrence Qudrat Ullah (deceased) fractured the legs of appellant and the matter was patched up but the appellant nourished grudge and committed the murder of Qudrat Ullah (deceased); that as per own version of the complainant the earlier matter had been patched up and as such there was no reason or occasion for the appellant to commit the murder of the deceased. So far as recovery of .8-MM rifle (P.1) allegedly effected at the instance of appellant which was taken into possession vide recovery memo (Exh.PC) is concerned, learned counsel for the appellant contends that the same is inconsequential because no empty was collected from the spot and no report of Forensic Science Laboratory is available on the record. So far as recovery of .8-MM rifle (P.4) belonging to the deceased allegedly effected at the instance of appellant which was taken into possession vide recovery memo (Exh.CW.4/A) is concerned, learned counsel contends that the same is also not helpful for the prosecution because no license or any other documentary proof has been produced by the complainant's side to prove the factum that the said rifle belongs to the deceased and moreover the learned trial court has held in para No.17 of its judgment that no compelling instances are on record to believe that the rifle recovered from graveyard, in fact, belonged to deceased; that viewing from all angles, the prosecution case is doubtful in nature and the appellant is entitled to the benefit of doubt not…
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