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Official Citation: 2024 YLR 410
Court / Jurisdiction: Lahore High Court
Year of Decision: 2022
Decision Date: 2022-12-31
Parties: The State , Manzoor Ahmad, Sultan Ahmad vs Manzoor Ahmad, The State, JUDGMENT
Ruling Summary: This decision was rendered by the Lahore High Court on 2022-12-31, officially reported as 2024 YLR 410. In this matter between The State , Manzoor Ahmad, Sultan Ahmad and Manzoor Ahmad, The State, JUDGMENT, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2024 YLR 410
Court Name: Lahore High Court Judge(s): Aalia Neelum, Farooq Haider Title:The State , Manzoor Ahmad, Sultan Ahmad vs Manzoor Ahmad, The State,
JUDGMENT
Reported As: 2023 LHC 1238, PLJ 2024 Cr.C. 146, 2024 YLR 410 Result: Appeal Dismissed Judgment
JUDGMENT AALIA NEELUM, J:- The appellant-Manzoor Ahmad, son of Chanan Khan, caste Korra, resident of Village Korra, Tehsil & District Khushab, was involved in case F.I.R. No.396 of 2017, dated 19.11.2017, registered under Sections 302, 34 P.P.C., at P.S. Khushab, District Khushab and was tried by the learned Additional Sessions Judge, District Khushab. The trial court seized with the matter in terms of the judgment dated 02.05.2019, convicted Manzoor Ahmad (the appellant) under Section 302(b) PPC as Tazir and sentenced to Death for committing Qatl-e-Amd of Muhammad Jabbar (the deceased), with the direction to pay compensation of Rs.15,00,000/- to the legal heirs of the deceased as envisaged under section 544-A of Cr.P.C and in case of default thereof, to undergo 06-months S.I further. 2. Feeling aggrieved by the judgment of the trial court, Manzoor Ahmad, the appellant, has assailed his conviction and sentence by filing the instant jail appeal bearing Criminal Appeal No.44496-J of 2019. The trial court also referred M.R. No.129 of 2019 (The State. Vs. Manzoor Ahmad) to confirm the death sentence awarded to the appellant-Manzoor Ahmad. Whereas, the complainant also filed Crl. Appeal No.37914 of 2019 against the acquittal of respondent No.2, namely Khan Muhammad. All the matters arising from the same judgment of the trial court are being disposed of through a single judgment. 3. The prosecution story, as alleged in the F.I.R (Ex.PA) lodged on the statement (Ex.PF) of Sultan Ahmad (PW-7)-the complainant, is that on 18.11.2017, at about 10:40 p.m., the complainant (PW-7)
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along with Muhammad Khan (PW-8) and Muhammad Younas (given up PW) was present at his dera to look after his ailing buffalo, whereas his son Muhammad Jabbar (the deceased) was present in front of a room of cattle shed. Meanwhile, Manzoor Ahmad (the appellant), armed with a gun 12- bore repeater and Khan Muhammad (co-accused since acquitted) came empty-handed. Khan Muhammad (co-accused since acquitted) raised lalkara that they had come to take revenge for their insult; after that, Manzoor Ahmad (the appellant) made straight fire with his gun 12-bore repeater, which hit Muhammad Jabbar on the right side of his chest; Manzoor Ahmad (the appellant) made second fire towards the complainant's side; Manzoor Ahmad (the appellant) while coming forward, again made a straight fire, which hit on the right side of the face of Muhammad Jabbar (the deceased). Meanwhile, Khan Muhammad (co-accused since acquitted) kept raising lalkaras that if anyone came near, he would be done to death; due to fear, they could not interfere. After that, Manzoor Ahmad (the appellant) and Khan Muhammad (co-accused since acquitted) fled away towards their dera while making fires and raising lalkaras. The complainant (PW-7) and PWs attended Muhammad Jabbar, who succumbed to the injuries. The motive behind the occurrence was that about 1 years before the occurrence, the daughter of Manzoor Ahmad (the appellant), namely Aneetan Manzoor eloped with one Muhammad Imran and the accused had a suspicion that the complainant party had facilitated and helped the elopement of said Aneetan Manzoor with Muhammad Imran; due to that grudge, the accused had murdered Muhammad Jabbar (the deceased). 4. After the incident, the complainant reported the matter to the police through his statement (Ex. PF), and after that, formal F.I.R (Ex. PA) was chalked out by Muhammad Zaman S.I (PW-1). After the registration of the case, the investigation of this case was entrusted to Zafar Iqbal S.I. (PW9) and subsequently investigation was conducted by Muhammad Fayyaz-S.I (PW-11), who found the accused/appellant guilty, prepared a report under Section 173, Cr.P.C., and sent the same to the court of competent jurisdiction. On 10.03.2018, the trial court formally charge-sheeted the appellant, to which he pleaded not guilty and claimed trial. In support of its version, the prosecution produced as many as twelve (12) witnesses. 5. Ocular account, in this case, has come out from the statements of Sultan Ahmad (PW-7)-the complainant, and Muhammad Khan (PW-8) the eye witness, whereas Dr. Faisal Ramzan (PW-5), who conducted the postmortem examination of Muhammad Jabbar (the deceased) found the following injuries on his person:
INJURIES
1) A lacerated penetrating wound of 5 x 4 cm, 2 cm below right eye on right cheek. Margins of the wound were irregular and inverted with blackening present around the margins, underlying maxilla bone was visibly fractured and shattered. This was wound of entry of firearm. 2) A lacerated penetrating wound of 1.5 x 1 cm on left cheek, 3 cm anterior to left pinna. On probing, it was proved to be exit wound of injury No.1. Margins were everted. 3) A lacerated wound of 1 x 0.5 cm on middle lower chin, 4 cm below lower lip. Margins were inverted with collar of abrasion present. This wound of entry of firearm. Mandible was fractured. 4) A lacerated penetrating wound of 1 x 0.5 cm on inferior aspect of lower chin, 2 cm below to injury No.3. Margins were inverted with collar of abrasion present. This was found of entry of firearm. 5) A grazed firearm injury lacerated wound of 2 x 1 cm on right cheek, 4 cm lateral to injury No.1, 3 cm below right eye, underlying maxilla bone was exposed and broken. 6) A lacerated penetrating wound of 1 cm x 0.5 cm on upper anterior fold of right axilla, 6 cm below lateral end of right clavicle, 9 cm superolateral to right nipple. Margins of the wound were inverted
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with collar of abrasion present. This was wound of entry of firearm, corresponding hole present on clothes. 7) A lacerated penetrating wound of 1 x 0.5 cm on anteromedial aspect of right arm, 10 cm above elbow joint. Margins of the wound were inverted with collar of abrasion. This was wound of entry of firearm. Corresponding hole was present on clothes. 8) A lacerated penetrating wound of 1 x 0.5 cm on posterior aspect of right arm, 10 cm above elbow joint. Margins of the wound were everted. On probing, it was proved to be the exit wound of injury No.7. Corresponding hole present on clothes. After conducting the postmortem examination, the doctor opined that the cause of death was due to injuries 1 and 2, which were sufficient to cause death in the ordinary course of nature, as they injured skull bone and brain, causing intracranial hemorrhage, shock, and death. All the injuries were ante-mortal and were caused by a firearm. The probable time between injuries and death was immediate, whereas between death and postmortem was about 04 to 05 hours. 6. The learned Deputy District Public Prosecutor gave up PWs Abdul Ghaffar and Muhammad Younis as being unnecessary and Fayyaz Ullah 552/HC being dead and after tendering reports of Punjab Forensic Science Agency (Ex. PQ, Ex. PR) and school leaving certificate of Muhammad Jabbar (the deceased) as Ex.PS, character certificate as Ex.PT and Registration certificate (Form-B) of NADRA department as Ex.PU closed the prosecution evidence. 7. The appellant was also examined in terms of Section 342 Cr.P.C., wherein he did not opt to appear as his own witness in terms of section 340(2) Cr.P.C.; however, produced Altaf Hussain 2729/H.C. in his defence as DW-1. In response to a particular question about why this case was against him and why the PWs deposed against him, the appellant made the following deposition:- "The PWs are members of one family. They deposed falsely. In fact, in the night of occurrence, the son of Muhammad Mukhtar (PW-6), namely Ghaffar, saw Muhammad Jabbar (deceased) in compromising position with her sister, Saniya Mukhtar. He murdered him but to save the skin of Ghaffar and for the sake of family honour, as well as due to local friction and grudge, I have been falsely involved in this case." 8. After evaluating the evidence available on record in light of arguments advanced by both sides, the trial court found the prosecution version proved beyond any shadow of reasonable doubt, which resulted in the appellant's conviction and sentence in the above terms. 9. We have given our anxious and most thoughtful consideration to both sides' rival submissions. We have minutely gone through the evidence on record. 10. The occurrence took place on 18.11.2017 at 10.40 p.m. in the Dera/Cattle Shed of Sultan Ahmad, Korra, District Khushab, situated within the jurisdiction of Police Station Khushab, District Khushab, which is at a distance of 10 Kilometers only from the place of occurrence. Whereas F.I.R. (Exh. PA) was got registered on the oral statement (Exh. PF) of Sultan Ahmad (PW-7)-the complainant, on 19.11.2017 at 12.50 a.m. It is clear from the Fard Bayan (Exh. PF) that the statement of Sultan Ahmad (PW-7)-the complainant, was recorded by Zafar Iqbal, S.I. (PW-9) at Sandal Adda at 12:30 a.m. Sultan Ahmad (PW-7)-the complainant took one hour and fifty minutes to report the incident to the police, for which no plausible explanation was rendered. However, the inquest report (Exh.PE) reveals that the time of receiving information regarding the death was 10:40 p.m. on 18.11.2017 by Zafar Iqbal, S.I. (PW-9). Whereas Zafar Iqbal, S.I. (PW-9) deposed during his examination-in-chief that upon receiving information of the occurrence, he (PW-9), along with Jaleel-ur-Rehman 238-C (PW-10), Saif Ullah 125/C, and Mukhtar Hussain 62/C were going towards the place of occurrence, when he met with Sultan Ahmad (PW-7)-the complainant at Sandal Adda at 12:30 a.m. After that, he (PW-9) proceeded to the place of occurrence along with the complainant (PW-7) and prepared a rough site plan of the place of occurrence, application for post-mortem, and inquest report (Exh.PE). It has been noticed that in the inquest report (Exh.PE), the names of Sultan Ahmad (PW-7)-
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the complainant, Muhammad Khan (PW8), and Muhammad Younas (given up PW) have not been mentioned. Any eyewitnesses or the complainant does not sign the inquest report (Exh.PE). However, the investigating officer-Zafar Iqbal, S.I. (PW-9), has categorically asserted that he recorded statements of witnesses under section 161 of Cr.P.C at the spot, which shows that witnesses were present at the place of occurrence. If he (PW-9) visited and prepared the inquest report (Exh. PE) and had met with Sultan Ahmad (PW-7)-the complainant, Muhammad Khan (PW- 8), and Muhammad Younas (given up PW). In that case, there is no reason why the details we found missing from the inquest report (Exh.PE) should not have been there. The absence of those details indicates that the prosecution story was still in the embryo and had not been given any shape. The FIR was recorded after due deliberations and consultations, and FIR was then ante- timed. The second external check that is equally important is sending a copy of the FIR along with the dead body for post-mortem examination and its reference in the inquest report (Exh. PE). In the column of the brief history of the inquest report (Exh. PE), the investigating officer-Zafar Iqbal, S.I. (PW-9), specifically mentioned that he got registered a FIR, and its particulars were mentioned. Even then, it was not mentioned that FIR was also sent along with other documents with the dead body for post-mortem examination. The absence of these details in the inquest report may indicate that the FIR was not registered and the FIR was recorded after due deliberations and consultation. In the inquest report (Exh. PE), it was mentioned as follows:- Dr. Faisal Ramzan (PW-5), who conducted autopsy at 3:15 a.m. on 19.11.2017, deposed during his examination-in-chief that:- "Ex.PC is the correct carbon copy of postmortem report, Ex.PC/1 and Ex.PC/2 are pictorial diagrams of injuries, prepared, signed and stamped by me. I also endorsed the injury statement Ex.PD and inquest report Ex.PE." The FIR has lost its value and authenticity because of the above-said infirmities. It appears that the same has been ante-timed and had not been recorded till the inquest proceedings were over at the place of occurrence by the investigating officer-Zafar Iqbal, S.I. (PW-9). Jaleel-ur-Rehman 238- C (PW-10) deposed during cross-examination that:- "On receiving the information about the occurrence, I alongwith Zafar Iqbal SI and other police officials directly went at the place of occurrence. We did not stay in the way. When we reached at place of occurrence, SHO PS Khushab, DSP Saddar Circle Khushab and Members of Forensic Team were already at the place of occurrence....... .IO handed over the dead body to me at 2:30 a.m. I reached at 3:00 a.m. at hospital alongwith dead body." Zafar Iqbal, S.I. (PW-9)-the investigating officer deposed during cross-examination that: - "I received information of this occurrence near about 10:30 p.m on the fateful night. It is not in my knowledge as to whether the son of the complainant namely Ansar made a telephonically call at Rescue 15 at about 10:45 p.m. or not. I reached at the place of occurrence at 12:45 a.m (night). I handed over the dead body of deceased to Jaleel ur Rehman 238/C for postmortem examination at about 2.00 a.m." Zafar Iqbal, S.I. (PW-9)-the investigating officer to conceal a material fact from the Court, stated that it was not in his knowledge that the son of the complainant Ansar informed the police about the occurrence at Rescue 15 at 10:45 p.m. In column No. 3 of the inquest report (Exh. PE), Zafar Iqbal, S.I. (PW-9)-the investigating officer mentioned the time of receiving information regarding the death at 10:40 p.m. on 18.11.2017. Muhammad Khan (PW-8) admitted that Ansar, the son of the complainant, reached the place of occurrence, and no other son came to the place of occurrence. Muhammad Khan (PW-8), in this regard, deposed during cross-examination that: - "Ansar son of complainant reached at the place of occurrence after the occurrence but I do not remember the exact time of his arrival. Except Ansar no other son of the complainant came at the place of occurrence. Sultan Ahmad complainant is my brother in law (Behnoee)."
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Contrary to the deposition of Muhammad Khan (PW-8), Sultan Ahmad (PW-7)-the complainant deposed during a court statement that his son Muhammad Shahbaz was in front of the room of cattle shed. Sultan Ahmad (PW-7)-the complainant admitted during cross-examination that:- "My son Ansar knew about the occurrence soon after the occurrence as he was present at the home which is at a distance of about half kilometer away from my dera. The police was informed about the occurrence at Rescue 15 but I do not know who made such call to the police. I do not know as to whether Ansar made call at Rescue 15 at 10.45 p.m or not. I also do not know as to whether Ansar made such call at Rescue 15 that some persons illegally occupied his land and also made firing at the dera. Volunteers soon after the occurrence, I went to the police to furnish the information about the occurrence. On the way, police met me at Bus stand Sandral and police informed me that police received call at Rescue 15 about the occurrence. I was on the way at that time,therefore, I do not know who made the call to the police at Rescue 15." The defence produced defence-witness Altaf Hussain 2729/HC (DW-1). Altaf Hussain 2729/HC (DW- 1) deposed during his examination-in-chief that: - "Under the order of the Court I have brought today the relevant record of rescue 15 dated 18.11.2017 regarding the call of Ansar s/o Sultan Ahmad r/o Korra Tehsil & District Khushab. I have also brought record of call made from cell No.0302-6544945 which is Ex.DD/1-2 duly attested by concerned authority." A witness summoned by the trial court to produce a document shall bring it to the Court if it is in his possession or power. Altaf Hussain 2729/HC (DW-1) is in charge of rescue 15, who produced records of daily dairy (roznamcha) of the call made on 15 (Ex.DD/1-2) revealing that caller Ansar made the call on 15 at 10:45 p.m. and informed that their opponents were making firing at their Dera and they occupied their Dera and asked for police help. At 12:55 a.m. (night), on return, Muhammad Arshad S.I. of police station Khushab reported that the accused persons killed Jabbar, son of Sultan Ahmad, and fled away after that. The deposition of Jalil-ur-Rehman 238/C (PW-10) revealed that when they reached the place of occurrence, police officers of police station Khushab were present. The learned counsel for the complainant also admitted that Ansar, the complainant's son, made the call on the 15. However, the complainant was not aware of it. There were so many omissions and contradictions in the evidence of prosecution witnesses affecting the entire fabric of the prosecution case. 11. In the instant appeal, in the scaled site plans (Exh. PB and Exh. PB/1) place of firing was shown at points "2 and 3," and the deceased, i.e., Muhammad Jabbar, was shown at point "1". The distance between Point "1" and Points "2 and 3" was 12 and 6 feet, respectively; from such a distance, blackening is impossible. Whereas, in the unscaled site plan (Exh. PI), the distance between Point "1" and Point "3" was not mentioned. The investigating officer-Zafar Iqbal, S.I. (PW-9), prepared an unscaled site plan (Exh. PI) and left blank space after writing as under:- Whereas, Dr. Faisal Ramzan (PW-5), who conducted autopsy on the dead body of Muhammad Jabbar, observed blackening on injury No.1. Dr. Faisal Ramzan (PW-5) deposed during cross- examination that: - "I extracted four pellets and one wad from the track/rout of injury No.1 and two pellets from the floor of mouth coming from injuries No.3 & 4, whereas the seventh pellet was extracted from injury No.6. Injury No.6 is an independent injury.......... . I extracted single pellet from injury No.3, single pellet from injury No.4 and single pellet from injury No.6...... Injury No.1 is on cheek, whereas injuries No.3 & 4 are on chin." The blackening and recovery of pellets from the wound and the seat of injuries show that Muhammad Jabbar sustained the fire shot injuries on the vital part of his body from a close range. There is an apparent conflict between the medical evidence and with ocular testimony delivered
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by the eyewitness. The fact, however, is that the deceased, i.e., Muhammad Jabbar received firearm injuries from close range, and who was responsible for the said wounds was not known; however, the appellant was not responsible for said wounds. Although the site plan is not a substantive piece of evidence in terms of Article 22 of the Qanun-e-Shahadat Order, 1984, as held in the case of "Mst. Shamim Akhtar v. Fiaz Akhtar and two others" (PLD 1992 SC 211) but it reflects the view of the crime scene. The same can be used to contradict or disbelieve eyewitnesses. Thus, there was an apparent conflict between the medical evidence and ocular testimony incapable of being reconciled by any amount of argument and persuasion. In these circumstances, the presence of eyewitnesses at the place of occurrence has become highly doubtful. 12. Another aspect of the case is that the occurrence occurred in the Dera/Cattle shed of Sultan Ahmad (PW-7)-the complainant. The presence of the witnesses, i.e., Sultan Ahmad (PW-7)- complainant, and Muhammad Khan (PW-8), was by chance. Sultan Ahmad (PW-7)-complainant stated the reason for his presence at his Dera was due to an ailment of buffalo, he was present at his Dera. Sultan Ahmad (PW-7)-complainant has specifically deposed in his court statement that: "On 18.11.2017 at about 10:40 p.m, I alongwith Muhammad Khan and Muhammad Younis were present at my dera to look after my ailing buffalo whereas my son Muhammad Shehbaz was present in front of room of cattle shed." Whereas, during cross-examination, he (PW-7) deposed that: - "At the time of occurrence I was present in garage (chappar). The said garage (chappar) was open from three sides. Although ailing buffalo had to save from cold weather, however, the said buffalo due to ailment, sit in the said garage/chapper at Asar time and then remained unable to stand on legs. Due to this reason, we were present in the said garage/chapper at the time of occurrence. We used the said garage/chapper for multiple purposes i.e. to park the tractor, tethered the animals and also for sitting purposes." Muhammad Khan (PW-8), eye witness and brother-in-law of the complainant, deposed during cross-examination that:- "My residence is not at the dera of complainant i.e place of occurrence. I am not veterinary doctor." Zafer Iqbal S.I. (PW-9)-investigating officer deposed during cross-examination that: - "I did not mention in my spot inspection note about the presence of sick buffalo in the garage. I drafted the unscaled plan on the pointation of the witnesses. I also did not mention the presence of sick buffalo in the garage in my unscale site plan Ex.PI." Muhammad Zahoor, Patwari (PW-3) deposed during cross-examination that:- "I did not point out the presence of any sick buffalo in the garage where PWs were present. It is correct that I did not point out the presence of any cattle in two cattle shed at the place of occurrence. When I visited venue of crime, the garage was vacant." When for the presence, if witnesses took the specific plea, there must be an explanation for their presence there. The deposition of a chance witness whose presence at the place of the incident remains doubtful should be discarded. Conduct of the chance witness after the incident may also be considered, particularly the condition of the dead body of the deceased. Dr. Faisal Ramzan (PW- 5) deposed during examination-in-chief that: - "-------mouth and eye were opened---" The same is reflected in column No. 8 of the inquest report (Exh. PE). Both these witnesses deposed in their court statements that they attended Muhammad Jabbar, who succumbed to the injuries on the spot. If they attended to the deceased soon after the occurrence, there was no reason for the mouth and eyes to be open. Although Muhammad Khan (PW-8), the eye witness, deposed during cross-examination, he tried to close the eyes and mouth of the deceased but could not succeed. At this juncture, it is relevant to mention the chemical
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changes that would occur when the dead body of a human being is exposed to different environmental situations. Autolysis (self-destruction) is an intrinsic activity brought about by the breakdown of cells and tissues of the human body because of the constituents of the said cells. The cell membranes break down after death and release enzymes that start self-digestion. The first external sign of autolysis is the whitish appearance of the cornea. One of the first visible signs of death is when the eyes cloud over, a result of fluids and oxygen no longer flowing to the corneas. That can begin within 10 minutes of death. If the deceased person's eyes remain open at the time of death, any relative or person nearby can close the eyes soon after, as after 10 minutes, the decomposition process begins. It is relevant to mention here that Zafar Iqbal S.I. (PW-9) investigating officer, after reaching the place of occurrence, inspected the dead body, prepared an injury statement (Ex. PD), inquest report (Ex. PE) and photographs of the dead body of the deceased were also taken, and photo-card (P-7) containing four pictures of deceased were secured and genuineness of which is not denied by prosecution or complainant. The deceased was in the knee-chest position, the body was lying on his side, and the torso was lying diagonally. This also suggested that Sultan Ahmad (PW7)-the complainant, and Muhammad Khan (PW-8) were not present at the time of occurrence. It suggests that if Sultan Ahmad (PW-7)-the complainant, and Muhammad Khan (PW-8), an eye witness, were present at the place of occurrence and tried to close the eyes and mouth of the deceased and also straighten the dead body of the deceased, then there was no reason the same should be closed and a dead body lying in the straight position. Thus, Sultan Ahmad (PW-7)-the complainant, and Muhammad Khan (PW8) failed to prove their presence on the spot. Such evidence can be created at any moment. With this background, the presence of the alleged eyewitnesses in the place seems to be doubtful. 13. According to Sultan Ahmad (PW-7)-the complainant, and Muhammad Khan (PW-8), two charging lights were lit at the time of occurrence. In the cross-examination, the defence has brought omissions, contradictions, and improvements in the evidence of this witness. Sultan Ahmad (PW-7)-the complainant deposed during cross-examination that:- "I also stated before the police officer about charging lights in my statement but I do…
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