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Petitioner: The State Jaffer Hussain Faiz Muhammad etc Muhammad Shafique Muhammad Iqbal Muhammad Riaz Muhammad Shafique VS Respondent: Muhammad Iqbal alias Bali The State etc The State etc Manzar Abbas alias Mazhari etc The State etc The State etc Jaffer Hussain etc
Court Name: Lahore High Court Judge(s): Aalia Neelum, Syed Shahbaz Ali Rizvi Title:The State Jaffer Hussain Faiz Muhammad etc Muhammad Shafique
Muhammad Iqbal Muhammad Riaz Muhammad Shafique vs Muhammad Iqbal alias Bali The State etc The State etc Manzar Abbas alias Mazhari etc The State etc The State etc Jaffer Hussain etc Case No.:Murder Reference No.510 of 2010 Crl. Appeal No. 1986 of 2010 Crl. Appeal No. 2211 of 2010 Crl. Appeal No. 2183 of 2010 Crl. Appeal No. 2175 of 2010 Crl. Appeal No. 412 of 2011 Crl. Revision No. 1137 of 2010 Date of Judgment:2015-05-04 Reported As: 2015 LHC 3317 Result: N/A Judgment AALIA NEELUM, J:- Muhammad Iqbal alias Bali son of Haq Nawaz, Caste Kathia, resident of Haveli Moranga Tehsil Kabirwala, District, Khanewal (appellant in Crl. Appeal No.2175-2010), Jaffer Hussain son of Abid Hussain, Caste Syed, resident of Mohallah Sadaat Shorkot, City & District, Jhang (appellant in Crl. Appeal No.1986-2010), Faiz Muhammad and Jamshaid sons of Muhammad Ilyas, Caste Tagga Rajput, resident of Kakki Nau, Tehsil Shorkot District, Jhang (appellants in Crl. Appeal No.2211-2010), Muhammad Riaz son of Muhammad Nawaz, Caste Kawan, resident of Kakki Nau, Tehsil Shorkot, District, Jhang (appellant in Crl. Appeal No.412-2011) and Manzar Abbas alias Mazhari (since acquitted) were involved in case F.I.R. No.246-2008, dated 24.11.2008, offence under Sections 302, 324, 396, 412 P.P.C., registered at Police Station, Shorkot Cantt, District, Jhang and were tried by Mr. Nussar Ali Naseem Awan, learned Additional Sessions Judge, Shorkot. The learned trial court seized with the matter in terms of judgment dated 12.07.2010 while convicting the accused- Muhammad Iqbal alias Bali under Section 302 (b) P.P.C. and sentenced him to death with the direction to pay Rs.3,00,000/-as compensation to the legal heirs of the deceased, failing which, further undergo six months S.I. The accused-Muhammad Iqbal alias Bali was further convicted under Section 396 P.P.C. and sentenced to death along with imposition of compensation amount to the tune of Rs.2,00,000/-and in default thereof, shall undergo three months S.I. The compensation
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amount shall be recovered from the property of the accused. The accused-Jaffar Hussain, Fiaz, Jamshaid and Muhammad Riaz were convicted under Section 302 (b) P.P.C. and each sentenced to life imprisonment and they were also liable to pay Rs.3,00,000/ each as compensation to the legal heirs of the deceased and in case of default, they shall have to further undergo six months S.I. The accused-Jaffar Hussain, Fiaz, Jamshaid and Muhammad Riaz were also convicted under Section 396 P.P.C. and each sentenced to life imprisonment having burden of Rs.2,00,000/- each as compensation to the legal heirs of deceased, failing which, each will have to go three months S.I. The accused persons-Fiaz, Muhammad Riaz and Jaffar Hussain were also convicted under Section 412 P.P.C. and each of them was sentenced to ten years R.I. with fine of Rs.50,000/-each and in default of payment of fine, each will further undergo two months S.I. The accused-Muhammad Iqbal alias Bali, Fiaz, Jaffer Hussain, Muhammad Riaz and Jamshaid were convicted under Section 149 P.P.C. and each of them was sentenced to undergo S.I. of one year. All the sentences shall run concurrently. The benefit of Section 382-B of Cr.P.C. was extended in favour of accusedJaffar Hussain, who at that time, was in judicial lockup. 2. Being aggrieved by the judgment of the learned trial court, Muhammad Iqbal alias Bali- appellant impugned the same through filing Crl. Appeal No.2175 of 2010, Jaffer Hussain-appellant by way of Crl. Appeal No.1986-2010, Faiz Muhammad and Jamshaid-appellants preferred Crl. Appeal No.2211-2010 and Muhammad Riaz-appellant through Crl. Appeal No.412 2011, whereas the learned trial court has forwarded Murder Reference No.510 of 2010 for confirmation of death sentence. The complainant being dis-satisfied with the judgment dated 12.07.2010, filed a Criminal Appeal No.2183-2010 against acquittal of respondent/accused Manzar Abbas alias Mazhari as well as prayed for enhancement of sentence of respondents/accused, Jaffar Hussain, Faiz Muhammad, Jamshaid and Muhammad Riaz, through Crl. Revision No.1137 of 2010. As all the matters are arising out of one and the same judgment of the learned trial court, therefore, they are being disposed of through a single judgment. 3. Prosecution story as alleged in the F.I.R (Exh.P.N/1) lodged on the statement (Exh.P.N) of Muhammad Shafique (PW-6)/complainant is that complainant (PW-6) and his brother Muhammad Naveed Akhter (since died) have a shop and used to purchase crops and on 24.11.2008, complainant (PW-6) brought an amount worth Rs.9,00,000/- from Shorkot Cantt for making payment to the customers and put the same to the safe. On the same day, at about 7:00 p.m. complainant along with his brothers namely Muhammad Rafique and Muhammad Naveed Akhter (since died) along with one cousin-Abdul Rauf (PW-1) were present in their shop when suddenly three unknown accused persons, armed with deadly weapons, while riding on a motorcycle, without any number, entered into their shop and started to search the safe (Galla) of shop whereupon brother of the complainant (PW-6) namely Muhammad Naveed Akhter (since died) had tried to resist them but one of the accused namely Muhammad Iqbal alias Bali made a fire which hit on the forehead of Muhammad Naveed Akhter (since died), who fell down whereas the other accused person also made fire on the foot of Abdul Rauf. On their hue and cry, inhabitants of the locality came there and apprehended the accused-Muhammad Iqbal alias Bali along with rifle and bag of bullets whereas the two accused fled away by taking away looted amount of Rs.9,00,000/-. They shifted Muhammad Naveed Akhter to the Tehsil Headquarter Hospital, Shorkot and on seeing the condition of injured, the doctor referred him to Allied Hospital, Faisalabad but the injured expired in the way to hospital. The occurrence was witnessed by the complainant-Muhammad Shafique (PW-6), Muhammad Rafique (PW-5), Abdul Hameed (PW-4) and injured-PW Abdul Rauf (PW-3).
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4. On receipt of information regarding the occurrence, Tariq Mehmood, S.I. (PW-12) proceeded to Tehsil Headquarter Hospital, Shorkot and reduced into writing the statement (Ex.PN) of the complainant (PW-6) and the complainant (PW-6) signed as a token of its correctness and after completion of police karawi, Tariq Mehmood, S.I. (PW-12) sent the same to the police station through Muhammad Abdullah 1450/C (PW-1) whereupon formal F.I.R. (Ex.PN/1) was chalked out by Ahmad Nawaz 1074/HC (PW-9). Thereafter, the Investigating Officer (PW-12) prepared the injury statement Exh.PD/2 of deceased-Muhammad Naveed Akhter, injury statement of injured-PW, Abdul Rauf (PW-1) as Exh.PP/2 and inquest report of deceased-Muhammad Naveed Akhter Exh.Q/3. Thereafter, the Investigating Officer (PW-12) deputed Mulazim Hussain (PW-2) for the postmortem examination of the deceased-Muhammad Naveed Akhter and proceeded towards the place of occurrence where PWsMuhammad Shafi and Abdul Hameed produced the accused-Muhammad Iqbal alias Bali before the Investigating Officer along with rifle 44-bore (P-8) and a bag of bullets, 105 in number and same were taken into possession by the Investigating Officer vide recovery memo Exh.PF. The bloodstained cotton was also taken into sealed parcel vide Exh.PG. The Investigating Officer had also taken into possession one empty (P-10) from the place of occurrence, prepared recovery memo Exh.PH. The motorcycle (P-11) used in the alleged occurrence was taken into possession vide recovery memo Exh.PJ. Thereafter, Jan Muhammad-Draftsman (PW-13) prepared the scaled site plan of place of occurrence Exh.PS. On 25.11.2008, Mulazim Hussain 1535/C (PW-2) produced the last worn clothes of deceased before the Investigating Officer (PW-12) i.e. Qameez (P-1), Shalwar (P-2), Bunyan (P-3) which were taken into possession vide recovery memo Exh.PA. On 14.12.2008, on the pointation of accusedJaffer Hussain, pistol 30-bore was recovered through recovery memo Exh.PD and prepared rough site plan of place of recovery Exh.PD/1. On 18.12.2008, the accused-Jaffer Hussain led to the recovery of Rs.1,00,000/- qua which recovery memo Exh.PK and rough site plan thereof Exh.PK/1 were prepared. On 12.12.2008, accused- Faiz Muhammad, Jamshaid and Muhammad Riaz were arrested and on the pointing of accused- Muhammad Riaz on 14.12.2008, rifle 44-bore along with 15 bullets were taken into possession vide recovery memo Exh.PC and site plan of place of recovery Exh.PC/1 there of were prepared. On 19.12.2008, accused-Muhammad Riaz, the Investigating Officer recovered Rs.50,000/- and prepared recovery memo Exh.PM and site plan of place of recovery as Exh.PM/1. On 23.12.2008, the accused- Faiz Muhammad got recovered Rs.50,000/- qua which recovery memo and site plan of recovery place were prepared as Exh.PL and Exh.PL/1, on 24.12.2008, the accused-Faiz Muhammad also led to the recovery pistol 30-bore which was taken into possession vide recovery memo Exh.PE and site plan of place of recovery Exh.PE/1. 5. Having found the accused persons guilty, the Investigating Officer prepared report under Section 173, Cr.P.C. and sent the same to the court of competent jurisdiction. On 27.07.2009 & 06.04.2010, the learned trial court formally charge sheeted the appellants to which, they pleaded not guilty and claimed trial. The prosecution in support of its version produced as many as fifteen (13) prosecution witnesses. 6. Ocular account of first part of occurrence in this case has come out from the statements of Muhammad Shafique (PW-6)/complainant, the injured PW-Abdul Rauf (PW-1) and Muhammad Rafique alias Atique (PW-3) whereas, Dr. Mazhar Abbas Bhangoo (PW-8) had observed the body of the deceased-Muhammad Naveed Akhter in an injured condition and also conducted postmortem examination of the dead body of the deceased on 25.11.2008 and found the following injuries on his person:- 1-A A fire arm entrance wound on right side of forehead 3 cm from right eyebrow measuring 1 cm x
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1 cm into through and through. No blackening around the wound. 1-B A fire arm exit wound 2.5 cm x 1.5 cm into brain matter coming out on left side of head 4 cm above left ear pinna. Left eyelid swollen. After conducting the postmortem examination, the doctor rendered the following opinion:- Opinion. "The death in this case was caused due to hemorrhage shock and injury to vital organs i.e. brain. This injury No.1 was ante-mortem caused by fire arm weapon and sufficient to cause death in ordinary course of nature. The probable time elapsed between injury and death was within two to four hours and between death and postmortem was within three to five hours. Exh.PQ is carbon copy of report of postmortem examination whereas Exh.PQ/1 and Exh.PQ/2 are the sketches of injuries, inquest report Exh.PQ/3 and injury statement Exh.PQ/2." After conducting the postmortem examination, the doctor has opined that:- "Injuries No.1 & 2 were described Jurrah Ghair Jaifah Damiah 337-F(i). Injury No.1 was caused by fire arm while injury No.2 by blunt weapon. These injuries were caused within six hours. Sketch of injuries Exh.PP/1 and injury statement is Exh.PP/2." Similarly on the same day at 12:30 a.m. (night), Dr. Mazhar Abbas Bhangoo had medically examined the injured-Abdul Rauf and found following injuries on his person:- 1. A fire arm grazing wound 3.5 cm x 4 cm skin deep on upper side of big toe. 2. An abrasion 7 cm x 2 cm on front of right thigh. The statements of remaining prosecution witnesses are formal in nature. 7. On 27.04.2010, learned Assistant District Public Prosecutor gave up Muhammad Akhter, Muhammad Shafi, Abdul Hameed son of Muhammad Siddique being un-necessary whereas Muhammad Hanif 1141/C was given up on 19.05.2010 being un-necessary and closed the prosecution evidence on 11.06.2010 after tendering report of Chemical Examiner, Punjab, Lahore as Exh.PT, report of Serologist Exh.PU and report of Forensic Science Laboratory, Punjab, Lahore Exh.PV. 8. The appellants were also examined in terms of Section 342 Cr.P.C., wherein they opted not to appear as their own witnesses in disproof of the allegations levelled against them in the prosecution version. In response to a particular question why this case against him and why the PWs deposed against him, Muhammad Iqbal alias Bali-appellant, made the following deposition:- "My sister is married in Mauza Mahala Basti Gujranwali. Soon after the occurrence, I was returning back after seeing my sister on bicycle to my home. The place of occurrence is situated in the way connecting Mauza Mahla and Mauza Iarrala. When I was crossing near the place of occurrence, the PWs apprehended me empty handed on the basis of suspicion. I have not committed this
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occurrence at all. All the PWs are related inter-se who have deposed falsely against me." Likewise, Jaffer Hussain-appellant replied the particular question while deposing as under: "Prior to the occurrence, I had been working at the workshop situated at Tehsil Chowk Shorkot City. Muhammad Shafique complainant came at that workshop for report of his tube-well and their dispute arose between me and Muhammad Shafique complainant in connection with wages of repairing and resultantly a quarrel took place between me and the complainant. On that grudge complainant has falsely involved me in this criminal case in supplementary statement. Whereas I was not nominated in initial statement of complainant regarding registration of case Exh.PN. All the PWs related inter-se who deposed against me under ulterior motive." Similarly, Muhammad Riaz-appellant answered the specific question as under: " All the PWs related inter-se and deposed against me under ulterior motive. Moreover, during the general election 2008, I supported Mian Qamar Hayat Kathia and complainant party supported Ch. Khalid Ghani and due to this political rivalry the complainant party falsely involved me in this case with consultation of Ch. Khalid Ghani." The appellants-Faiz Muhammad and Jamshaid while replying to particular question made following deposition:- "All the PWs related inter-se who deposed against me under ulterior motive. Moreover, Muhammad Shafique complainant of this case used to pass in front of our house while playing tape recorder of his tractor in loud voice. We forbade the complainant from playing tape recorder while crossing our house, upon which, altercation took place and the complainant has grudge against us. Furthermore, in the general election 2008 we supported Mian Qamar Hayat Kathia and the complainant party supported Ch. Khalid Gani and due to this political rivalry also complainant falsely involved me and my brother in this occurrence." The appellant-Manzar Abbas alias Mazhari replied the specific question as under: "Initially I was not nominated in the statement of Muhammad Shafique PW for registration of this case Exh.PN. Later on some one Manzar alias Mazhari resident of Ranjeet Kot was nominated by the complainant during investigation before the I.O. I am not resident of Ranjeet Kot and am resident of Katcha Kabeera. I was found innocent during investigation. Tariq Mehmood, PW-12 who is I.O of this case has stated before the honourable court that instead of me some Qalab alias Qallo alias Mazhari is accused and required in this case. Moreover all the PWs related inter-se who have deposed against me due to some misunderstanding." 9. The learned trial court after evaluating the evidence available on record in light of arguments advanced from both sides, found the prosecution version proved beyond shadow of reasonable doubt resulting into conviction of the above stated appellants in the afore said terms. 10. Arguments advanced from both sides have been heard. We have also gone through the record available on file with the able assistance of learned counsel for the appellants and learned counsel for the complainant as well as Deputy Prosecutor General.
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11. The occurrence in the present case allegedly had taken place on 24.11.2008 at 7:00 p.m. and the case had been registered on the statement (Exh.PN) of Muhammad Shafique (PW-6), brother of Muhammad Naveed Akhter, deceased. According to Muhammad Shafique (PW-6), his statement (Exh.PN) was recorded at the THQ Hospital by the police and same was read over to him and he signed the same in token of its correctness. The statement (Exh.PN) of Muhammad Shafique (PW- 6) was recorded at 10:30 p.m. The formal F.I.R (Exh.PN/1) was chalked out by Ahmed Nawaz, H.C. (PW-9) at 11:30 p.m. Muhammad Shafique (PW-6) had stated that he along his brother Muhammad naveed Akhtar have made a shop and they also used to purchase crops. On 24-11- 2008 he brought Rs.9,00,000/- in evening from Shorkot Cantt for making payment to the customers. Whereas the complainant (PW-6) along with his brothers Muhammad Rafique (PW-5) and Muhammad Naveed Akhtar (deceased) and his cousin Abdul Rauf (PW-3) were present in the shop. When three (3) persons armed with fire arm weapons came there on motorcycle Yamaha without number and entered into the shop and asked them to raise hands and they demanded whatever they have be hand over to them and one accused started to search the safe (Galla). Whereupon Muhammad Naveed Akhtar resisted upon which one accused, later his name known as Muhammad Iqbal alias Bali, made straight fire which hit on forehead of Muhammad Naveed Akhtar who fell down. Other accused also made fire which hit on the right foot of Abdul Rauf (PW- 3). Although upon hearing the alarm raised by them other inhabitants of the locality reached the place of occurrence and caught-hold of accused Iqbal alias Bali along with bag of bullets. Whereas two (2) accused fled away on motorcycle along with looted money worth Rs.9,00,000/-. Muhammad Naveed Akhtar was brought to THQ Hospital, Shorkot, immediately and due to serious condition of the injured doctor referred him to the Allied hospital, Faisalabad. On the way to the Allied hospital, Faisalabad near Haveli Bahadar Shab he (Muhammad Naveed Akhtar) breathed his last. Thereafter the complainant (PW-6) brought back dead body of the deceased to THQ Hospital, Shorkot. Where on receiving information about the occurrence Tariq Mehmood, S.I. (PW-12) reached the hospital and met with complainant who got recorded his statement (Exh.PN). Had the complainant-Muhammad Shafique (PW-6) identified the accused, who were known to him, he would have in the normal course disclosed the names. Instead of that he could identify the assailant if he saw them. This fact should be viewed in the context of defence version that the FIR was recorded with consultation and deliberation as well as same was not recorded at the time and date it was purportedly recorded. The complainant-Muhammad Shafique (PW-6) also made a very categorical statement in the complaint (Exh.PN) that later he came to know about the name of the accused as Iqbal alias Bali, whereas during cross-examination the complainant- Muhammad Shafique (PW-6) deposed that, "All of the accused were known to me prior to the occurrence." The complainant, PW-6 had not given the description of the other accused to the police whereas he stated that he can identify them, if produced before him. Whereas Abdul Rauf (PW-3) deposed during cross-examination that, "Shafique complainant is my nephew. I know all of the accused prior to this occurrence since a long time. PW volunteered that I had been ploughing the fields of the accused." The deposition of this witness gives an altogether different picture which creates serious doubt on the testimony of the both prosecution witnesses. The complainant- Muhammad Shafique (PW-6) deposed that, "On the same day after some time in the Hospital I again got recorded my supplementary statement." The supplementary statement of the complainant (PW-6) is Exh.DF. It is strange that all accused were previously known to the persecution witnesses and they (accused persons) did not cover their faces and let others (prosecution witnesses) to identify them. On the other hand, going through the testimony of Abdul Raufinjured witness (PW-3) it reveals that during examination-in-chief he deposed, "After that Muhammad Shafique complainant took Muhammad Naveeed Akhtar to Hospital. I went to Hospital with Muhammad Shafi PW." Contrary to his statement, he deposed during cross-examination that,
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"I was brought to DSP Shorkot from the place of occurrence. Police prepared my injury statement at THQ Hospital, Shorkot. Muhammad Sahfi narrated the occurrence to DSP and DSP wrote case.I stayed there about one hour and then proceeded to THQ Hospital." He (PW-3) further deposed that, "When we caught hold of Iqbal alias Bali accused police came there after 30 minutes. We made call to the police but I do not remember that who made the call and then police arrested Iqbal accused and took him to police Station. Iqbal accused was handed over to police in my presence and in the presence of Muhammad Razzaq, Muhammad Sharif, Ch. Sarwar etc. Iqbal was handed over to police by Ch. Sarwer at the time of handing over of Iqbal." Whereas while contradicting to the deposition of Abdul Rauf-injured witness (PW-3), Abdul Hameed (PW-4) stated during examination-in-chief that, "At about 12:30 night police came at the place of occurrence. We handed over rifle and bag of bullets which were 105 in number to the police which were taken into possession by the I.O vide recovery memo Exh.PF." During cross examination he (PW-3) deposed that, "I grappled accused Iqbal alias Bali from his back side in veranda of shop. Soon after that many people also caught hold of Iqbal accused. Muhammad Shafi and Akhtar PW also caught hold of Muhammad Iqbal.---------- Some one had made phone call to police about the occurrence, so police reached there. When police first time reached at the place of occurrence Rauf, Shafique, Shaffi PWs and Naveed deceased were not present there." Another important aspect of the case which cannot go un-noticed is that the complainant-Muhammad Shafique (PW-6) during cross-examination deposed that, "After 10/15 minutes of our arrival Abdul Rauf also reached in the Hospital. -----------------------. When we left THQ Hospital, Shorkot due to referring of Naveed Akhtar injured, uptill then police had not come in THQ Hospital, Shorkot. When I returned to THQ Hospital Shorkot with dead body of Naveed Akhtar police had already reached there. I had informed the police about the occurrence. After death of Naveed Akhtar I informed the police about the occurrence near Haveli Bahhadar Shah." From the testimonies of the prosecution witnesses adverse inference will be drawn that yet, the prosecution failed to adduce proof that the complaint (Exh.PN) was lodged without consultation and deliberation. Tariq Mehmood, S.I. PW-12. (Investigating Officer) while replying to specific questions deposed that, "It is correct that after the completion of Exh-PN and before handing over the dead body to constable so many people arrived in Hospital. It is correct that in between above said period those persons met the complainant. It is correct that above said people made conversation with the complainant.------- ------------ Muhammad Shafique complainant informed me on telephone about the occurrence when I was present at Machar Chowk." It is significant to note that the Crime No./FIR No. is not to be found in the inquest report (Exh.PQ/3) and injury statement (Exh.PD/2). We noted that injury statement (Exh.PD/2) which is a requisition sent to the hospital for medical treatment of Muhammad Naveed Akhtar-injured, prepared by Tariq Mehmood S.I. (PW-12), through Mulazim Hussain, Constable (PW-2). Even though the inquest report is aimed at serving a statutory function, to lend credence to the prosecution case, the details of the FIR and the gist of statements recorded during inquest proceedings get reflected in the report. All this would support the defence version that FIR (Exh.PN/1) was recorded with due deliberation and consultation and the names of accused probably came into existence much later, and that creates doubt about the case. 12. The next part of the evidence of Muhammad Shafique (PW-6), Abdul Rauf-injured witness (PW- 3) and Abdul Hameed (PW-4) shows that Muhammad Shafique (PW-6) shifted Muhammad Naveed Akhtar in injured condition to the THQ Hospital, Shorkot. Whereas MLC No.833/2008 (Exh- PO) prepared by Dr. Mazhar Abbas Bhanqoo (PW-8), belied prosecution case on this aspect that Muhammad Naveed Akhtar was shifted to the Hospital in injured condition by Muhammad Shafique (PW-6). According to MLC No.833/2008 (Exh-PO) Mulazim Hussain Constable/1535 (PW-2) on 24.11.2008 at 8:10 p.m shifted the deceased to the hospital in injured…
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