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Petitioner: Muhammad Nazim etc VS Respondent: State etc
Court Name: Lahore High Court Judge(s): Muhammad Amjad Rafiq Title: Muhammad Nazim etc vs State etc Case No.: Crl. A. No. 105079-J, Crl. Rev. No. 105522 & No. 105523 of 2017 Date of Judgment:2022-02-01 Reported As: PLJ 2022 Cr.C. 1459 Result: Appeal allowed
JUDGMENT
JUDGMENT Prosecution fixed the allegation on the appellant Muhammad Nazim for murder of Rashid Mehmood. Though about the death of the deceased an FIR has already been registered Bearing No. 101 dated 25.04.2014 under Sections 302 & 34, PPC at Police Station City Farooq Abad, District Sheikhupura but he was tried in private complaint titled "Muhammad Ilyas vs. Muhammad Nazim etc." and was finally convicted and sentenced by the learned trial Court vide judgment dated 30.10.2017 as under: "Imprisonment for life under Section 302(b), PPC with compensation of Rs. 50,000/- under Section 544-A, Cr.P.C., in default thereof, shall further undergo six months simple imprisonment. Benefit of Section 382-B, Cr.P.C. was extended to him." 2. Complainant has preferred Criminal Revision No. 105522 of 2017 seeking enhancement of sentence of the Respondent No. 2 and P.S.L.A. No. 105523 of 2017 against acquittal of Respondents No. 2 to 4 therein which are also being decided through this common judgment. 3. On 25.04.2014 at 01:00 a.m. it was Mehndi ceremony of Rashid Mehmood (deceased) when Muhammad Nazim (appellant), Ehsan Anwar, Waqar Shahid and Imran while armed with their respective weapons emerged there on two motorcycles. On raising Lalkara by co-accused Ahsan, Imran and Waqar; appellant Muhammad Nazim fired with his pistol hitting at right eye of Rashid Mehmood. They attended Rashid Mehmood whereas accused succeeded to decamp therefrom. However, Rashid Mehmood though was escorted to DHQ Hospital but he succumbed to the injuries. Motive carried by prosecution was that appellant Muhammad Nazim was in love with the lady to whom Rashid Mehmood was going to marry and due to this grudge he committed such unfortunate occurrence.
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4. Initially regarding the occurrence FIR supra was registered but the complainant being dissatisfied to the investigation filed instant private complaint on 23.05.2015 after about thirteen months: After cursory statements of witnesses four accused persons were summoned to face the trial. Prosecution produced as many as four PWs and Court summoned eight CWs in the case. Main reliance of prosecution was on the statements of complainant Muhammad Ilyas (PW-3), Muhammad Sajjad (PW-4) for ocular account. Imran Shahid, Record Keeper of DHQ Hospital appeared as (CW-5) for secondary evidence on behalf of Dr. Muhammad Afzal (late) who conducted autopsy on the dead body of deceased and Muhammad Akram S.I./I.O. appeared as (CW-6). After close of prosecution evidence accused persons were examined under Section 342, Cr.P.C. wherein they have controverted all the allegations levelled against them and pleaded their innocence, however, in response to a question that why this case against you and why PWs deposed against you? the relevant response of the appellant was as under: The PWs are closely related inter se and to that of deceased. PWs has (sic) falsely deposed against me on asking of complainant. As a matter of fact, I had established a cloth shop in Sheikhupura and my parents are alive. We are nine brothers and sisters. Two days prior of marriage of Rashid, Numan and Rizwan visited me for the purpose of hiring the eunuchs due to the reason of marriage of Rashid as I had previously called eunuchs on the marriage of my cousins. Yaseen etc., used to hire the eunuchs from Imran and many of is acquinters(sic) visited him at the time of maghrib and we four including me, Numan, Imran and Rizwan' visited eunuchs who told us that less money is paid to them at Farooqabad whereas more disturbance is created. Imran had given a guarantee to them and satisfied them by making phone call to visit on his responsibility, thereafter we returned. Rashid, his brother Shahzad and Bhabi had also come Sheikhupura for making purchases. We after finishing our job accompanied them alongwith Rizwan and Numan. On the night of Medhi (sic) at about 09:30 P.M after closing my shop I went to my home and after changing clothes and getting fresh went to Shadi Hall where at 09:45 night I called Imran to come at marriage hall as such he also came there. I also called Numan through phone call and inquired about his place of residence who replied that he will also come to shadi hall and at that time people were taking their meal, we. also started taking meal. In the meanwhile Sajjad and his elder brother came to us. Sajjad and his brothers (brothers of Rashid) came to us and inquired that if we need anything more for eating, we informed him that we have taken our meal and in the meanwhile their second brother who also came there and inquired about meal. After taking the meal when we were free and after freeing from shadi hall we went in adjoining house of Rashid who opened Bathik for our sitting and at that time his cousins were also present there. We were taking wine while sitting there which was brought by Rizwan and Ashfaq in the Bathik. We drank the wine, Numan asked us to enquire about the eunuchs on phone who have not arrived and Imran phoned the eunuchs by using mobile phone who came there after 15 minutes. The eunuchs also came in Bathik and drink wine and the stage was prepared in nearby tents and after reaching eunuchs started their program which continued for about one and half hours. The servants of complainant's shop brought local brand of wine and during the dancing I and Numan again took liquor- and became extreme state of intoxicating. Waqar was sitting after interval of one chair with me. I took pistol from him and asked that I may fire with it. I. while standing my hand fired but bullet struck in the chamber and when I was unbolting the bullets from the chamber the second bullet suddenly went into the chamber and fire went off. All the people were dancing at that time brother of Rashid came there and informed that his brother has received bullet fire-shot. We run from there. I had no intention to harm anyone it was unfortunate accident Rashid and we all were friends and I was celebrating along-with him and others his Mehndi ceremony as evident by recorded movie clips saved in memory card P-8. Complainant got lodged false FIR after concocting false story and concealing true facts against me."
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After the close of trial, three accused stood acquitted whereas present appellant was singled out and was convicted as forecited. 5. Learned counsel for the appellant states that prosecution has failed to prove the presence of PWs at the crime scene which was a nuptial rites function wherein accused/appellant has participated as a friend; hitting of fire to deceased is a mystery remained unsolved. Twisting of story by prosecution inched a further with consulted private prosecution, full of flaws and replete with contradiction which was duly exposed through video clips. There is no question to see the defence version, until the prosecution successfully arrows the accused. 6. On the other hand, learned Deputy Prosecutor General has supported the judgment with a view that there was no difference in story of State case and one put forth through private prosecution. Learned counsel for, the complainant laid augmented and tight the circle round the role of accused/appellant as made a close ranged intentional fire carrying burning, which ruled out hypotheses of accidental fire; presence of PWs was acclaimed intact and natural in the sense that it was the function of complainant party; memory card without expert report carries no value. 7. Respective contentions of proponents were heard; record perused. 8. Prosecution commenced with two stances, the stance of conspiracy hatched by Muhammad Nazim (appellant), Waqar Shahid, Ehsan Anwar and Imran failed during the trial, such story has a direct connection with the motive part of the occurrence. The witnesses who confronted the accused person in the morning, of 24.04.2014 were Abdul Jabbar and Muhammad Bilal who happened to be the paternal and maternal nephews of the complainant. Muhammad Bilal was not produced during the trial; however, Abdul Jabbar entered appearance as PW-1 and stated about the story of conspiracy that all four accused persons told him that Rashid deceased is going to marry with the love of Muhammad Nazim accused/appellant, therefore, he has to face the music. He admitted during cross examination that he already knew the fact that Mehndi ceremony of Rashid deceased is to be taken place on the same evening. He admitted that Muhammad Nazim did not reveal to him the name of girl with whom he was in love, however, witness volunteered the name of girl but admitted that he did not reveal the same to the Investigating Officer. He also admitted that upon hearing the conspiracy and threat made by Muhammad Nazim he did not make any call on 15 or reported the matter to the police and it is also admitted fact that he did not inform the complainant at that very moment, the activity to be done by Muhammad Nazim. Muhammad Ilyas, complainant (PW-3) appeared into the dock admitted that house of accused Imran is situated at a distance of one Furlong from his house. He during examination-in-chief stated that on 26.04.2014 when they were going to City Police Station, they found Waqar Shahid, Imran, Ehsan Anwar and he identified them as such along with Muhammad Nazim which fact shows that the complainant already knew the unknown accused yet he opted not to nominate them. He during cross examination admitted that he did not narrate the description of features of unknown accused persons; such facts which are in the very basis of prosecution case were disbelieved by the trial Court casting a serious doubt on the story of prosecution which later developed on the basis of this conspiracy. 9. Presence of PWs at the crime scene was mainly hit while contradicting them with some video clips saved in a memory card. Admissibility of memory card as evidence in the case is a question of prime consideration and novelty it maintains in the light of adverse claims requires a thorough examination of relevant provisions of law of evidence prevalent at the time and it has to be done before reappraising the entire evidence. The memory card P-8 was carrying clips of celebration on festive occasion of deceased's nuptial rites, touching some relevant facts .of the case, it was produced by the accused persons during investigation which was available in the case bundle; copy whereof was provided to the accused u/S. 265-C of Cr.P.C. by the Court concerned in the State case pursuant to an order of this Court passed in Criminal Revision No. 469/15 titled "Nazim
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Ali vs. Additional District & Sessions Judge Etc" which the complainant has not attached with his private complaint; therefore, investigating officer was directed to produce such memory card before the Court so that copy of the same could be delivered to the complainant. This fact is incorporated in Court's order dated 15.10.2015 and by virtue of order dated 19.10.2015, copy of it was delivered to the complainant. Such memory card was later used in the. evidence for the purpose of contradiction of facts stated by the eye witnesses. Investigating officer has not sent it for forensic analysis nor report is available in the case; a fact has also been brought on the record during cross examination that one Malik Umair of Azad Movie maker was making the movie of the function. Now Question to be addressed in this case is as to whether such memory card can be used to rebut the facts stated by the PW during his evidence. Rebuttal can be in both ways, either to produce evidence by production of witnesses or the documents by the party at response or through contradicting the witnesses from the record of the case, either in the form of statements u/S. 161 & 164, Cr.P.C. or any previously recorded deposition which was collected during investigation, affidavits, written statements, any agreement/contract or a document in the form of deed, last but not the least any electronic document. Such a document can only be used for the purpose of contradiction if they were duly produced in an investigative process and not otherwise. Reliance is on "Abdul Khaliq versus the State" (PLD 2011 Supreme Court 554) & "Yasir Imran alias Yasir Arafat vs. Muhammad Ashraf and another" (2014 MLD 337) and there would be no objection about exhibition of such documents in the trial except statement u/S. 161, Cr.P.C. Memory card given to .the accused u/S. 265-C, Cr.P.C. can validly be demanded by the accused in a case instituted on private complaint emanating from same FIR. Reliance is on cases reported as "Muzaffar Khan v. the State and others" (1977 P Cr. L.J 937); "Aziz-ur-Rehaman v. The State" (PLD 1987 Lahore 245) and "Muhammad Ashiq and 2 others v. Muhammad Anwar and 2 others" (2005 YLR 933). 10. Second thought for prosecution to produce every evidence that could support or contradict the .fact in issue is a rule dated back creeped in to the criminal justice system in the interest of justice in order to arrive at right conclusion was later transformed into a mechanism of selecting relevant supportable evidence so as to fix the criminal liability straight without any ambiguity, yet the material evidence which though was collected from both the parties during investigation if not selected by the prosecution for production before the Court, it becomes an unused material. Law has developed that accused would have right to obtain record of such unused material so as to use it for the purpose of contradiction. The Honourable supreme Court has held in case reported as "Muhammad Idrees and another vs. The State and others" (2021 SCMR 612) that only case dairies are privileged under Section 172, Cr.P.C., copy of which cannot be given to the accused but the material collected and statements received or -recorded can validly be claimed. Once such material/document or statement is delivered to the accused u/S. 265-C, Cr.P.C. or u/S. 162, Cr.P.C. or in response to an application made by the accused. Such document/material or statement can be used for the purpose of contradiction and if the accused returns successful to contradict a material fact, burden to dislodge clouds cast over such fact lies on the prosecution, which would only be discharged by producing material evidence and not mere raising objection about authenticity of document used for contradiction. In this case when memory card was played in the Court and facts were brought to contradict the statement of PW-3, it was incumbent upon the prosecution to produce witnesses who could say that memory card carrying facts do not relate to the facts of the case or it should have been highlighted any clip therein to contradict the acclaimed facts. Even another move maker or snaps of nuptial rites could be produced to present an inconsistent hypothesis but no such effort has been applied by the complainant in this case. Question that memory card carries edited clips of facts was to be met by the prosecution through production of an expert with opinion or original movie clips. What requires from an accused is to
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create doubt on prosecution case which can be done by introducing any alternate hypothesis, authentic or supposed which could persuade the Court to disbelieve the case. 11. Accused have requested to the Court in this case for production of memory card by the complainant with his private complaint yet despite notice he had not produced the same, therefore, accused were well within their right to produce secondary evidence which practice is recognized and allowed under Article 159 & 160 of Qanun-e-Shahadat Order, 1984 which run as under: 159. Giving, as evidence, of document called for and produced on notice: When a party calls for a document which he has given the other party notice to produce and such document is produced and inspected by the party calling for its production, he is bound to give it as evidence if the party producing it requires him to do so. This Article bound the calling party to produce the document in evidence only if the other party requires him to do so which means that if producing party does not require him to produce the document in evidence, he still has option to produce or not to produce. What would happen if the party refused to produce the document against whom subpoena was issued, is reflected as under: 160. Using, as evidence, of document production of which was refused on notice: When a party refuses to produce a document which he has had notice to produce; he cannot afterwards use the document as evidence without the consent of the other party or the order of the Court. Illustrations; A sues C on an agreement and gives B, notice to produce it. At the trial A calls for the document and B refuses to produce it. A gives secondary evidence of its contents, B seeks to produce the document itself to contradict the secondary evidence given by A, or in order to show that the agreement is not stamped. He cannot do so. It is clear that in the event of failure to produce document, calling party can give secondary evidence as per illustration attached to above Article and party refusing to produce cannot use such document afterward as evidence for the purpose of contradicting the secondary evidence so produced except with the consent of other party or the order of the Court. Complainant in this case has neither attempted to seek consent of accused party to use all facts of memory card for the purpose of contradiction of facts selected by the accused party in their favour nor obtained any order from the Court. 12. This Article has an application on both the proceedings, civil or criminal; in this respect, a reference to observation is reproduced which has been highlighted in para 19.6 of a book "Murphy on Evidence by Peter Murphy, 6th edition at page 520 which is as under: "The notice to produce does not compel the production of the original, but if the original is not produced, its contents may be proved by secondary evidence. This means that, unlike a subpoena duces tecum, a notice to produce may be served even on the accused in a criminal case, because in the absence of compulsion, there is no violation of the accused's privilege against self -incrimination. If the notice is not complied with, not only may the document be proved by secondary evidence, but -the party failing to comply will not be allowed to rely upon the original, if it should be inconsistent with the secondary evidence." In the same book about the status of tapes, photographs, films etc. was also taken to light in para 19.22 at page 531 with following observations: "Although in modern law visual and audio recordings may be regarded as documents, at least for some purposes they have a further, important potential to supply matter of evidential value, because of the possibility of direct perception. A tape or film may yield detail and nuances over and above the mere text of matters recorded therein. Some detail of the circumstances of the recording, some visible characteristics, some inflexion of the voice may put a different complexion on the recorded matter, as compared with a mere transcript of the words spoken or the things done. The sound or accent of a voice, the physical appearance of a thing or person may resolve
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some ambiguity or clothe with meaning some unexplained passage in the text. The recordings are, therefore, to that extent real evidence and often have an effect similar to a view or the production of a material object. To the extent that recordings are admissible as real evidence, it is no objection to admissibility that the evidence is meant to, and does in fact, convey information because it is offered for direct observation by the Court, and not as a species of hearsay." Thus, it is held that this piece of evidence in the form of memory card clips were validly brought on record being part of investigation record, copy whereof has been supplied u/S. 265-C of Cr.P.C. and could be used for the purpose of contradiction as well as treating it a real evidence as highlighted above. Real evidence is used as an explanatory to substantive evidence; like case property in a case, admissibility whereof is permissible under Article 71 of Qanun-e-Shahadat Order, 1984. 13. Coming back to reappraisal of evidence, it has been noticed that there was a serious issue about the presence of witnesses at the place of occurrence; the star witness for the prosecution is Muhammad Ilyas (PW-3) being complainant, he was father of the deceased though narrated the occurrence in examination-in-chief to make it confirmable to the facts stated in the FIR as well as in his supplementary statement. The complainant stated that, he filed an application for registration of FIR yet this fact needs to be evaluated in the light of evidence put forth through his statement. He deposed during cross-examination that he had written an application for lodging of an FIR at hospital where there was a person from whom he got the application written. He further deposed that his three sons were alive one of his son is police official, all such sons duly participated in the Mehndi ceremony and after unfortunate occurrence they all brought the deceased to the hospital. He admitted that he had not asked any of his sons to write an application for lodging of an FIR. He further admitted that Malik Abid, Advocate is his son-in-law: He carried on to say that one of his sons is middle pass while the other two are matriculate. He had not asked his sons to bring pencil and paper for writing the application and himself approached the nurses for paper and pencil. Further deposed that application was written at about 01:00 a.m. to 01:15 a.m. and finally deposed as follows:- "I could not tell with certainty up till today with certainty that from whom an application for lodging of an FIR was written" Such facts rather indicate his absence at the place where he was trying to justify; deposing of facts in such a manner is understandable when in later part of his cross-examination he categorically stated that he did not sign any document at hospital. He further deposed that he did not take his son to Farooqabad Hospital which was though near to District Headquarters Hospital, Sheikhupura. Though he deposed that Malik Abid, Advocate his son-in-law was not invited in the Mehndi ceremony but in other breath, he deposed during cross-examination that Malik Abid, Advocate after having a dinner went to the home, however, he did not accompany us for the hospital. This is against the natural human conduct of a person whose brother-in-law has been murdered and he did not approach to the hospital which shows that there was something fishy in the matter which restrained such witness to come forward to depose. He also deposed about what was being done at the time of Mehndi occasion which is as follows: It is incorrect that at the time of Mehndi occasion, Ali, Salman and Ashfaq brought liquor to celebrate the occasion. Further deposed that he remained present with the deceased during the whole ceremony of Mehndi and denied that accused Muhammad Nazim was present in such ceremony. He also denied that Muhammad Nazim was throwing money on eunuch, however, admitted that Muhammad Nazim remained at the place of occurrence for only about a minute but failed to recollect the colour of clothes worn by Muhammad Nazim accused. About position of his son in Mehndi occasion, he deposed as under: "Deceased was sitting on the sofa and he was wearing a colourful clothslstaler."
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He denied that Muhammad Nazim has thrown money over the groom twice. He denied that one Ali was hugging accused Muhammad Nazim. Volunteered that Muhammad Nazim was not present at the Mehndi ceremony and also denied that Muhammad Nazim and his brother Nadeem were invited at Mehndi function. When this cross-examination was on, learned defence counsel requested the Court to play the video clip which was saved in a memory card because such memory card was provided to the accused under section 265-C, Cr.P.C. Memory card containing three clips were labelled by the trial Court as A, B & C which reflect following facts to shatter the prosecution case as a whole. At first Clip-C was played in the Court; at the 0:03-second of the clip, it was observed that eunuch was seen dancing and accused Muhammad Nazim was throwing money on them which fact was not denied by the PW-3, however, volunteered that this is not his function. At 0:05-second, one person was shown to the PW who stated that person who is taking a cigarette is Muhammad Nazim accused/appellant. At 0:21-second it was shown that a person wearing staller is deceased Rashid, whom the…
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