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Petitioner: JAVAID VS Respondent: The STATE and others
Court Name: Lahore High Court Judge(s): Aalia Neelum Title: JAVAID vs The STATE and others Case No.: Criminal Appeal No. 2114 of 2013 Date of Judgment:2019-06-18 Reported As: 2020 MLD 136 Result: Appeal accepted
JUDGMENT
JUDGMENT AALIA NEELUM, J. The appellant-Javaid son of Alam, caste Bodla, resident of Cliak No.417/JB, Tehsil Gojra, District Toba Tek Singh has assailed his conviction and sentence recorded by the learned Addl. Sessions Judge, Gojra, District Toba Tek Singh vide judgment dated 28.11.2012 in private complaint filed under sections 302, 324, 109, 148 and 149, P.P.C. Police Station Saddar Gojra, District Toba Tek Singh titled "Tahir Mehmood v. Ikhlaq, etc." along with State case bearing FIR No.65/2008 dated 11.02.2008 under sections 302, 324 and 34, P.P.C. registered at Police Station Saddar Gojra, District Toba Tek Singh, whereby the learned trial court convicted the appellant under Section 302(b), P.P.C. and sentenced him to undergo Imprisonment for life as Tazir with the direction to pay Rs.1,00,000/- as compensation to the legal heirs of the deceased-Arshad Mehmood in terms of section 544-A, Cr.P.C and in case of default in paymen t thereof, to further undergo S.I for six months . The benefit of section 382-B, Cr .P.0 was also extended in favour of the appellant. 2. Feeling aggrieved by the judgment of the learned trial court, the appellant has assailed his conviction through filing instant jail appeal bearing Criminal Appeal No.21 1-3 of 2013. 3. Precisely the facts as alleged in the private complaint (Ex.PB) filed by Tahir Mehmood (PW-1) against Ikhlaq (co- accused since acquitted), Javaid (the appellant), Kafiat Ullah (co-accused since acquitted), Aslam (co-accused since acquitted), Mumtaz (co-accused since acquitted), Salah-ud-Din (co-accused since acquitted) and three unknown persons, are that about six months prior to the occurrence, real brother of the complainant namely Arshad Mehmood (deceased) purchased agric ultural land situated at Chak No.417/J.B. for a consideration of Rs.15,00,000/- and after paying Rs.13,00,000/- as earnest money got executed agreement to sell and took possession of the land. Aforesaid accus ed were aggrieved by said sale transaction and different cases were pending in the courts in this regard. On 11.02.2008 at about 08:15 a.m., Arshad Mehmood (the deceased) and Ashiq Ali (PW-2)-injured while riding on motorcycle Yamaha 100-CC bearing registration No.471 1-TSD were
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coming in Sessions Court Gojra to attend the case titled "Kifayat Ullah. v. D.P.O, etc.", when at about 08:30 a.m. they reached a metalled road running between Mochiwala and Gojra near square No.36 Killa No.18 situated at Chak No.422/J.B and square No.3 Killa No.17 situated in Chak No.416/J.B, Ikhlaq (co-accused since acquitted) came there on a motorcycle Honda 125-CC and one unknown person armed with automatic rifle was riding on rear seat. The unknown accused opened fire with his automatic weapon, which hit Arshad Mehmood on the right upper arm and on the right flank. At the same time, accused Javaid (the appellant) armed with automatic rifle emerged from the bushes of the "Date Trees" and fired at Arshad Mehmood, which hit him below the neck on the chest on front side. Whereas, unknown companion of Javaid made fire with his weapon, which hit Ashiq (PW-2)-injured on posterior side of his left knee and other unknown person continued making aerial firing. Arshad Mehmood (the deceased) brother of the complainant on receiving fire shot fell down and succumbed to the injuries at the spot, whereas Ashiq Ali sustained injuries. Muhammad Nawaz (given up PW) and Javaid Iqbal (PW-3), who were also coming, behind them, witnessed the occurrence. On seeing the PWs, the accused persons fled away from the scene of occurrence. The accused persons committed the occurrence due the grudge of purchase of land by Arshad Mehmood (deceased). The occurrence took place on the abetment of Kifayat Ullah, Aslam, Mumtaz and Salah ud Din (co-accused since acquitted). 4. After the occurrence, the complainan t (PW-1) reported the matter through his written complaint (Exh.P A) to Muhammad Ansar , S.I. (CW-1), at the gate of police station Saddar Gojra, who (CW-1) referred the complaint (Exh.P A) to police station Saddar , Gojra, District Toba Tek Singh, through Javaid Anwar 193/C, on the basis whereof, formal FIR (Exh.P A/1) was chalked out by Shoaib Ahmad, S.I. (PW -9). 5. Thereafter , the investigation of this case was entrusted to Muhammad Ansar S.I (CW-1), who being investigating officer of the case, visited the place of occurrence and prepared un-scaled site plan of the place of occurrence (Ex.PN). He (CW-1) also took into possession blood stained earth from the place of occurrence and secured the same into possession through recovery memo (Ex.PC). The investigating officer (CW-1) took into possession two crime empties of Rifle 222 bore from the place of occurrence and secured the same into possession through recovery memo (Ex.PD). He (CW-1) also took into possession motorcycle Yamaha 100-CC bearing registration No.471 1-TSD through recovery memo (Ex.PE). The investigating officer (CW-1) inspected the dead body , prepared the injury statement (Ex.PL), inquest report (Ex.PM) and dispatched the dead body of the deceased along with police papers under the escort of Rafi ud Din 548/C (PW-4) for postmortem examination. After postmortem examination, the police official handed over the last worn clothes of the deceased i.e. Shalwar P-3, Qameez P-4, Highneck P-5, Jacket P-6 and Chaddar P-7, along with postmortem report to the Investigating Officer (CW-1), who took into possession vide recovery memo (Ex.PF). The police official also produced one Tehmand KT of Ahiq Ali (PW-2)-injured, which the investigating officer (CW-1) took into possession throug h recovery memo (Ex.PG). On 14.03.2008, the Investigating Officer (CW-1) summoned Muhammad Saleem Halqa Patwari (PW-5), who prepared the scaled site plan of the place of occurrence (Ex.PH & Ex.PH/1) in the scale of one inch equal to 40 karams. During investigation, accused Javed (the appellant), Kafait Ullah, Aslam, Mumtaz and Salah-ud-Din were found innocent by the investigating officer (CW-1), whereas Ikhlaq (co-accused since acquitted) was sent to judicial lockup on the mercy of court. 6. Being dis-satisfied with the result of investigation, as the investigating officer (CW-1) being in league with the accused did not investigate the case on merits and declared the accused innocent, the complainant was constrained to file private complaint (Ex.PB) on 01.10.2009 and after recordin g the cursory evidence of the complainant and having perused the record, all the accused persons were found connected with the commission of offence, so they all were summoned to face the charge vide order dated 19.01.2010. 7. After the appearance of the appellant, he was formally charge sheeted by the learned trial court in terms of order dated 16.04.2010 to which he pleaded not guilty and claimed trial. The prosecution in order to substantiate its case produced as many as eleven (11) prosecution witnesses during the course of trial in private complaint. Remaining prosecution witnesses were examined as CW -1 to CW -4. 8. Ocular account in this case has come out from the statements of Tahir Mahmood (PW-1)-the complainant, Ashiq Ali (PW-2)-injured and Javed Iqbal (PW-3)-the eye witness, whereas, Dr. Waseem Khan, who conducted
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postmortem examination of Arshad Mehmood (the deceased) had died and in secondary evidence, Dr. Muhammad Aslam, D.M.S. (PW-11) identified his handwriting and signatures on the postmo rtem report (Ex.PK), sketch of injuries (Ex.PK/1), injury statement (Ex.PL) and inquest report (Ex.PM). As per postmortem report (Ex.PK), following injuries were found on the person of Arshad Mehmood deceased:- 1. Multiple abrasion in an area of 9 c.m. x 3 c.m. on right cheek in front of right tragus. 2. A grazing wound measuring 2 c.m. x 1 c.m. x skin deep, 6.5 cm below from right nipple on front of right side of chest, tailing towards left side, corresponding holes are present on clothes. 3. A grazing wound measuring 1.5 c.m. x 1 c.m. 10 c.m. below from right nipple on right side of upper abdomen tailing towards left and downwards, corresponding holes are present on clothes. 4. An abrasion measuring 0.6 c.m. x 0.2 c.m. 12 c.m. below from left nipple on left side of upper abdomen and lower chest. 5. Multiple abrasions in an area of 1 1 c.m. x 2 c.m. on outer side of left lower thigh, 9 c.m above from left knee. 6. Multiple abrasions in an area of 14 c.m. x 8 c.m. on front of left knee and front of left upper leg. 7. Multiple abrasions in an area of 2 c.m. 1.5 c.m. on back of right hand. 8. Multiple abrasions in an area of 2 c.m. x 1.5 cm on back of right wrist joint. 9. An abrasion measuring 1 c.m. x 0.5 c.m. on back of left little finger of left foot. 10. A firearm wound of entrance measuring 1 x.m. x 0.5 c.m. margins are inverted on right lumbar region 20 c.m. from midline and 4 c.m. above from back of right iliac crest, on dissection of track, a bullet shaped projectile is recovered from front of left lower abdominal wall, corresponding holes are present on clothes. 11. A firearm wound of entrance measuring 2 cm x 1.5 c.m. oval in shaped margins are inverted on outer part of right lower chest with an exit wound measuring 2.5 c.m. x 1.5 c.m. margins are everted on right side of upper abdomen. 14 c.m. below from right nipple. Corresponding holes are present on clothes. 12. A firearm wound of entrance measuring 1.5 c.m. x 1 c.m. oval in shaped on outer and upper part of right side of chest, margins are inverted, 6 c.m. below from axilla with an exit wound measuri ng 2 c.m. x 1.5 c.m. on front of right side of upper chest, 3 c.m. below from clavicle and 3.2 cm from midline. The margins are everted; corresponding holes are present on clothes. 13. A firearm entrance wound measuring 2 c.m. x 1 c.m. oval in shaped margins are inverted on outer and back of upper right arm with an exit wound measuring 3.5 c.m. x 1.5 c.m. margins are everted on inner and upper part of right arm, corresponding holes are present on clothes. 14. A firearm entrance wound measuring 2.5 c.m. x 1.5 c.m. oval in shaped, margins are inverted, 7 c.m. below from entrance wound of injury No.13 on outer and upper right arm with an exit wound measuring 2.7 c.m. x c.m. margins are everted on inner side of middle of right arm, corresponding holes are present on clothes. 15. A firearm entrance wound measuring 1.2 c.m. x 1.5 c.m. oval in shaped marg ins are inverted on back of right shoulder on dissection of track, a de-shaped metallic projectile is recovered from the upper end of humerus, which is fractured, corresponding holes are present on clothes. However , Dr. Muhammad Aslam, D.M.S (PW-7), who medically examined the injured namely Ashiq Ali (PW-2), found the following injuries on his person:- INJURIES 1) Grazing firearm wound 4.5 cm x 0.3 cm skin deep at outer side of left knee, margins of wound were abraded. It was following tail towards back of left knee. Fresh blood was oozing from it. Corresponding hole at Dhoti was present. 2) Abraded red swelling 9 X 6 cm at front of left knee joint. 3) Abraded red swelling 10 X 7 cm at front and middle of left lower leg. 4) Abraded red 2.5 x 2 cm swelling at outer side of left ankle joint. The statements of remaining prosecution witnesses are formal in nature. 9. On 22.09.201 1, the complainant (PW-1) gave up PW-Muhammad Nawaz as being un-necessary . On 10.10.201 1, learned counsel for. the complainant gave up PW-Muhammad Sarwar as being un-necessary and on 14.03.2012
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closed the evidence in complaint case, whereas on 16.11.2012, learned Assistan t District Public Prosecutor after tendering the reports of Chemical Examiner (Ex.PO) and Serologist (Ex.PP) closed the prosecution evidence. 10. The appellant was also examined under Section 342, Cr.P.C, wherein he neither opted to appear as his own witnesses in terms of Section 340(2), Cr.P.C, nor opted to produce defence evidence. While replying to a particular question that why the PWs had deposed against him, the appellant made the following deposition:- "Deceased had forcibly taken possession of disputed land. For which we had moved application to the Court of ASJ, Gojra for getting order for registration of case against deceased and co-accused, so to compel us not to pursue that application we all were nominated in the case with a false story . The PWs are inter se' related to each other ." 11. 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 any shadow of reasonable doubt resulting into conviction of the appellant in the afore stated terms. 12. I have heard the arguments advanced by the learned counsel for the parties and have minutely perused the record available on the file. 13. In the instant case the occurrence had taken place on 11.02.2008 at 8.30 a.m., inter-se distance between the place of occurrence and the police station is 08 miles. The incident was reported by Tahir Mahmood (PW-1)-the complainant, brother of Arshad Mehmood-the deceased, through his written complaint (Exh.P A) to Muhammad Ansar , S.I. (CW-1) at 10:00 a.m., at the gate of police station Saddar Gojra, who referred the complaint (Exh.P A) to police station Saddar , Gojra, District Toba Tek Singh, through Javaid Anwar 193/C, on the basis whereof, formal FIR (Exh.P A/1) was chalked out by Shoaib Ahmad, S.I. (PW-9) on 11.02.2008 at 10:10 a.m. It is notable that occurrence took place at 8.30 a.m. and distance between the police station and the place of occurrence was eight (08) miles, whereas Tahir Mahmood (PW-1)-the complainant took one hour and 30 minutes for reaching the police station for reporting the incident. From the evidence of Tahir Mahmood (PW-1)-the complainant, it reveals that the complainant (PW-1) straightaway went to police station for reporting the incident to the police from the hospital. During cross-examination, Tahir Mahmood (PW -1)-the complainant deposed that:-- "I do not know who had drafted application Ex.PA for registration of the case. The application Ex. PA was drafted on the information of Ashiq Ali PW ." Ashiq Ali (PW -2)-injured witness deposed during examination-in-chief as under:- "The occurrence was witnessed by Javed and Nawaz PWs who had arrived there behind us, as these PWs were also going to attend a Peshi in Sessions Court, Gojra.---------- I was medically examined by the doctor in the hospital and my MLC was taken by Tahir complainant of this case for registration of criminal case." Similarly , Javed Iqbal (PW -3)-eye witness deposed during examination-in-chief as under:- "I along with Nawaz witnessed the occurrence and we lift the injured to the Civil Hospital Gojra." The complainant as per prosecution went to police station for reporting the incident but before visiting police station, the complainant got drafted application for registration of criminal case from someone on the information given by Ashiq Ali (PW-2). Non-mention ing of this fact in the application/complaint (Ex.P A) indicates that the complainant (PW-1) had not stated complete truth and that the FIR came into existence later on, after due deliberations and consultations. When and where complaint (Ex.P A) was drafted and author of the complaint should have to state that the complaint was prepared by him under the instructions of the complainant. It is also not a case of the prosecution that the complainant (PW-1) asked someone to prepare a complaint and accordingly complaint was prepared by someone not known to the complainant (PW-1), which was shown to the complainant, read over to him which was signed by the complainant. The Hon'ble Supreme Court of Pakistan in the case of "Allah Bachaya and another v .. The State" (PLD 2008 SC 349 ) held that:- "In the instant case, the FIR was not recorded at the police stations. It has been held time and again that FIRs which are not recorded at the police stations suffers from the inherent doubt that those were recorded at the spot after due deliberations." Even the complainant had not given any explanation regarding delay in lodging the report and about preparation of complaint, in the complaint as well as in his statement before the learned trial court, therefore, in these
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circumstances chance of consultations and deliberations, on the part of the complainant, cannot be ruled out. It creates first dent in the prosecution case. 14. It is specifically mentioned in the complaint (Ex.P A) and FIR (Ex.P A/1) and depo sed by Tahir Mahmood (PW-1)- the complainant that Arshad Mehmood succumbed to the injuries at spot. Tahir Mahmood (PW-1)-the complainant deposed .during examination-in-chief that:- "Arshad fell down on the ground after receipt of the injuries and expired then and there Injured and the deceased were taken to the hospital by the PWs. " It is not mentioned in the complaint (Ex.P A) and FIR (Ex.P A/1) that he (PW-1) shifted Ashiq Ali (PW-2) in injured condition and dead body of Arshed Mehmood to the hospital and after obtaining medico legal certificate (Ex.PJ) of Ashiq Ali (PW-2) went to police station for reporting the incident. It is the case of the prosecution that after shifting dead body of Arshed Mehmood to the hospital, the complainant (PW-1) went to police station for reporting the incident. Whereas, Ashiq Ali (PW -2)-injured witness deposed during examination-in-chief as under:- "Arshad and I were taken to the hospital in injured condition when Arshad expired in the way to the hospital. I was medically examined by the doctor in the hospital and my MLC was taken by Tahir complainant of this case for registration of criminal case." On perusal of MLC (Ex.PJ), it reveals that copy of medico legal certificate was received by Ashiq Ali (PW-2)-injured witness himself and he (PW-2) himself appeared for medical examination on 11.02.2008 at 09:00 a.m and no one accompanied him. Whereas, Javed Iqbal (PW-3) eye-witness, brother of Arshad Mahmood-the deceased, deposed during examination-in-chief that:- "I along with Nawaz witnessed the occurrence and we lift the injured to the Civil Hospital Gojra. Arshad Mahmood succumbed to the injuries in the way to the hospital whereas Ashiq Ali PW was medically examined by the doctor ." On the other hand Tahir Mahmood (PW-1)-the complainant has denied the suggestion that Arshad Mahmood (the deceased) was brought in the injured condition to the hospital by Ashiq Ali, rather he (PW-1) stated that both prosecution witnesses who were following them brought deceased to the hospital. Tahir Mahmood (PW-1)-the complainant deposed during cross-examination that:- "It is incorrect to suggest that Ashiq Ali PW brought my brother Arshad into hospital in injured condition. Volunteered that other PWs who were following brought the deceased in the hospital." Contrary to the above deposition of Tahir Mahmood (PW-1) the complainant and Javed Iqbal (PW-3) eye-witness, Ashiq Ali (PW -2) injured witness deposed during cross-examination as under:-- "Arshad had succumbed to the injuries on the way to the hospital Arshad was taken to the hospital in injured condition from the place of occurrence in a car being driven by Gufram who was a student of a college and he also joined the investigation of the case." However , Ashiq Ali (PW -2)-injured witness denied the suggestion and deposed during cross-examination that:- "It is true that on our application investigation in this case was transferred to Range Crime Branch, Faisalabad. It is incorrect to suggest that Range Crime Branch, police also declared all the accused to this case innocent. It is incorrect to suggest that I deposed falsely in this connection. I do not know whether Boota my sala appeared before Range Crime Branch Faisalabad on 08.10.2008 in my presence. It is incorrect to suggest that am not admitting the joining of investigation of said Boota before Range Crime police because he had deposed there before I.O. that he was also riding on the same motorcycle along with me and Arshad deceased. It is incorrect to suggest that I had deposed during investigation before I.O. that we had omitted mentioning Boota being riding with us on the same motorcycle because he was an old man. It is incorrect to suggest that Boota, during course of investigation in my presence had taken the stance that he was present along with us on the same motorcycle at the time of commission of the offence." Whereas, Rizwan-ul-Haq, Inspector (CW -4)-investigating of ficer deposed during cross-examination that:- "It is correct that I recorded the state ment of Ashique Ali injured PW on 25.03.2009. It is correct that Ashique PW did not mention the name of other PWs present at the spot in his statement. It is correct that instead of PWs mentioned in the FIRhe made mention the name of Ghufran son of Akram resident of
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422/JB as witness of the alleged occurrence. It is correct that he got recorded his statement that he deceased Arshad Mehmood and Ghufran son of Akram went to Civil Hospital Gojra in Car of Ghufran. It is correct that injured PW did not mention the presence of Tahir Mehmood PW at the place of occurrence before me and also with him when they came to Civil Hospital Gojra rather he answered to my question that Tahir Mehmood came to Civil Hospital Gojra. It is correct that in answer to my question the injured PW admitted the presence of Muhammad Boota son of Nawab Din riding on Motorcycle with deceased and him. He also admitted that at the time of occurrence Arshad Mehmood deceased was driving Motorcycle while sitting on front, Boota was in middle and I was on back side. It is also correct that on 26.5.2009 Muhammad Boota son of Nawab Din joined the investigation and in his statement he told that he did not nominate Ikhlaq or other accused as culprits. It is correct that Muhammad Boota PW also did not tell about the presence of any of the PW at the place of occurrence. It is correct that Muhammad Boota PW is close relative of Ashique injured PW. The other three persons namely Salamat Ali son of Muhammad Hussain, Muhammad Afzal son of Muhammad Sharif, Waliat Ali son of Khadim Hussain never came before me with any party of this case, rather they joined the investigation independently on 19.6.2009. It is correct that Salamat Ali stated before me that on the day and time of occurrence he saw deceased Arshad, injured PW Ashique and a third unknown person riding on the Motorcycle. It is correct that he also stated that when they heard the firing they rushed to the place of occurrence and at that time Arshad deceased, injured PW Ashique and third unknown person were present there. He did not mention the name of any other person before me present at the place of occurrence. it is correct that except the PWs mentioned in the FIR no other independent person was produced by the complainant party before me to prove the contents of FIR." Riaz Hussain (Retired) Inspector/RIB (CW -3)-investigating of ficer also deposed during examination-in-chief that:- "On 08.09.2008, I was posted as Inspector RIB, Faisalabad. The investigation of the present case was entrusted to me by the orders of Addl. Inspector General of Police. On 13.10.2008 I again summoned both the parties and heard them at length. I also recorded the statement of Boota son of Nawab. On the same day , I also recorded the statement of Ghafran son of Akram." Riaz Hussain (Retired) Inspector/RIB (CW -3)-investigating of ficer admitted during cross-examination that:- "It is correct that Muhammad Boota son of Nawab Din joined the investigation on 13.10.2008. At that time all the prosecution witnesses were present. Muhammad Boota got recorded his statement that at the time of occurrence he was one of the rider of motorcycle when murder took place. No one from the prosecution contradicted his statement and the prosecution witnesses conceded the statement of Muhammad Boota son of Nawab." The admission of Ashiq Ali (PW-2)-injured witness that he was shifted in injured condition from the place of occurrence in a car being driven by Ghufr an who also joined the investigation of the case as well as contradictions in between the evidence of the prosecution witnesses renders the whole of the prosecution version doubtful. 15. It has been further noticed that Doctor Waseem Khan (since dead) conducted the postmortem examination of the dead body of Arshad Mehmood on 11.02.2008 at 06:00 p.m. which shows that the postmortem examination of the dead body was conducted with delay of eight (08) hours from time of reporting the incident to the police. If written complaint (Ex.P A) was submitted at 10:00 a.m., on 11.02.2008, whereupon the FIR was lodged at 10:10 a.m., then…
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