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Petitioner: The State VS Respondent: Javaid
Court Name: Lahore High Court Judge(s): Sardar Muhammad Sarfraz Dogar, Sadiq Mahmud Khurram Title: The State vs Javaid Case No.: Murder Reference No.323 of 2018, Criminal Appeal No. 240557 of 2018 Date of Judgment:2022-05-25 Reported As: 2022 LHC 5253 Result: Appeal Allowed
JUDGMENT
JUDGMENT SADIQ MAHMUD KHURRAM, J. Javaid son of Muhammad Boota (convict) was tried along with Haroon, Javed Khan son of Sardar Khan, Muhammad Boota, Muhammad Mobeen, Mst. Sajida Bibi, Muhammad Naveed, Sajjad Hussain, Waqas, Abdul Aleem and Haider Ali, the co-accused of the convict, all since acquitted, by the learned Additional Sessions Judge, Lahore in the case F.I.R. No. 651 of 2012 dated 15.08.2012 registered in respect of offences under sections 302, 452,148 and 149 P.P.C. at the Police Station City Raiwind, District Lahore for committing the Qatl-i-Amd of Farman Ali son of Muhammad Anwar (deceased). The learned trial court vide judgment dated 03.10.2018, convicted Javaid son of Muhammad Boota (convict) and sentenced him as under: Javaid son of Muhammad Boota: Death under section 302(b) P.P.C. as Tazir for committing Qatl-i-Amd of Farman Ali son of Muhammad Anwar (deceased) and directed to pay Rs.800,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased, in case of default thereof, the convict was directed to further undergo six months of simple imprisonment. The convict was ordered to be hanged by his neck till dead. The convict was extended the benefit available under Section 382-B of Code of Criminal Procedure, 1898. The convict was, however , acquitted from the charges under sections 452,148 and 149 P .P.C. Haroon, Javed Khan son of Sardar Khan, Muhammad Boota, Muhammad Mobee n, Mst. Sajida Bibi, Muhammad Naveed, Sajjad Hussain, Waqas, Abdul Aleem and Haider Ali, the co-accused of the convict, were acquitted by the learned trial court. 2. Feeling aggrieved, Javaid son of Muhammad Boota (convict) lodged the Criminal Appeal No. 240557 of 2018, assailing his conviction and sentence. The learned trial court submitted Murder Reference No.323 of 2018 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely
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Javaid son of Muhammad Boota. We intend to dispose of the Criminal Appeal No. 240557 of 2018 and the Murder Reference No.323 of 2018 through this single judgment. 3. Precisely , the necessary facts of the prosecution case, as narrated by Ghulam Abbas (PW-2) , the complainant of the case are as under:- "27/28 months before at about 06.00/07.00 p.m. a quarrel took place between Mst. Sajida Bibi and his mother Mst. Bavi in our house situated at Unchay Ladhayke. I came in the house and reprimanded Mst. Sajida Bibi as well as Mst. Bavi. Then Mst. Sajida Bibi made telephonic call to her family and inform ed about the quarrel. At about 10.00/1 1.00 p.m. Muhammad Boota, Javaid, Waqas, Sajjad, Abbas, Naveed and 3/4 other persons came to our house. Muhammad Boota raised lalkara that they be killed, on which Javaid made fire which hit on the chest of my brother Farman Ali on left side. Then Sajjad made fire which landed on the right flank of Farman Ali. Naveed and other persons also made firing and threatened that whoever will move will be killed. Then accused went out while making firing. Accused have come on a Toyota. When accused tied to escape from place of occurrence, they were apprehended by people of village. I made telephonic call on 15 and informed them about the occurrence. Police reached the place of occurrence in 30/45 minutes. I made application Ex. P.A. to police for registration of case, which was thumb marked by me. W e took Farman Ali to hospital but he died on the way ." 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. The learned trial court framed the charge against the accused on 30.08.2014, to which the accused pleaded not guilty and claimed trial. 5. The prosecution in order to prove its case got statements of as many as fourteen witnesses recorded. The ocular account of the case was furnished by Mst. Mumtaz Bibi (PW-1),Ghulam Abbas (PW-2) and Qadir Ali (PW-3). Syed Muhammad Younis Bukhari, Draftsman (PW-4) prepared the scaled site plan of the place of occurrence (Exh. P.D.). Muhammad Sharif , A.S.I. (PW-5) stated that on 15.08.2012, the Investigat ing Officer of the case , handed over three sealed parcels said to contain the blood stained earth , empties and a piece of a bullet recovered from the place of occurrence and on 17.08.2012, the Investigating Officer of the case, handed over to him a sealed parcel said to contain a gun and on 27.08.2012, he handed over all the sealed parcels to Basharat Ali 3628/C (PW- 6) for their onward transmission to the office of the Punjab Forensic Science Agency , Lahore. Muhammad Sharif , A.S.I. (PW-5), further stated that on 28.08.2012, the Investigating Officer of the case, handed over to him a sealed parcel said to contain a pistol which on 30.08.2012 he handed over the said parcel to Basharat Ali 3628/C (PW-6) for its onward transmission to the office of the Punjab Forensic Science Agency , Lahore. Allah Ditta 12916/C (PW- 7) stated that on 15.08.2012 the Investigating Officer of the case , handed over to him the dead body of the deceased for escorting the same to the hospital and the Medical Officer handed over to him the last worn clothes of the deceased after post mortem examination. Amjad Ali, SI (PW-9) stated that on 15.08.2012, he recorded the formal F.I.R (Exh. P.H.). Gulzar Ahmd, SI (PW-10) stated that on 15.08.2012, he received the application (Exh. P.A.) of Ghulam Abbas (PW-2) and sent the same to the Police Station for the registration of the F.I.R. Muhammad Akram (PW-12) stated that he identified the dead body of the deceased. Muhammad Sarwar , SI (PW-14) investigated the case from 15.08.2012 till 31.08.2012 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court. 6. The prosecution also got Dr. Iftikhar (PW-11) examined, who on 15.08.2012, was posted at the Department of Forensic Medicine at Allama Iqbal Medical College,Lahore and on the same day conducted the postmortem examination of the dead body of Farman Ali son of Muhammad Anwar (deceased). Dr. Iftikhar (PW-11), on examining the dead body of Farman Ali son of Muhammad Anwar (deceased) observed as under:- "INJURIES: Injury No. 1: Entry wound 2 x 1.5 cm with collar of abrasion on mid epigastrum, 16-cm from right nipple and 17-cm from umbilical Injury No.2-A: Entry wound 1.5 x 1.7 cm on left to injury No.1 i.e. 12-cm from left nipple and 7-cm from umbilical. Injury No.2-B:
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Exit wound 1.5 x 1 cm on lateral side of abdomen. OPINION. The autopsy findings revealed that all injuries were ante-mortem caused by firearm. The injury No.1 caused damage to vital organs i.e. liver and major blood vessels that caused severe hemorrhage shock and death in ordinary course of nature." 7. On 08.12.2016, the learned Assistant District Public Prosecutor gave up the prosecution witnesses namely Liaqat Ali, Mst. Bavi Bibi,Ghulam Murtaza and Muhammad Amin as being unnecessary . On 21.09.2015, the learned Assistant District Public Prosecutor gave up the prosecution witnesses namely Muhammad Akhtar , A.S.I. and Muhammad Sharif 5199/C as being unnecessary . On 17.04.2017, the learned Assistant District Public Prosecutor closed the prosecution evidence after tendering in evidence the reports of Punjab Forensic Science Agency , Lahore (Exh. P .U. and Exh. P .V.). 8. After the closure of prosecution evidence, the learned trial court examined the accused under section 342 Cr.P.C. and in answer to the question why this case against you and why the P.W.s have deposed against you, the appellant namely Javaid son of Muhamm ad Boota replied that he had been involved in the case falsely and was innocent. The appellant namely Javaid son of Muhammad Boota opted not to get himself examined under section 340(2) Cr .P.C. and did not adduce any evidence in his defence. 9. At the conclusion of the trial, the learned Additional Sessions Judge, Lahore convicted and sentenced the appellant namely Javaid son of Muhammad Boota as referred to above. 10. The contention of the learned counsel for the appellant precisely is that the whole case is fabricated and false and the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible, and relevant evidence. Learned counsel for the appellant further contended that the story of the prosecution mentioned in the statements of the witnesses, on the face of it, is highly improbable. Learned counsel for the appellant further contended that the statements of the prosecution witnesses were not worthy of any reliance. The learned counsel for the appellant also submitted that the recoveries made in the case were full of procedural defects, of no legal worth and value, and were the result of fake proce edings. The learned counsel for the appellant also argued that the appellant had been involved in the occurrence only on suspicion. The learned counsel for the appellant finally submitte d that the prosecution had totally failed to prove the case against the accused beyond the shadow of a doubt. 11. On the other hand, the learned Deputy Prosecutor General along with the learn ed counsel for the complainant, contended that the prosecution has proved its case beyond the shadow of doubt by producing independent witnesses. The learned Deputy Prosecutor General along with the learned coun sel for the complainant, further argued that the deceased died as a result of injuries suffered at the hands of the appellant namely Javaid son of Muhammad Boota. The learned Deputy Prosecutor General along with the learned counsel for the complainant, further contended that the medical eviden ce also corroborated the statements of Mst. Mumtaz Bibi (PW-1), Ghulam Abbas (PW-2) and Qadir Ali (PW-3) . The learned Deputy Prosecutor General along with the learned counsel for the complainant, further argued that the recovery of the pistol (P-7) from the appellant namely Javaid son of Muhammad Boota and the report of Punjab Forensic Science Agency , Lahore (Exh. P.V.) also corroborated the ocular account. The learned Deputy Prosecutor General along with the learned counsel for the complainant, further 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 , the learned Deputy Prosecutor General along with the learned counsel for the complainant prayed for the rejection of the appeal as lodged by the appellant namely Javaid son of Muhammad Boota. 12. We have heard the learned counsel for the appellant, the learned counsel for the complainant, the learned Deputy Prosecutor General and with their able assistance perused the record and evidence recorded during the trial. 13. The whole prosecution case revolves around the statements of the prosecution witnesses namely Mst. Mumtaz Bibi (PW-1), Ghulam Abbas (PW-2) and Qadir Ali (PW-3) , the eyewitnesses of the occurrence. The relationship of the prosecution witnesses namely Mst. Mumtaz Bibi (PW-1), Ghulam Abbas (PW-2) and Qadir Ali (PW-3) , with the
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deceased, is on record. Farman Ali (deceased) was the husband of Mst. Mumtaz Bibi (PW-1) and the real brother of Ghulam Abbas (PW-2) and Qadir Ali (PW-3). The prosecution witness namely Mst. Mumtaz Bibi (PW-1) during cross-examination explained as under:- "Ghulam Abbas complainant is real brothe r of deceased. Mst. Bavi Bibi is mother of deceased. Qadir Ali and Liaqat Ali are brothers of deceased. Mst. Bashiran Bibi is wife of Ghulam Abbas complainant. Ghulam Murtaza PW is cousin of deceased. Amin and Akram PWs are maternal uncles (Mamo) of deceased." Though it is also a fact that the prosecution witnesses namely Mst. Mumtaz Bibi (PW-1), Ghulam Abbas (PW-2) and Qadir Ali (PW-3) lived in the same house as the deceased and the occurrence had also taken place in the courtyard of the said house, but a scrutiny of the statements of the prosecution witnesses namely Mst. Mumtaz Bibi (PW-1), Ghulam Abbas (PW-2) and Qadi r Ali (PW-3) reveals that they failed to prove the facts in issue and their evidence was proved to be inconsistent as well as worthy of no reliance. At the very outset, it is obvious from the perusal of the written application (Exh. P.A.) submitted by the prosecution witness namely Ghulam Abbas (PW-2) for the registration of the F.I.R that the time of occurrence was not mentioned in the same, though it had been mentioned that the occurrence had taken place on 14.08.2012. While appearing before the learned trial court, the prosecution witness namely Ghulam Abbas (PW-2) improved upon his statement and stated that the occurrence had taken place at about 10/11.00 p.m. on the night of 14th August, 2012, however was duly confronted with his application (Exh. P.A.) submitted by him for the registration of the F.I.R and the learned trial court observed as under:- "I mentioned in Ex PA that occurrence took place at 10.00/1 1.00 p.m. Confronted with Ex. P.A. where it is not so recorded." Muhammad Sarwar , SI (PW-14), the Investigating Officer of the case also admitted that the prosecution witnesses namely Mst. Mumtaz Bibi (PW-1), Ghulam Abbas (PW-2) and Qadir Ali (PW-3) did not mention the time of occurrence as long as he continued the investigation of the case. During cross-examination Muhammad Sarwar , SI (PW-14), the Investigating Of ficer of the case, explained as under:- "No time of occurrence is mentioned in complaint as well as in F.I.R. Supplementary statement of complainant was recorded by me. Complainant has also not mentioned time of occurrence in supplementary statement. During whole investigation, complainant has not told the time of occurrence." (emphasis supplied) In this manner , it was brought on record that at the time of the submission of the written application (Exh. P.A.) for the registration of the F.I.R , and even during the whole investigation of the case, the time of occurrence was not mentioned by the prosecution witnesses namely Mst. Mumtaz Bibi (PW-1), Ghulam Abbas (PW-2) and Qadir Ali (PW-3) . Had the prosecution witnesses namely Mst. Mumtaz Bibi (PW-1), Ghulam Abbas (PW-2) and Qadir Ali (PW-3) witnessed the occurrence then they definitely would have given the time when the same had taken place, but their failure in this regard proves that they had not seen the occurrence. Comp ounding further the matter is the fact that none of the prosecution witnesses namely Mst. Mumtaz Bibi (PW-1), Ghulam Abbas (PW-2) and Qadir Ali (PW-3), in their statements recorded by the Investigating Officer of the case or in their statements recorded by the learned trial court , stated that there existe d any light source which was lit at the place of occurrence , at the time of occurrence, which occurrence was admittedly taking place at dead of the night, which could have enabled the prosecution witnesses namely Mst. Mumtaz Bibi (PW-1), Ghulam Abbas (PW-2) and Qadir Ali (PW-3) to have witnessed the occurrence and observe the details thereof. The Investigating Officer of the case, also did not take into possession any such source of light which was available and lit at the place of occurrence, at the time of occurrence, which could have enabled the prosecution witnesses namely Mst. Mum taz Bibi (PW-1), Ghulam Abbas (PW-2) and Qadir Ali (PW-3) to observe the occurrence. The prosecution witness namely Mst. Mumtaz Bibi (PW-1) during cross-examination candidly admitted to the said omission in mentioning the source of light available at the place of occurrence and stated as under:- "I have not stated the source of light in my examination in chief" We have also ourselves perused the scaled site plan of the place of occurrence (Exh. P.D.) as prepared by the Syed Muhammad Younis Bukhari, Draftsman (PW-4) and the rough site plan of the place of occurrence (Exh. P.P.) as prepared by the Muhammad Sarwar , SI (PW-14) and have noted that no source of light was mentioned in the
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said site plans (Exh. P.D. and Exh. P.P.) so as to prove that sufficient light was present at the place of occurrence at the time of occurrence for the witnesses to make a positive identity of the assailants, despite the fact that as per prosecution' s own claim ,the occurrence had taken place during the night. The prosecution failed to establish the fact of such availability of any light source and in the absence of their ability to do so, we cannot presume the existence of such a light source on our own. The absence of any light source has put the whole prosecution case in murk. The failure of the prosecution witnesses to prove the presence of any light source at the place of occurrence, at the time of occurrence has repercussions, entailing the failure of the prosecution case. Reliance is placed on the case of "Gulfam and another v. The State" (2017 SCMR 1189) wherein the august Supreme Court of Pakistan observed as under:- "The occurrence in this case had taken place at about 11.45 p.m. during the fatefu l night and the source of light at the spot had never been established by the prosecution. It had been presumed by the courts below that as the occurrence had taken place at a medical store, therefore, some electric light must be available at the spot. The courts below ought to have realized that presumptions have very little scope in a criminal case unless such presumption is allowed by the law to be raised" Reliance is also placed on the case of "Hameed Gul v. Tahir and two others" (2006 SCMR 1628 ) wherein the august Supreme Court of Pakistan observed as under:- "Next is the identification of the accused on the spot. The torch in the light of which the accused were identified, was produced before the Investigating Officer sixteen days after the occurren ce. The one Haid Akbar who produced the same before he Investigating Officer was never produced at the trial and hence there is no satisfactory evidence that the torch produced in the given circumstances was the same, available at the time of occurrence. It was never found on the spot along with other recoveries though there was no occasion for the injured and the deceased to have carried it along." Reliance is also placed on the case of "Basar Vs. Zulfiqar Ali and others" (2010 SCMR 1972 ) wherein the august Supreme Court of Pakistan observed as under:- "7. It is also alleged by the prosecutio n that the witnesses had identified the culprits on torch lights. The complainant and P.Ws. did not produce the torches before the police immediately but the same were produced after 10 days of the incident. 8. Considering all aspects of the case, we are of the view that the prosecution has failed to prove the case against the respondents beyond any reasonable doubt." Reliance is also placed on the case of "Azhar Mehmood and others v. The State" (2017 SCMR 135) wherein the august Supreme Court of Pakistan observed as under:- "It has straightaway been noticed by us that the occurrence in this case had taken place after dark and in the F.I.R. no source of light at the spot had been mentioned by the complainant. Although in the site-plan of the place of occurrence availability of an electric bulb near the spot had been shown yet no such bulb had been secured by the investigating officer during the investigation of this case." Reliance is also placed on the case of "Arshad Khan v. The State" (2017 SCMR 564) wherein the august Supreme Court of Pakistan observed as under:- "The occurrence in this case had taken place before Fajar prayers at about 05.00 a.m. and according to the F.I.R. the occurrence in issue had been witnessed by the eye-witness in the light of an electric bulb but during the investigation no such electric bulb had been secured by the investigating officer ." 15. We have also noted that according to the prosecution witnesses namely Mst. Mumtaz Bibi (PW-1), Ghulam Abbas (PW-2) and Qadir Ali (PW-3) , the motive of the occurrence was that the prosecution witness namely Ghulam Abbas (PW-2) had reprimanded Mst. Sajida Bibi (since acquitted), the sister of the appellant and it was Mst. Sajida Bibi (since acquitted) who told her parents about the said act of the prosecution witness namely Ghulam Abbas (PW-2), who thereafter arrived at the place of occurrence along with the appellant. The prosecution witness namely Ghulam Abbas (PW -2) in his statement before the learned trial court stated as under:- "I came in the house and reprimanded Mst. Sajida Bibi as well as Mst. Bavi. Then Mst. Sajida Bibi made telephonic call to her family and informed about the quarrel. "
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Similar statements were made by the prosecution witnesses namely Mst. Mumtaz Bibi (PW-1) and Qadir Ali (PW- 3). In these circumstances, the prosecution witness namely Ghulam Abbas (PW-2) should have been the prime target of the assailants. Furthermore, according to the prosecution witnesses namely Mst. Mumtaz Bibi (PW-1), Ghulam Abbas (PW-2) and Qadir Ali (PW-3) , the prosecution witness namely Ghulam Abbas (PW-2) was in clear view, at a meagre distance, from the assailants and unarmed whereas the accused were allegedly armed with various firearm weapons. Neither there was any dearth of ammunition nor that of intent and opportunity on part of the appellant or his co-accused for not doing away with the prosecution witness namely Ghulam Abbas (PW-2) , their main adversary , who at the time of occurrence, was present at the place of occurrence and there did not exist any obstacle in the line of the sight of the accused and the place where the prosecution witness namely Ghulam Abbas (PW-2) was present . The prosecution witness namely Mst. Mumtaz Bibi (PW-1) during cross-examination stated as under:- "There was no dispute or quarrel between Farman Ali deceased and accused Mst. Sajida Bibi. Similarly , accused Muhammad Boota was having no dispute with the deceased before the occurrence. Both Ghulam Abbas and Farman Ali were sitting at a distance of 3/4 feet from each other at the time of occurrence ." The prosecution witness namely Ghulam Abbas (PW -2) admitted during cross-examination as under:- "I was also towards Northern side of tree. Distance between me and Farman Ali at the time of occurrence was 4/5 feet. " In this scenario, it is hard to believe that the prosecution witness namely Ghulam Abbas (PW-2) would have been shown the courtesy of being not fired at all, when Ghulam Abbas (PW-2) should have been the prime target of the assailants . In the midst of firing by so many accused persons, the prosecution witness namely Ghulam Abbas (PW-2) did not receive even a single scratch on his body during the whole occurr ence. If the prosecution witness namely Ghulam Abbas (PW-2) had been present in the view of the assailants, then he would not have been spared. Blessing the prosecution witness namely Ghulam Abbas (PW-2) with such an incredible consideration and showing him such favour , the person with whom the assailants had a direct dispute with, is implausible and opposed to the natural behaviour of any accused. It is all the more illogical that being perceptive of the fact that if the witnesses were left alive, they would depose against the accused, even then the appellant and his co-accused did not cause any injury to them. Such behaviour , on part of the accused as deposed by the prosecution witnesses namely Mst. Mumtaz Bibi (PW-1), Ghulam Abbas (PW-2) and Qadir Ali (PW-3) runs counter to natural human conduct and behaviour . Article 129 of the Qanun-e-Shahadat Order , 1984 allows the courts to presume the existence of any fact, which it thinks likely to have happened, regard being had to the common course of natural events and human conduct in relation to the facts of the particular case. We thus trust the existence of this fact, by virtue of the Article 129 of the Qanun-e-Shahadat Order , 1984, that the conduct of the assailants, as deposed to by the prosecution witnesses namely Mst. Mumtaz Bibi (PW-1), Ghulam Abbas (PW-2) and Qadir Ali (PW-3), was opposed to the common course of natural events and human conduct. Hence, we are holding that the prosecution witnesses namely Mst. Mumtaz Bibi (PW-1), Ghulam Abbas (PW-2) and Qadir Ali (PW-3) did not witness the occurrence. The august Supreme Court of Pakistan in its binding judgments has repeatedly held that in a scenario where the motivation was against the complainant or the witnesses but the accused did not cause any harm to them, notwithstanding being within the range of their firing, would reveal that the said witnesses had not witnessed the occurrence. The august Supreme Court of Pakistan in case Tariq Mehmood v. The State and others (2019 SCMR 1…
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