PLJ 2024 Cr.C. (Note) 205
[Lahore High Court, Lahore]
Present: Syed Shahbaz Ali Rizvi and Ali Zia Bajwa, JJ.
AMEER HASSAN etc.--Appellants
versus
STATE etc.--Respondents
Crl. A. Nos. 185215, 223116 & M.R. No. 160 of 2018,
decided on 10.6.2024.
Pakistan Penal Code, 1860 (XLV of 1860)--
-ماده 302(ب)--قتل عمد--سزا و سزا کا چیلنج-- پوسٹ مارٹم میں تاخیر--گواہی کی سچائی پر سوالات--محرکات-- اچانک اور شدید اشتعال-- دونوں ملزم شریکِ جرم اپیل کنندہ کے حقیقی بھائی ہیں اور تفتیش کے دوران انہوں نے گواہوں سے اپنی پچھلی واقفیت کا دعویٰ کیا، لہٰذا ملزموں کی بریت کے حالات میں، استغاثہ کے گواہوں (گواہ نمبر 5 اور 6) کی گواہی کی سچائی بھی مشکوک ہو جاتی ہے۔ ملزم کی بریت کے بعد چشمِ دید گواہوں کی گواہی کو قابل اعتماد بنانے کیلئے آزاد تائید درکار ہے، لیکن ریکارڈ میں ایسی کوئی تائید موجود نہیں ہے۔ تسلیم شدہ ہے کہ اپیل کنندہ کے حوالے سے حاصل شدہ رائفل، موقع وقوع سے حاصل شدہ خالی گولوں سے میل نہیں کھاتی جو تفتیش کے دوران موقع پر معائنہ میں ملے، اس لیے مبینہ گرفتاری استغاثہ کے کیس کے لیے غیر مؤثر ہے۔ جہاں تک واقعے کے محرک کا تعلق ہے، ہم نے نوٹ کیا کہ (ترک شدہ گواہ) وہ شخص تھا جس کا اپیل کنندہ سے مبینہ تنازعہ تھا اور اس کے سبب مقتول نے ‘پنچایت’ بلائی تھی، لیکن خود استغاثہ نے اسے غیر ضروری گواہ قرار دے کر پیش کرنے سے گریز کیا۔ مدعی تسلیم کرتا ہے کہ وہ ‘پنچایت’ کا حصہ نہیں تھا۔ استغاثہ نے ‘پنچایت’ کے دیگر کسی گواہ کو پیش نہیں کیا۔ اس حوالے سے کوئی دستاویزی ثبوت بھی فائل میں موجود نہیں ہے۔ دونوں مبینہ طور پر اپیل کنندہ کی خریدی گئی دو گاڑیوں کے کاغذات بھی استغاثہ کیس میں شامل نہیں کر سکی۔ استغاثہ نے اپیل کنندہ کے خلاف اپنا مقدمہ حقائق کی روشنی میں شبہ سے بالاتر ثابت کرنے میں مکمل طور پر ناکام رہا ہے، لہٰذا صرف مقدمے کے دوران لئے گئے اس کے دفاع کی بنیاد پر اسے سزا نہیں دی جا سکتی۔ مزید برآں، جیسا کہ معزز سپریم کورٹ نے فیصلہ دیا ہے، سیکشن 342 آف کوڈ آف کریمنل پروسیجر، 1898 کے تحت ملزم کا بیان مکمل طور پر مدنظر رکھا جائے گا۔ مذکورہ بالا بحث کی روشنی میں، فوجداری اپیل نمبر 185215/2018 جو اپیل کنندہ کی طرف سے دائر کی گئی ہے، منظور کی جاتی ہے۔
----S. 302(b)--Qatl-e-amd--Conviction and sentence--Challenge to--Delay in post-mortem--Credibility of testimony--Motive--Sudden and grave provocation--Both said co-accused are real brothers of appellant and during investigation, they claimed their previous acquaintance with witnesses hence, their acquittal, in circumstances, also renders credibility of testimony of Prosecution witnesses (PW-5 & PW-6) doubtful--The testimony of eyewitnesses after acquittal of accused requires independent corroboration to make it trustworthy but no such corroboration is available on record--Admittedly, rifle allegedly recovered at instance of appellant did not wed with crime empties taken from place of occurrence during site inspection that renders alleged recovery inconsequential to prosecution case--So far as motive part of occurrence is concerned, we have noticed that (given up PW) was person, as mentioned above, who was allegedly having dispute with appellant and because of him a ‘Punchiyat’ was convened by deceased but prosecution itself avoided to produce him by declaring him an unnecessary witness--The complainant admittedly, was not member of ‘Punchiyat’ allegedly convened--No other witness who remained part of said ‘Punchiyat was produced by prosecution--Even no documentary evidence in this regard is available on file--Even documents of two cars allegedly purchased by appellant could not be brought on record by prosecution--The prosecution has miserably failed to prove its case against appellant beyond shadow of a reasonable doubt hence, he is not to be convicted only on basis of his defence taken during trial--Moreover, as held by Hon’ble Apex Court, statement of an accused recorded under Section 342 of Code of Criminal Procedure, 1898 is to be taken and considered in entirety--In light of above discussion, Criminal Appeal No. 185215 of 2018 filed by appellant is allowed
[Para 10, 11, 12 & 13] B, C, D & E
2013 SCMR 383, 2012 SCMR 327 and 2017 SCMR 344.
Delay in Post-Mortem--
عموماً پوسٹ مارٹم کے معائنے میں اتنی غیر معمولی اور بلا جواز تاخیر اس وقت ہوتی ہے جب واقعہ غیر مشاہدہ شدہ ہو اور تفتیشی ایجنسی گواہوں، مدعی کی دستیابی اور ابتدائی تفتیش کے بعد ایف آئی آر اور انکویسٹ رپورٹ میں ذکر کرنے کے لیے استغاثہ کی کہانی من گھڑت کرنے میں وقت گزارے۔
----Such inordinate and unexplained delay in postmortem examination normally occurs when occurrence remained unwitnessed and intervening time is spent by investigation agency to have availability of witnesses, complainant and to fabricate prosecution story to be mentioned in FIR and inquest report after preliminary inquiry. [Para 8] A
2009 PCr.LJ 1022 Lahore.
Sardar Muhammad Latif Khan Khosa and Hafiz Muhammad Asif, Advocates for Appellants.
Mr. Waqar Abid Bhatti, Deputy Prosecutor General for State.
Rai Bashir Ahmad, Malik Tamir Ahmad Awan and Mr. Muhammad Umair Gill, Advocates for Complainant.
Date of hearing: 10.6.2024.
Judgment
Syed Shahbaz Ali Rizvi, J.--This judgment shall dispose of Criminal Appeal No. 185215 of 2018 filed by Ameer Hassan, appellant against his convictions and sentences, Criminal Appeal No. 223116 of 2018 filed by Atta Ullah, complainant against the acquittal of Tanvir Hassan and Shamraiz Hassan, Respondents No. 2 & 3 therein and Murder Reference No. 160 of 2018 sent by the learned trial Court for confirmation or otherwise of sentence of death awarded to convict Ameer Hassan as all these have arisen out of same judgment dated 19.03.2018 passed by the learned Addl. Sessions Judge, Gujranwala in case FIR No. 161 dated 06.04.2015. offence under Sections 302 & 34, PPC registered at Police Station Khiali District Gujranwala whereby, the appellant was convicted under Section 302(b), PPC for the murder of Sana Ullah and Muhammad Munir, deceased persons and sentenced to death on two counts as Ta’zir with direction to pay Rs. 500,000/-as compensation to the legal heirs of each deceased (total Rs. 10,00,000/-) as envisaged under Section 544-A of the Code of Criminal Procedure, 1898 and in default thereof, to undergo simple imprisonment for six months on each default. The learned trial Court however, through the same judgment acquitted Tanvir Hassan and Shamraiz Hassan, co-accused while giving them the benefit of doubt.
2. Brief facts of the case, as disclosed by Atta Ullah, complainant (PW-5) in his application (Exh-PA) on the basis of which formal crime report (Exh-PB) was registered, are that on 06.04.2015 at 06.30 p.m, the appellant while armed with Kalashnikov along with two unknown persons, later on nominated as Tanvir Hassan and Shamraiz Hassan, co-accused (since acquitted) committed the murder of Sana Ullah and Muhammad Munir, deceased persons by firing at them with his Kalashnikov.
Motive, behind the occurrence, as per complainant, was dispute over the payment of sale price of two cars which were sold by Muhammad Javed, maternal nephew of Muhammad Munir. Deceased to the appellant.
3. Ameer Hassan, appellant was arrested in this case on 02.10.2015 by Shaukat Ali, SI (PW-12) who, on 14.10.2015, being in police custody, after making disclosure, got recovered Kalashnikov
(P-7) along with eight live bullets (P-8/1-8) which was taken into possession vide recovery memo Exh-PQ. After completion of investigation, report under Section 173 of the Code of Criminal Procedure, 1898 was submitted. The learned trial Court, after observing pre-trial codal formalities, framed the charge against the appellant and his co-accused (since acquitted) to which they pleaded not guilty and claimed trial.
4. The prosecution, in order to prove its case, produced as many as twelve witnesses during the trial. Atta Ullah, complainant (PW-5) and Muhammad Asif (PW-6) furnished the ocular account. Waris Ali, 2946/C (PW-10) is the witness of recovery of crime weapon at the instance of the appellant.
The medical evidence was furnished by Dr. Shoaib Rasool
(PW-9) who, on 07.04.2015 at 07.00 a.m. Conducted postmortem examination on the dead body of Sana Ullah, deceased and noted four fire-arm wounds, two entry and two exit, on his body. In his opinion, death in this case was occurred due to injury to heart and lungs which led to cardiopulmonary arrest under Injuries No. 1 to 4 which was sufficient to cause death under normal course of nature. The injuries were ante-mortem in nature and caused by fire-arm. As per Medical Officer (PW-9), probable duration between injuries and death was immediate whereas, between death and postmortem examination about twelve hours.
He, on the same day at 08.00 a.m, conducted the postmortem examination on the dead body of Muhammad Munir, deceased and noted eleven fire-arm wounds, five entry, five exit and one glancing wound, on his body. In his opinion, death in this case occurred due to injury to lungs and major abdominal and iliac vessels under injuries No. 1 to 6 which led to cardiopulmonary arrest and were sufficient to cause death under normal course of nature. All injuries were ante-mortem in nature and were caused by fire-arm. Probable duration, as observed by him, between injuries and death was immediate whereas, between death and postmortem examination about twelve hours.
Javed Akhtar, SI (PW-11) and Shaukat Ali, SI (PW-12) are the Investigation Officers of this case. Bilal Ahmad Bhatti, Draftsman (PW-8) prepared scaled site-plans (Exh-PL &Exh-PL/1) of the place of occurrence whereas, rest of the witnesses are formal in nature. Learned Deputy District Public Prosecutor gave up Muhammad Javed, Amjad and Mushtaq, 1213/C PWs being unnecessary and after tendering in evidence reports of the Punjab Forensic Science Agency (Exh-PAA and Exh-PBB) closed the prosecution evidence.
5. Thereafter, statement of the appellant under Section 342 of the Code of Criminal Procedure, 1898 was recorded wherein, he refuted the allegations levelled against him and professed his innocence. He further deposed Sana Ullah, deceased, a friend of Muhammad Munir, deceased was a desperate, paid killer and hardened criminal and used to settle dispute of people after getting his share. He further stated that there was a dispute of money between him and Muhammad Javed, maternal nephew of Muhammad Munir, deceased who approached Muhammad Munir, deceased to ask Sana Ullah. deceased to receive money from him forcibly. He also averred that they used to harass him to receive money from him. On the day of occurrence, when he was coming back to his house after dropping his wife to her school, he received information that Sana Ullah, deceased followed him and when he reached his house, Sana Ullah and Muhammad Munir, deceased armed with fire-arms reached there and started abusing and humiliating him and in sudden provocation, in self defence, he snatched Kalashnikov of Sana Ullah and fired upon them as they were not Masoomud Dam. He further deposed that the PWs were not present at the spot at the time of occurrence. He did not opt to appear as his own witness as provided under Section 340(2) of the Code of the Criminal Procedure, 1898 in disproof of the allegation levelled against him however, he did produce Muhammad Munir 1854/C (DW-1) and certain documents (Exh-DA to Exh-DF and Mark-DA) in his defence.
6. Arguments heard. Record perused.
7. As per prosecution’s story canvassed in crime report (Exh-PB) and stated by the eye-witnesses Atta Ullah, complainant (PW-5) and Muhammad Asif (PW-6), the dispute with regard to the payment of consideration amount of two motorcars, sold by Muhammad Javed (given up PW) to the appellant existed between Muhammad Javed and the appellant for which Muhammad Munir, deceased requested Sana Ullah, the other deceased to get the amount recovered through ‘Punchiyat’ whereupon, Sana Ullah became guarantor upon the asking of the appellant who assured payment on 06.04.2015 and on the said date, he telephonically called Muhammad Javed to take his amount after returning the cheque and stamp papers of the appellant. In consequence of said call, Muhammad Javed (given up PW) and Muhammad Munir went to the complainant and his brother and accompanied them to the house of the appellant that was on rent with him and when they went there, the occurrence took place at 06.30 p.m. in view of the witnesses (PW-5, PW-6 and Muhammad Javed, given up PW). There is no doubt that the related witnesses are good witnesses and their statements can be relied upon but if the place of occurrence is not the place where their presence is natural then the reason for their availability at the relevant time and place is to be furnished by the witnesses. Muhammad Asif (PW-6) was neither an elder of the area nor in any manner connected with the dispute that allegedly existed between Muhammad Javed and Ameer Hassan, appellant hence, there was no occasion to justify his presence there at the relevant time. Allegedly a Punchiyat was convened by Sana Ullah, deceased of which Atta Ullah (PW-5) and Muhammad Asif (PW-6) were admittedly not even the members. Perusal of entire evidence transpires that Ameer Hassan, appellant did not even try to hurt Muhammad Javed (given up PW). Atta Ullah, complainant (PW-5), during his cross examination, concedes that the witnesses witnessed the occurrence from inside the room, the place of occurrence and there was no visual barrier between the witnesses and the appellant but none of the three witnesses received even a scratch during the occurrence. If it was the case then presence of Atta Ullah, complainant (PW-5) and Muhammad Asif
(PW-6) at the relevant time becomes doubtful. Even per prosecution’s own case, Muhammad Javed (given up PW) was the person connected with the motive of this occurrence and it was Muhammad Javed who took both the deceased to the place of occurrence who were having no enmity of their own with the appellant. Muhammad Javed (given up PW) undeniably the most material witness of this case as he was the person who went at the relevant time to receive his amount allegedly due against the appellant and the dispute was between the appellant and Muhammad Javed. In this view of the matter, Muhammad Javed cannot be taken by any stretch of imagination as a witness unnecessary but the reasons best known to the prosecution, his evidence has been withheld by declaring him unnecessary that in the circumstances reflects adverse to the credibility of prosecution case.
8. According to the evidence produced by the prosecution though the occurrence took place at 06.30 p.m. on 06.04.2015 and the occurrence was witnessed one that too by the emotionally related witnesses of both the deceased and according to the contents of the FIR, the matter was reported to the police through a written application at 07.30 p.m. on the same day yet surprisingly, police papers were not ready to be handed over to the Medical Officer for postmortem examination purpose of both the deceased which is evident from the statement of Dr. Shoaib Rasool (PW-9) who conducted the postmortem examination of both the deceased. He in very clear terms disclosed that the police papers were received by him at 06.30 a.m. Which became the reason for delay in conducting the postmortem examination. It is relevant to mention here that the prosecution witnesses (PW-5, PW-6, PW-7 and the Investigation Officer PW-11) are also discrepant with regard to the time of dispatch of dead bodies to the hospital for postmortem examination. They are even inconsistent qua the time of arrival and duration of stay of police at the place of occurrence, on the first day. This speaks adverse to the credibility of first day investigation. In these circumstances noticed delay of twelve hours in dispatch of police papers to the Medical Officer after the occurrence could not be plausibly explained by the prosecution and even today during the arguments by learned counsel for the complainant. The Courts have repeatedly held that such inordinate and unexplained delay in postmortem examination normally occurs when the occurrence remained unwitnessed and the intervening time is spent by the investigation agency to have the availability of witnesses, the complainant and to fabricate the prosecution story to be mentioned in the FIR and inquest report after preliminary inquiry. In this regard, reference can respectfully be made to the case of Muhammad Riaz v The State (2009 PCr.LJ 1022 Lahore) wherein, this Court has observed as under:
“13. ... It is also not found correct that the F.I.R. had been got registered with promptitude as the occurrence had allegedly taken place at about 5-00 a.m. while the post-mortem examination was conducted at 1-00 p.m. and there is every possibility that the intervening period was consumed in concocting a story and to await for the relatives of the deceased, who were made witnesses subsequently, otherwise, they have failed to establish their presence at the spot ...”
Same view was affirmed by the Hon’ble Supreme Court of Pakistan in the case of Irshad Ahmed v. The State (2011 SCMR 1190). Wherein the Hon’ble Supreme Court was pleased to observe as under:
“3. ... We have further observed that the post-mortem examination of the deadbody of Shehzad Ahmed deceased had been conducted with a noticeable delay and such delay is generally suggestive of a real possibility that time had been consumed by the police in procuring and planting eye-witnesses and in cooking up a story for the prosecution before preparing police papers necessary for getting a post-mortem examination of the deadbody conducted ...”
Same view was reiterated by the Hon’ble Supreme Court of Pakistan in the case of Khalid @ Khalidi and 2 others v. The State (2012 SCMR 327) and Sardar Bibi and another v. Munir Ahmad and others (2017 SCMR 344). In the circumstances of case in hand, we are of the view that the occurrence of this case was un-witnessed.
9. It has also been noticed that the complainant (PW-5) also claims that the clothes of the witnesses were smeared in blood but admittedly, blood stained clothes of the witnesses were never taken into possession by the Investigation Officer. This reflects adverse to The prosecution’s claim of presence of the eye-witnesses (PW-5 &
PW-6) at the place of occurrence.
10. We have also noticed that Shamraiz Hassan and Tanvir Hassan, co-accused, nominated subsequently by the complainant
(PW-5) through a supplementary statement recorded on 05.07.2015 stand acquitted of the charge by the learned trial Court vide the same judgment under challenge. Both of the said acquitted accused were found innocent during the investigation. Nothing could be recovered at their instance. According to Draftsman (PW-8), per sealed site-plan (Exh-PL), no role has been assigned to unknown accused persons as no one told him about their role in commission of alleged offence. Almost similar has been stated by the investigation officer. Admittedly, both the said co-accused are real brothers of the appellant and during the investigation, they claimed their previous acquaintance with the witnesses hence, their acquittal, in the circumstances, also renders the credibility of the testimony of the Prosecution witnesses (PW-5 &
PW-6) doubtful. The testimony of the eye-witnesses after the acquittal of Tanveer Hassan and Shamraiz Hassan requires independent corroboration to make it trustworthy but no such corroboration is available on record.
11. Admittedly, rifle allegedly recovered at the instance of the appellant did not wed with the crime empties taken from the place of occurrence during the site inspection that renders the alleged recovery inconsequential to the prosecution case.
12. So far as the motive part of the occurrence is concerned, we have noticed that Muhammad Javed (given up PW) was the person, as mentioned above, who was allegedly having dispute with the appellant and because of him a ‘Punchiyat’ was convened by deceased Sana Ullah but the prosecution itself avoided to produce him by declaring him an unnecessary witness. The complainant admittedly, was not the member of ‘Punchiyat’ allegedly convened. No other witness who remained part of said ‘Punchiyat was produced by the prosecution. Even no documentary evidence in this regard is available on file. Even the documents of two cars allegedly purchased by the appellant could not be brought on record by the prosecution.
13. As far as the defence of sudden and grave provocation taken by the appellant is concerned, we find guidance from the venerated judgment of the Hon’ble Supreme Court of Pakistan reported as (2013 SCMR 383) titled as “Azhar Iqbal v. The State” and for ready reference relevant excerpt from the said judgment is reproduced as under:
“2. After hearing the learned counsel for the appellant and the learned Additional Prosecutor-General, Punjab appearing for the State and having gone through the record of the case with their assistance it has straightaway been observed by us that both the learned Courts below had rejected the version of the prosecution in its entirety and had then proceeded to convict and sentence the appellant on the sole basis of his statement recorded under Section 342, Cr.P.C. wherein he had advanced a plea of grace and sudden provocation. It had not been appreciated by the learned Courts below that the law is quite settled by now that if the prosecution fails to prove its case against an accused person then the accused person is to be acquitted even if he had taken a plea and had thereby admitted killing the deceased. A reference in this respect may be made to the case of Waqar Ahmad v. Shaukat Ali and others (2006 SCMR 1139). The law is equally settled that the statement of an accused person recorded under Section 342, Cr.P.C. is to be accepted or rejected in its entirety and where the prosecution’s evidence is found to be reliable and the exculpatory part of the accused person’s statement is established to be false and is to be excluded from consideration then the inculpatory part of the accused person’s statement may be read in support of the evidence of the prosecution. This legal position stands amply demonstrated in the cases of Sultan Khan v. Sher Khan and others (PLD 1991 SC 520), Muhammad Tashfeen and others v. The State and others (2006 SCMR 577) and Faqir Muhammad and another v. The State (PLD 2011 SC 796).”
We have arrived at an unavoidable conclusion that the prosecution has miserably failed to prove its case against the appellant beyond the shadow of a reasonable doubt hence, he is not to be convicted only on the basis of his defence taken during the trial. Moreover, as held by the Hon’ble Apex Court, the statement of an accused recorded under Section 342 of the Code of Criminal Procedure, 1898 is to be taken and considered in entirety. In the light of above discussion, Criminal Appeal No. 185215 of 2018 filed by Ameer Hassan, appellant is allowed, conviction and sentence awarded to him by the learned trial Court is set aside and he is acquitted of the charge levelled against him by extending him the benefit of doubt. He is in custody, be released forthwith if not required to be detained in any other case.
14. For what has been discussed above, Criminal Appeal No. 223116 of 2018 filed by Atta Ullah, complainant against the acquittal of Tanvir Hassan and Shamraiz Hassan, respondents therein is also dismissed in limine.
15. Murder Reference No. 160 of 2018 is answered in the NEGATIVE, and sentence of death awarded to Ameer Hassan, convict is NOT CONFIRMED.
(A.A.K.) Appeal dismissed
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