Imran Haider vs The State etc.

jStereo. H C J D A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT AT LAHORE

JUDICIAL DEPARTMENT

Crl. Appeal No.615/2012 (Imran Haider alias Mani V. The State etc)

JUDGMENT

Date of hearing: 07.04.2014.______________________________________ Appellants by: M/s Ghulam Murtaza Khan and Muhammad Ijaz, Advocates for the appellant.

State by: Mr.Saeed Ahmed Sheikh, Addl. Prosecutor General. __ Complainant by: Mr.Shahid Nawaz Langrial, Advocate for the complainant.

AALIA NEELUM, J:- Imran Haider alias Mani son of Ibrar Hussain Shah, Caste Syed, resident of Aminpur Syedan, Tehsil and District, Gujranwala along with his co-accused persons was involved in case F.I.R. No.68, dated 22.4.2000, offence under Sections 302, 109, 148, 149 P.P.C., registered at Police Station, Ferozwala, District Gujranwala and was tried by Abher Gul Khan, Additional Sessions Judge, Gujranwala. The learned trial court seized with the matter in terms of judgment dated 12.03.2012 while convicting the appellant under Section 302 (b) P.P.C. and sentenced him to life imprisonment with the direction to pay Rs.2,00,000/-as compensation to the legal heirs of the deceased and in case of default thereof, further undergo six months S.I. The appellant was further convicted under Section 148 P.P.C. and sentenced to three years R.I. The benefit of Section 382-B Cr.P.C. was also extended in favour of the appellant.

2.Feeling aggrieved by the judgment of the learned trial court, Imran Haider, appellant has assailed his conviction through filing Criminal Appeal No.615 of 2012.

3.Prosecution story as alleged in the F.I.R (Exh.P.E/1) lodged on the complaint (Exh.P.E) of Syed Israr Haider Shah (PW-1)/complainant is that on 21.4.2000 at about 9.30 a.m. the complainant along with his brother, namely, Azhar Abbas (since died), Shahid Raza and Abdul Aziz was present in the house of Faryad Hussain, which was being used for consolidation work in the village whereas the appellant along with his companions while armed with lethal weapons came at the alleged place of occurrence and they all caused firearm injuries to brother of the complainant, namely, Azhar Abbas (since dead) and decamped from the spot whereas injured was taken to hospital, where he succumbed to the injuries, hence, F.I.R. in hand.

4.The motive behind the alleged occurrence is that same was occurred on the abetment of Shabbir Shah etc, against whom trial was in progress and Azhar Abbas (since dead) had helped the complainant of that case and due to said grudge, alleged occurrence took place.

5.On the basis of the complaint submitted by the complainant, formal F.I.R (Exh.P.E/1) was chalked out by Faqeer Ullah, S.I. (PW-15) who being first Investigating Officer of F.I.R. in question visited the place of occurrence and prepared the site plan of place of alleged occurrence as Exh.P.K and also took into possession a piece of cloth “Chaddar” blood stained as P-3 after preparing recovery memo as Exh.P.A, while piece of bed (P-4), one “Gadha” (P-5), one blanket (P-

6)and two pillows (P-7) & (P-8) and “Chaddar” (P-9) after preparing recovery memo as Exh.P.A & Exh.P.A/1. Dying declaration of the deceased-Azhar Abbas (Exh.P.J) as well as statements of PWs were also recorded by him and after reaching the police station, handed over the case property to the Moharrar for safe custody. Last worn clothes of the deceased, i.e. Lacha (P-1) and Bunyan (P-2) along with police papers were handed over to Muhammad Arif, A.S.I, which were taken into possession as Exh.P.B. He also prepared the inquest report

as Exh.P.L. Thereafter investigation came into the hands of Nusrat Ali, S.I. who got recovered a rifle 222-bore (P-10) and on unloading the same, seven live bullets (P-11/1-7) were taken into possession vide recovery memo Exh.P.H, site plan qua place of recovery (Exh.P.J) was also prepared.

6.It will not be out of place to mention here that the learned trial court through judgment dated 27.7.2002 convicted and sentenced the co-accused, namely, Zahir Hussain and Sibtain-ul-Hassan for life imprisonment whereas Shabbir Hussain, Ibrar Hussain and Ijaz Hussain were acquitted. Later on Zahir Hussain and Sibtain ul Hassan were also acquitted of the charge by this Court through Criminal Appeal No. 1565 of 2002 filed by them while dismissing the Criminal Revision 983 of 2002 filed by the complainant for enhancement of their sentences. Moreover, the complainant also filed a Criminal Petition No.239 of 2006 before the August Supreme Court of Pakistan which was dismissed on 03.10.2012.

7.Having found the accused person guilty, the Investigating Officer prepared report under Section 173, Cr.P.C. and sent the same to the court of competent jurisdiction. On 13.11.2010, the learned trial court formally charge sheeted the appellant to which he pleaded not guilty and claimed trial. The prosecution in support of its version produced as many as fifteen (15) prosecution witnesses.

8.Ocular account of first part of occurrence in this case has come out from the statements of Israr Haider (PW-1)/complainant, Abdul Aziz (PW-2) and Faqeer Ullah, S.I. (PW-15) whereas, Dr. Nayyar Rasheed Khan, Medical Superintendent, Tehsil Headquarter Hospital, Kamonki, District, Gujranwala (PW-6), Dr.Zahid Pervez Butt, Senior Medical Officer, District Headquarter Hospital, Gujranwala (PW-7) who had observed body of the deceased-Azhar Abbas in an injured

condition and conducted postmortem examination of the dead body of the deceased and found the following injuries on his person:-

i)A glancing lacerated firearm wound 3 x 1 cm on front of left knee.

ii)A firearm lacerated wound 1.5 cm x 1 cm going deep on outer side of left knee joint.

iii)A firearm wound of exit 1 x 1 cm on inner side of left knee.

iv)A firearm lacerated wound 0.75 cm x 0.75 cm going deep with blackened bird inverted margins on outer side of left leg, 10 cm upper part, 10 cm from left knee joint along with dusting in an area of 14 x 9 cm.

v)A firearm lacerated wound of entry 0.75 cm x 0.75 cm going deep on outer and back of left leg about middle part.

vi)A wound of exit 1 x 1 cm with averted margins on back of left leg at outer part about middle.

vii)A firearm wound of exit 4 x 3 cm with averted margins on inner side of left leg middle part.

viii)A firearm wound of exit 8 x 7 cm on back of left knee including lower part of left thigh.

ix)Multiple firearm lacerated wound in an area of 15 x 22 cm on front of right thigh including right knee joint.

x)A firearm lacerated wound 16 x 14 cm on back of right knee joint wound of exit.

xi)A firearm lacerated wound 6 x 4 cm on inner side of right leg middle part.

xii)A firearm wound of exit 2 x 3 cm on back of right leg about middle part.

Opinion. all the injuries were caused by firearm weapons and probable duration of injuries was about two hours. MLR was handed over to Faqeer Ullah, S.I. as Exh.P.O which bears his signature and seal.

Thereafter postmortem on the body of the deceased-Azhar Abbas was conducted by Mr.Zahid Pervaiz Butt, D.H.Q. Hospital, Gujranwala and found following injuries on his person:-

i)Healed wound on front of left knee 2 x 0.5 cm.

ii)Healed wound 1 x 0.5 cm outer side of left knee joint.

iii)Healed wound 1 x 0.5 cm on inner side of left knee joint.

iv)Healed wound on outer side of left leg upper part 10 cm from left knee joint.

v)Healing wound on left leg outer and back middle part about 0.75 x 0.5 cm.

vi)Healing wound on back of left leg outer part middle 0.75 x 0.5 cm.

vii)Infected wound 3 x 2 cm inner side of left lg middle part.

viii)An infected wound 6 x 5 cm on back of left knee also lower part of thigh.

ix)Amputated right leg above knee.

After conducting the postmortem examination, the doctor rendered the following opinion:-

“The death occurred due to septicemia gasgangrine leading to cardio pulmonary arrest and death.

“Probable time between injuries and death was uncertain and between death and postmortem was 14 to 15 hours”.

Thereafter the doctor prepared the postmortem report (Exh.P.P) as well as sketch of injuries as (Exh.P.H/1) and (Exh.P.P/1) and handed over to Muhammad Arif, 1782/C. The statements of remaining prosecution witnesses are formal in nature.

9.On 14.04.2011, learned Assistant District Public Prosecutor gave up Shahid Hussain, Azhar Abbas, Ghulam Abbas being un-necessary and Zameer-ul-Hassan being dead whereas Safdar Ali, Sikandar Abbas, Iftikhar Hussain, Imran Abbas, Inspector and Shehram were given up by the learned Law Officer on 23.11.2011 being un- necessary, while Muhammad Yaqoob, S.I. being un-necessary was

also given up on 25.01.2012. PWs, namely, Tariq Mehmood 881-HC and Zafar Iqbal, H.C.89 (since dead) were given up on 07.02.2012, likewise Imran Abbas, S.H.O., on 21.02.2012 closed evidence of the prosecution by tendering the reports of Chemical Examiner as well as Serologist as (Exh.P.P), (Exh.A.D.) and report of Forensic Science Laboratory as (Exh.P.R).

10.The appellant was also examined in terms of Section 342 Cr.P.C., wherein he opted not to appear as his own witness in disproof of the allegations levelled against him in the prosecution version. In response to a particular question why this case against him and why the PWs deposed against him, Imran Haider-appellant, made the following deposition:-

“I have been falsely involved in this case being the elder son of Ibrar Shah (co-accused acquitted) as my father has civil litigation with complainant. I have no nexus with the crime alleged as I was not present at the spot but the complainant party with due deliberation and consultation at belated stage falsely involved me as complainant was not present in the village and he was called from city Gujranwala. All my co-accused have been acquitted honourably from trial court as well as from Hon’ble Lahore High Court, Lahore. As the PWs are closely related and party-men and they had reason to falsely involved me.”

In defence, appellant-Imran Haider has produced attested copies of judgment Ex.D.A and appeal Ex.D.B.

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 shadow of reasonable doubt resulting into conviction of the appellant in the afore stated terms.

12.Learned counsel for the appellant has contended that medical evidence is not in line with the ocular account; that the impugned judgment is based on surmises and conjectures; that case of the petitioner is also at par with that of his co-accused who were acquitted

by the learned trial court as well as by this Court; that there is misreading and non-reading of evidence as well the documents exhibited during the evidence. Lastly, prayed for kind indulgence of this Court in the circumstances.

13.On the other hand, learned Additional Prosecutor General assisted by the learned counsel for the complainant has vehemently opposed the contentions raised by the learned counsel for the appellant with the submissions that the appellant is duly named in the crime report with specific role of making fire shot upon Azhar Abbas, deceased. Learned Law Officer has next contended that a riffle .222 was recovered from him and that during the course of investigation, the appellant was found guilty.

14.Arguments advanced from both sides have been heard. I have also gone through the record available on file with the able assistance of the learned counsel for the parties.

15.In the instant case the occurrence had taken place on 21.4.2000 at 9.30 a.m. and the matter was reported to the police on 22.4.2000 at 10.30 a.m whereas inter-se distance between the police station Ferozewala, District Gujranwala and the place of occurrence is 16- Kilometer. There was inordinate delay of 25 hours in lodging the F.I.R. and in this way possibility of deliberations and consultations cannot be ruled out.

16.As per prosecution version put forth in the crime report by Israr Haider Shah-complainant (PW-1), real brother of deceased-Azhar Abbas is that on 21.4.2000 he along with Azhar Abbas (since died), Shahid Raza (given up) and Abdul Aziz (PW-2) was present in the house of Faryad Hussain which was being used by the officials of consolidation in the village with the consent of all the villagers at about 9.30 a.m. for the purpose of consolidation work. When the appellant along with his five co-accused persons, namely, Sibtain-ul-

Hassan (since acquitted) armed with 222 bore rifle, Zahir Shah (since acquitted) armed with 12 bore double barrel gun, Qalander Hussain (Proclaimed offender) armed with pump action, Muzamil Hussain (since acquitted) armed with 244 bore rifle, and Saki Hussain Shah (since acquitted) armed with 222 bore rifle, arrived at place of occurrence while making firing at Azhar Abbas simultaneously. The appellant had made a fire shot with his rifle .222 bore, which landed on the inner side of left leg of injured-Azhar Abbas (since died). Israr Haider Shah (PW-1) stated at the trial that he brought his injured brother-Azhar Abbas to Civil Hospital, Gujranwala from where he was referred to Mayo Hospital, Lahore but from the Medicolegal report (Exh.PF) it reveals that injured-Azhar Abbas (since died) was brought to the hospital by Faqir Ullah S.I (PW-15) and none else. In the column of medicolegal report (Exh.PF), “name of relative and friend” was written by the police. It is clear from the medicolegal certificate that the injured was not previously examined and in the column of date of admission, name of Faqir Ullah S.I (PW-15) was written who brought the injured on 21.4.2000 at 11.50 a.m. Faqir Ullah S.I (PW-15) during cross-examination has admitted that his signatures are available on the medicolegal report (Exh.PF) and medical examination of injured- Azhar Abbas (since died) was conducted through the police. It is also relevant to mention here that carbon copy of the MLR was also received by Faqir Ullah S.I (PW-15) as his signatures were available on it wherein it is written that carbon copy was received. From the contents of the medicolegal report (Exh.PF) it reveals that injured- Azhar Abbas (since died) was brought by the police for medical examination and not by his real brother or any eye witness of the occurrence whereas Israr Haider Shah, compainant (PW-1) during cross-examination while replying to specific question deposed as under:-

“On the day of occurrence no official of police accompanied the injured to Mayo Hospital

Lahore. It is correct that the MLR was obtained by the police from Civil Hospital, Gujranwala regarding injured. Perhaps Faqir Ullah S.I. would have been the person in whose presence the medical examination of the injured was conducted.”

The fact that name of Israr Haider Shah-complainant (PW-1) does not appear in the medicolegal certificate, makes the case of the prosecution doubtful.

17.Israr Haider Shah-complainant (PW-1) deposed that firstly he took the injured to the hospital and after obtaining the medicolegal certificate, he made report to the Police Station at Ferozewala, District Gujranwala, on 22.04.2000 through written application (Exh.PA) for reporting the alleged incident. Israr Haider Shah (PW-1) during cross-examination deposed that application (Exh.PA) was drafted outside the police station and he did not remember name of scriber of Exh.PA. However from the evidence it reveals that the police had reached at the hospital in presence of the complainant as deposed by PW-1. Israr Haider Shah (PW-1) during cross-examination deposed as under:- “I did not meet police official in the hospital, Gujranwala............”

Whereas Faqir Ullah S.I (PW-15) during cross-examination deposed that:

“I do not remember whether I met the complainant in the hospital on 21.4.2000 at Mayo Hospital, Lahore or not (when the witness was confronted with his previous statement in which he deposed that he met the complainant in the hospital on 21.04.2000 he deposed that he do not remember this fact at present).”

18.The ocular account furnished by Israr Haider Shah (PW-1) and Abdul Aziz (PW-2) who have been mentioned as eye-witnesses

whereas said Abdul Aziz (PW-2) deposed during cross-examination which reads as under:-

“It is correct that at the time of occurrence the deceased was present at the bed (plang) in the room. When I entered into the room the deceased Azhar had fallen from the cot due to the pain of injuries.----I had not touched the deceased.”

Whereas Israr Haider Shah (PW-1) during examination-in-chief deposed that:

“on 21.04.2000 at about 9.30 a.m. I along with Azhar Abbas, Shahid Raza and Abdul Aziz was present in the house of Faryad Hussain----Azhar Abbas fell on the bed after receiving first injury.”

And during cross-examination he deposed that:

“When I entered in the room place of occurrence, Azhar deceased was lying on the bed. I along with Shahid and Abdul Aziz Pws and other persons lifted the injured from the bed. Our clothes also became blood stained due to the blood of deceased injured including Aziz and Shahid Pws.”

In these circumstances presences of both the witnesses at the place of occurrence has become highly doubtful. The testimony of the eye witnesses does not inspire confidence. It is also an admitted fact on record that there existed enmity between the parties. The complainant admitted that there was a civil litigation over the dispute of share of Sakina Bibi between Ibrar Hussain and us. (It is relevant to mention here that Ibrar Hussain is father of the appellant). Independent corroboration to the prosecution version is essential requirement in case of admitted enmity between the parties, therefore, an independent corroboration was necessary. More over, during recording of evidence, PW1 and PW2 admitted that other persons

were present at Civil Hospital as well as at the place of occurrence. PW-1 Israr Haider Shah stated as under:-

“---that we reached in Civil Hospital along with the injured after 1/11⁄2 hours of the occurrence. I do not remember that whether Shahid and Aziz PWs were with me in the hospital including Azkar Hussain Mehdi, Farrukh, Sikandar etc.”

Whereas PW2 Abdul Aziz stated that

“about hundred people were gathered at the place of occurrence within 5/6 minutes after the occurrence and roundabout 10/12 minutes after the occurrence, Azhar Abbas was taken to the hospital.”

But none of them has been produced in the court which also makes case of the prosecution doubtful.

19.The recovery of rifle .222 bore from the appellant on 26.5.2010 and its positive report Exh.PR is insignificant as no crime empty was taken into possession from the spot by the Investigating Officer whereas PW-1 and PW-2 categorically stated that during the occurrence the accused persons had fired indiscriminately which also makes the case of prosecution doubtful.

20.As far as absconsion of the appellant is concerned, it is established principle of law that mere absconsion is not a proof of guilt of an accused. The August Supreme Court of Pakistan in the case reported as Rasool Muhammad v. Asal Muhammad and another (PLJ 1995 SC 477) has observed as under:-

“----disappearance of a person named as a murderer/culprit after occurrence, is but natural, whether named rightly or wrongly. Abscondence per se is not a proof of guilt of an accused person. It may, however, create suspicions against him but suspicions after all are suspicions.----”

21.According to the prosecution case the motive behind the occurrence was that on the abetment and instigation of Shabbir Shah, Ijaz Shah and Ibrar Shah, the alleged occurrence took place and they have been acquitted by the learned trial court. No appeal against their acquittal has been filed by the complainant and as such the decision qua acquittal of aforementioned co-accused attained finality. The appeal filed by Sibtain-ul-Hassan and Zahir Shah against their conviction was accepted whereas Criminal Revision filed by the complainant for enhancement of conviction and sentence has been dismissed by this Court. The complainant assailed acquittal order through Criminal Petition No.239 of 2006 of Sibtain-ul-Hassan and Zahir Shah before August Supreme Court of Pakistan and the same had been upheld by the August Supreme Court on 03.10.2012. It is settled principle of law that if evidence of the prosecution is disbelieved qua major portion of the occurrence, it cannot be believed in the absence of strong corroboration. Reliance in this regard is placed on the ratio decidendi of August Supreme Court of Pakistan in the case of Akhtar Ali and others v. The State (PLJ 2008 SC 269) wherein it is observed as under:-

---Appreciation of evidence---Eye witnesses found to have falsely implicated five our of eight accused then conviction of remaining accused on the basis of same evidence cannot be relied upon without independent corroboration.”

Likewise, another case titled Sheral alias Sher Muhammad v. The State (1999 S C M R 697) wherein it is also observed as under:- ---Accepting testimony of eye-witnesses disbelieved qua majority of accused persons---When eye-witnesses were disbelieved qua majority of accused, material corroboration was required to accept their testimony against other accused.

22.Upshot of the above discussion is that the occurrence was not witnessed by the prosecution witnesses as both, Israr Haider Shah, the

complainant and Abdul Aziz were not present at the place of occurrence at the relevant time. Moreover delay in lodging F.I.R., non-availability of any crime empty, material contradictions in the statements of the witnesses, uncorroborated recovery of pistol are the circumstances which create doubt in the authenticity of the prosecution version coupled with the fact that on the same set of evidence co-accused of the appellant were acquitted by the learned trial court as well as by this court and the reasons given by this Court while accepting appeal against the conviction and sentence of the co- convicts, namely, Sibtain-ul-Hassan and Zahir Shah are equally applied to the case of the appellant. In this backdrop it can safely be held that the prosecution has badly failed to bring home the guilt of the accused/appellant and conviction passed by the learned trial court in the circumstances is against all canons of law recognized for the dispensation of criminal justice. As per dictates of law benefit of every doubt is to be extended in favour of the accused/appellant.

23.Consequently, the instant appeal is allowed and conviction and sentence imposed upon the appellant is hereby set aside and Imran Haider, appellant is acquitted of the charge by extending him benefit of doubt. He is confined in the jail and is ordered to be released forthwith, if not required in any other case.

(Aalia Neelum) Judge Approved for reporting.

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