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Petitioner: The State VS Respondent: Muhammad Siddique
Court Name: Lahore High Court Judge(s): Sadiq Mahmud Khurram, Anwaar Hussain Title: The State vs Muhammad Siddique Case No.: Murder Reference No. 04 of 2021, Criminal Appeal No. 98 of 2021 Date of Judgment:2022-06-29 Reported As: 2022 LHC 5442 Result: Appeal Allowed
JUDGMENT
JUDGMENT SADIQ MAHMUD KHURRAM, J. Muhammad Siddique son of Muhammad Rafique (convict) was tried along with Zahoor Ahmad, Abdullah, Pappu, Aslam, Sadiq, Allah Diwaya and Abdul Hameed alias Meedoo, the co-accused of the convict (all since acquitted) by the learned Additional Sessions Judge, Lodhran in the case instituted upon the private complaint titled "Muhammad Shahid Vs. Muhammad Siddique and seven others" (relating to F.I.R. No. 357 of 2019 dated 05.05.2019 registered at Police Station Saddar Lodhran District Lodhran) in respect of offences under sections 302, 148, 149 and 109 P.P.C. for committing the Qatl-i-Amd of Muhammad Ashraf son of Muhammad Hanif (deceased). The learned trial court vide judgment dated 17.02.2021, convicted Muhammad Siddique son of Muhammad Rafique (convict) and sentenced him as infra: Muhammad Siddique son of Muhammad Rafique: Death under section 302(b) P.P.C. as Tazir for committing Qatl-i-Amd of Muhammad Ashraf son of Muhammad Hanif (deceased) and directed to pay Rs.200,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased namely Muhammad Ashraf son of Muhammad Hanif (deceased); in case of default thereof, the convict was directed to undergo further simple imprisonment for six months. The convict was ordered to be hanged by his neck till dead. Zahoor Ahmad, Abdullah, Pappu, Aslam, Sadiq, Allah Diwaya and Abdul Hameed alias Meedoo, the co-accused of the convict, were acquitted by the learned trial court. 2. Feeling aggrieved, Muhammad Siddique son of Muhammad Rafique (convict), lodged the Criminal Appeal No.98 of 2021 assailing his conviction and sentence. The learned trial court submitted Murder Reference No.04 of 2021 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant, namely Muhammad Siddique son of Muhammad Rafique. We intend to dispose of the Criminal Appeal No. 98 of 2021 and the Murder Reference No.04 of 2021 through this single judgment.
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3. Precisely , the necessary facts of the prosecution case, as stated by Muhammad Shahid (PW-2), the complainant of the case, are as under:- "Stated that my real uncle namely Muhammad Ayub convicted in case FIR No.361/19, u/s 302 PPC, PS City, Lodhran and was confined in New Central Jail, Bahawalpur . On 05.05.2019 at about 07:00/08:00 AM, my father Muhammad Ashraf was on his own motorcycle bearing registration No. 3624 LDK and I was alongwith Allah Rakha and Muhammad Akram on another motorcycle and were going to Basti Punnu Wala, Mouza Lalay Wala to fields of Muhammad Ayub for threshing wheat crops. When we reached at Chah Badal Wala, Mouza Lalay Wala we were ahead from my father , suddenly accused persons namely Muhammad Saddique, Zahoor Ahmed, Abdullah, Pappu and Muhammad Aslam armed with pistol 30-bore reached near Chah Badal Wala. The accused persons stopped my father on gun point near Chah Badal Wala. On hue and cry of my father , we reached at the spot and saw that accused Zahoor made a lalkara to teach a lesson to Muhammad Ashraf for supporting his brother Muhammad Ayub and bhabhi Mst. Hamidan Bibi in previous case FIR No.361/19, PS City, Lodhran. I tried to rescue my father Muhammad Ashraf with the help of other PWS but accused persons threatened us if we came near they would killed us Within our view accused Muhammad Saddique present before the court made fire with his pistol 30-bore which hit on the right side of head of my father and made second fire which landed on the right side of chest of my father , my father fell down on earth from his motorcycle. Accused Muhammad Saddique made third fire with pistol 30-bore but fire was missed. After that accused Muhammad Saddique put out another pistol 30-bore from his nepha and made fourth fire which hit on the left side of chest of my father . The accused Zahoor present before the court made fire with pistol 30-bore which hit on the right side of mouth of my father and made second fire which hit on the right thigh of my father . Accused Abdullah present before the court made fire shot with pistol 30-bore which landed on the right side of belly of my father and made second fire which hit on left armpit on left shoulder of my father . Accused Pappu made a fire shot with his pistol 30-bore which landed on the right knee of my father and second fire shot which hit on the finger of right hand of my father . Accused Muham mad Aslam made fire shot with pistol 30 bore which hit on the upper lip of my father , second fire shot landed on left side of the upper lip of my father . He also made third fire shot which landed on left side of belly of my father . All the accused persons made repeatedly fires which hit on the different parts of body of my father and my father succumbed to the injuries at the spot. All the accused persons killed my father on the abetment of accused namely Muhammad Sadiq, Allah Diwaya and Abdul Hameed alias Meedu. After that all the accused persons fled away to the western side of place of occurrence by riding their motorcycles upon seeing the other respectables of the locality . Motive behind the occurrence is that my paternal uncle Muhammad Ayub contracted love marriage with Mst. Hamidan Bibi d/o Ghulam Qadir ten years prior to the occurrence and Abdul Ghafoor brother of the accused Muhammad Saddique, had been murdered by anyone but my real uncle Ayub was convicted and confined in New Central Jail. Bahawalpur . My father , Muhammad Ashraf (since deceased) pursued this murder case. Due to this grudge all the accused persons killed my father . Police recorded my statement as well as statements of PWs. Police did not recorded (sic) our statements as we narrated. Police did not investigate the case properly and not arrested all the accused persons except Saddique and Aslam upon which I filed complaint Exh.PB which also bears my thumb impression Exh.PB/1. All the accused persons are real culprits, they committed the murder of my father Muhammad Ashraf. They be punished in accordance with law ." 4. The accused were summoned to face trial in the case instituted upon the private complaint titled "Muhammad Shahid Vs. Muhammad Siddique and seven others" (relating to F.I.R. No. 357 of 2019 dated 05.05.2019 registered at Police Station Saddar Lodhran District Lodhran) in respect of offences under sections 302, 148, 149 and 109 P.P.C. for committing the Qatl-i-Amd of Muhammad Ashraf son of Muhammad Hanif (deceased). The learned trial court framed the charge against the accused on 17.02.2020, to which the accused pleaded not guilty and claimed trial. 5. The complainant of the case in order to prove its case got statements of as many as ten witnesses recorded. The ocular account of the case was furnished by Muhammad Shahid (PW-2) and Muhammad Akram (PW-3). Khalil Ahmad (PW-1) stated that on 05.05.2019 he identified the dead body of the deceased at the time of its post mortem examination and the Medical Officer handed over the last worn clothes of the deceased to the police officer
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in his presence. Haider Aziz, JFS (PW-4) stated that on 05.05.2019, he prepared four sealed parcels containing empty shells recovered from the place of occurrence and the swabs taken from the dead body and handed over the said parcels to Abid Hussain, SI (PW-9). Qaisar Ameer , 83/HC (PW-5) stated that on 05.05.2019, he got recorded the formal F.I.R (Exh.PG) and on the same day Abid Hussain SI (PW-9) , the Investigating Officer of the case , handed over to him various parcels said to contain the blood stained earth , empty shells , swabs taken from the dead body of the deceased , for keeping them in safe custody and on 07.05.2019, he handed over the said parcels to Abid Hussain, SI (PW-9) for their onward transmission to the office of the Punjab Forensic Science Agency , Lahore and that on 12.06.2019, Abid Hussain, SI (PW-9) handed over the said sealed parcels said to contain a pistol and another pistol said to contain a magazine, which on 24.06.2019, he handed over both the parcels to Abid Hussain SI (PW-9) for their onward transmission to the office of the Punjab Forensic Science Agency , Lahore. Syed Hassan Abbas, Patwari (PW-6) prepared the scaled site plan of the place of occurrence (Exh.PH). Muhammad Imran 655/C (PW-7) stated that on 05.05.2019, he escorted the dead body of the deceased to the hospital for post mortem examination and also received the last worn clothes of the deceased from the Medical Officer, which clothes he handed over to the Investigating Officer of the case. Muhammad Iqbal 776/C (PW-8) stated that on 12.06.2019, the appellant namely Muhammad Siddique got recovered two pistols (P-10 and P-11) along with a magazine (P12) and one live bullet (P-13), which were taken into possession by the Investigating Officer of the case vide recovery memo (Exh.PI). Muhammad Iqbal 776/C (PW-8) further stated that on 12.06.2019, Muhammad Aslam (since acquitted), the co-accused of the appellant, got recovered a motorcycle. Abid Hussain SI (PW-9) investigated the case from 05.05.2019 till 24.06.2019, arrested the appellant on 30.05.2019 and detailed the facts of the investigation conducted by him in his statement before the learned trial court. 6. The learned trial court also examined Zubair Ahmad, SI (CW-1) as a court witness who stated that he investigated the case from 22.06.2019 to 11.08.2019 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court. 7. The learned trial court also examined Dr. Ali Hassan (PW-10), who on 29.05.2019 was posted as Medical Officer at DHQ, Lodhran and on the same day conducted the post mortem examination of the dead body of the deceased, namely Muhammad Ashraf son of Muhammad Hanif. Dr. Ali Hassan (PW-10) on examining the dead body of the deceased namely Muhammad Ashraf son of Muhammad Hanif, observed as under:- "DESCRIPTION OF INJURIES Injury No. 1. A lacerated wound of size about 03 CM X 01 CM. present on right side of skull approx.. 03 cm above right ear, the margins of wound were inverted, burn marks were present around wound and skull bone was shattered/fractures (entry wound). Injury No.2. A lacerated wound of size about 07 CM X 03 CM, present on left side of skull approx.. 05 cm above & posterior to left ear, the margins of wound were averted. The brain matter was oozing from wound and skull bone was shattered/fractures (exit wound). Clotted blood was present Injury No.3. A lacerated wound of size about 1.25 CM X 01.25 CM, present approx. 02 cm above left upper lip, the margins of wound were inverted, burn marks were present around wound (Entry wound). The wound was going deep Injury No.4. A lacerated wound of size 08 CM X 03 CM. present on occipital region of skull, the margins of wound were everted, the brain matter was oozing from wound. Skull bone was shattered/fractures (Exit wound). Clotted blood was present. Injury No.5. A lacerated wound of size approx 01 CM X 01 CM, present on right side of chest approx. 03 cm above right nipple, the margins of wound were inverted, burn marks were present around wound (entry wound). Right lung was lacerated. The wound was going deep.
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There was a lacerated wound of size approx 1 Cm X 1 CM present on left side of chest approx 02.5 cm above left nipple, the margins of wound were inverted, burn marks were present around wound (entry wound). The left lung and heart were lacerated. The wound was going deep. Injury No.6. There was a lacerated wound of size approx 1 Cm X 1 CM present on left side of abdomen approx 07 CM away and above umbilicus, the margins of wound were inverted, burn marks were present around wound (entry wound). The wound was going deep. The intestine was lacerated/punctured. Injury No.7. There was a lacerated wound of size approx 01 Cm X 1 CM present in left axilla, the margins of wound were inverted, burn marks were present around wound (entry wound). The left lung was lacerated. The wound was going deep. Injury No.8. There was a lacerated wound of size approx 1.5 Cm X 1.5 CM present on middle finger of right hand, bone was exposed and fractures. Clotted blood was present. The finger was partially amputated. Injury No.9. There was a lacerated wound of size approx 1 Cm X 1 CM present on anterior aspect of right thigh (mid), the margins of wound were inverted, burn marks were present around wound (entry wound). The wound was going deep. Injury No.10. There was a lacerated wound of size approx 1 Cm X 1 CM present on inner aspect of left thigh 7 cm above knee, the margins of wound were inverted, burn marks were present around wound (entry wound). The wound was going deep. Injury No.1 1. There was a lacerated wound of size approx 2.5 Cm X 2.5 CM present on back approx at level of thoraco-lumber spine on right side, the margins of wound were everted, the blood was oozing from wound, vertebra fractures (Exit wound) Injury No.12. There was a lacerated wound of size approx 2.5 Cm X 2.5 CM present on back approx 04 cm away from injury No.11 on left side, the margins of wound were everted, the blood was oozing from wound (Eat wound). Injury No. 13. There was a lacerated wound of size approx 2.5 Cm X 2.5 CM present on back approx 04 cm below from injury No 12, the margins of wound were everted, the blood was oozing from wound (Exit wound). Injury No.14. There was a lacerated wound of size approx 1 Cm X 1 CM present on right side of abdomen approx. 10 cm away and above umbilicus, the margins of wound were Inverted, burn marks were present around wound (Exit wound). The wound was going deep. The intestine and liver were lacerated/punctured. Injury No.15. There was a lacerated wound of size approx 2.5 Cm X 2.5 CM present on back approx. 04 am above from injury No. 12. the margins of wound were everted, the blood was oozing from wound (Exit wound). Injury No.16. There was a lacerated wound of size approx 2.5 Cm X 2.5 CM present on back approx. 06 cm above from injury No.15, the margins of wound were everted, the blood was oozing from wound (Exit wound) Injury No.17. There was a lacerated wound of size approx 2.5 Cm X 2.5 CM present on posterior aspect of right thigh middle. The margins of wound were everted, Clotted blood was present (Exit wound) Injury No.18. There was a lacerated wound of size approx 2.5 Cm X 2.5 CM present on posterio r aspect of left thigh middle, the margins of wound were everted, Clotted blood was present (Exit wound).
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Injury No.19. There was a lacerated wound of size approx 1.5 Cm X 1.5 CM present on right side of face approx 03 cm below from injury No.1, the margins of wound were inverted, the burn marks were present around wound, and mandible bone was fractured (Entry wound). Injury No.20. There was a lacerated wound of size approx 1 Cm X 1 CM present on upper aspect of right knee, the margins of wound were inverted, the burn marks were present around wound (Entry wound) The wound was going deep. Injury No.21. There was a lacerated wound of size approx 2.5 Cm X 2.5 CM present on posterior aspect of right knee, the margins of wound were everted, Clotted blood was present (Exit wound. FINAL OPINON. After receiving the report of histopathology , toxicology report and radiology report, l am the opinion of that the patient had multiple firearm injuries and the death of patient was due to excessive blood loss (hemorrhage) in ordinary course of nature injury No.1 to 5 are collectively as well as separately are suf ficient to cause death." 8. On 12.11.2020, the learned counsel for the complainant gave up the witnesses namely Allah Rakha and Muhammad Nawab as being unnecessary . On 27.01.2021, the learned counsel for the complainant gave up the prosecution witness, namely Sher Afzal 201/C as being unnecessary and closed the prosecution evidence after tendering the reports of the the Punjab Forensic Science Agency , Lahore (Exh.PR, Exh.PS, Exh.PT and Exh.PU). 9. After the closure of prosecution evidence, the learned trial court examined the appellant, namely Muhammad Siddique son of Muhammad Rafique 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, he replied that he had been involved in the case falsely and was innocent. The appellant, namely Muhammad Siddique son of Muhammad Rafique, opted not to get himself examined under section 340(2) Cr .P.C, and did not adduce any evidence in their defence. 10. At the conclusion of the trial, the learned Additional Sessions Judge, Lodhran convicted and sentenced the appellant as referred to above. 11. The primary contention of the learned counsel for the appellant is that the whole case is fabricated and false. The learned counsel for the appellant argued that the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence to prove the same. The learned counsel for the appellant further contended that the statements of the prosecution witnesses namely Muhammad Shahid (PW- 2) and Muhammad Akram (PW-3) were not worthy of any reliance. The learned counsel for the appellant also argued that the recoveries were full of procedural defects, of no legal worth and value and result of fake proceedings. The learned counsel for the appellant finally submitted that the prosecution had totally failed to prove the case against the appellant beyond the shadow of doubt. 12. On the other hand, the learned Deputy Prosecutor General contended that the prosecution has proved its case beyond the shadow of doubt by producing independent witnesses. He further argued that the deceased died as a result of injuries suffered at the hands of the appellant. He further contended that the medical evidence also corroborated the statements of Muhammad Shahid (PW-2) and Muhammad Akram (PW-3). He further argued that the recovery of the pistols (P-10 and P-11) from the appellant namely Muhammad Siddique son of Muhammad Rafique also corroborated the ocular account. He further contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offender with the innocent in this case. Lastly , the learned Deputy Prosecutor General prayed for the rejection of appeal as lodged by the appellant namely Muhammad Siddique son of Muhammad Rafique. 13. We have heard the learned counsel for the appellant, the learned Deputy Prosecutor General and with their assistance perused the record and evidence recorded during the trial carefully . 14. The whole prosecution case revolves around the statements of the prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW-3), the eyewitnesses of the occurrence. The relationship of the prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW-3), with the deceased is on record. Muhammad Ashraf (deceased) was the real father of Muhammad Shahid (PW-2), and brother in-law
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(Behnoi) of the prosecution witness namely Muhammad Akram (PW-3). It is also an admitted aspect of the prosecution case that the prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW- 3), were not the residents of the place of occurrence or any place near the same. According to the prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW-3), the place of occurrence was at a distance of about 18/19 kilometres from the places of their residences. The prosecution witness namely Muhammad Shahid (PW -2), during cross-examination explained as under:- "Basti Hussain Abad is 18/19 kilometers away from the place of occurrence . My as well as house of Akram PW is situated at Basti Hussain Abad where as house of Allah Rakha PW is situated near to court premises. It is correct that neither I nor any of my PW ownes (sic) any property , busin ess or have any residence in surroundings of the place of Occurrence." (emphasis supplied). Similarly , Muhammad Akram (PW -3), during cross-examination explained as under:- "I have no house, business or any landed property near to the place of occurrence . My house is 17/18 kilometer away from the place of occurrence." (sic) The above-referred portions of the cross-examination of the prosecution witnesses reflects that the prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW-3), can be validly termed as "chance witnesses" and therefore were under a bounden duty to provide a convincing reason for their presence at the place of occurrence, at the time of occurrence and were also under a duty to prove their presence by producing some physical proof of the same. We have noted with grave concern that the prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW-3) failed miserably to provide any consistent evidence as to the reason for their arrival at the place of occurrence and their presence at the place of occurrence when the same was taking place. We have also noted that instead of providing any reason for their presence at the place of occurrence, at the time of occurrence, both the prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW-3) candidly admitted that they had no reason for proceeding towards the place of occurrence or being present at the place of occurrence and also admitted that it was not even their routine to have travelled to the place of occurrence. The prosecution witness namely Muhammad Shahid (PW-2) admitted during cross-examination as under:- "It was not our daily routine to pass through the place of occurrence." Similarly , the prosecution witness namely Muhammad Akram (PW -3) during cross-examination stated as under:- "I per chance were passing through from place of occurrence. Even Allah Rakha and Shahid PWs were also not regular visitor of the alleged place of occurrence and they were also by chance passing through the place of occurrence. Ashraf deceased was also having no business at or around the place of occurrence." (emphasis supplied) We have also noted with disquiet that though, it was claimed by the prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW-3) that they had gone to the place of occurrence on a motorcycle, however , during the course of the investigation, as well as before the learned trial court, the said motorcycle, allegedly used by the prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW-3) to arrive at the place of occurrence, was not produced. According to the prosecution evidence, Abid Hussain SI (PW- 9), the Investigating Officer of the case, visited the place of occurrence after the occurrence and remained there for a considerable time. During the course of his stay at the place of occurrence, Abid Hussain, SI (PW-9), the Investigating Officer of the case, did not take into possession the motorcycle allegedly used by the prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW-3) to arrive at the place of occurrence along with the other recoveries, though there was no occasion for the said motorcycle not to have been present at the place of occurrence or not being taken into possession by the Investigating Officer during his visit to the place of the occurrence, if the same was available. The prosecution witness namely Muhammad Shahid (PW-2) in his statement before the learned trial court stated as under:- "I was alongwith Allah Rakha and Muhammad Akram on another motorcycle and were going to Basti Punnu Wala, Mouza Lalay W ala "
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The said motorcycle, which was used by the prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW-3), was not produced during the entire period of investigation nor was produced before the learned trial court even though the case was instituted upon a private complaint and in that manner , the complainant of the case had all the opportunity to produce the said motorcycle before the learned trial court as proof. The non-production of the motorcycle, used by the prosecution witnesses namely Muhammad Shahid (PW- 2) and Muhammad Akram (PW-3), to arrive at the place of occurrence and the failure of the prosecution witnesses namely Muhammad Shahid (PW-2) and Muhammad Akram (PW-3) as well as the Investigating Officer of the case to produce the same before the learned trial court leads to only one conclusio n and that being that no such motorcycle was available. Abid Hussain, SI (PW-9), the Investigating Officer of the case, during cross-examination admitted as under:- "Except the motorcycle of the deceased no other motorcycle was found at the place of alleged occurrence." Had the motorcycle been…
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