State vs Muhammad Aslam

CJDA 38

JUDGMENT SHEET

LAHORE HIGH COURT, BAHAWALPUR BENCH,

BAHAWALPUR

Criminal Appeal No. 65 of 2011 (Muhammad Aslam etc. Vs. The State) (M.R. NO. 05 of 2011)

Date of hearing: 01.07.2014 Appellants by: Mr. M. Sharif Bhatti, Advocate Complainant by: Ch. Haq Nawaz Advocate State by: Ch. Asghar Ali Gill, DPG

Sadaqat Ali Khan, J.: This single judgment shall dispose of Criminal Appeal No. 65 of 2011 filed by Muhammad Aslam and Gulzar Ahmed present appellants and Murder Reference No.05 of 2011 sent by the trial court for confirmation of the death sentence of appellants or otherwise as both matters have arisen out of the same judgment dated 10.02.2011 passed by learned Additional Sessions Judge, Haroonabad according to which the present appellants were convicted and sentenced as under:- “Muhammad Aslam was convicted under section 302(b) PPC and sentenced to death for committing Qatl-i-Amd of Ali Ahmed deceased along-with payment of compensation Rs.1,00,000/- to the legal heirs of the deceased under section 544-A Cr.P.C and in default thereof six months S.I.

Gulzar Ahmed was convicted under section 302(b) PPC and sentenced to death for committing Qatl-i-Amd of Ali Ahmed deceased along-with payment of compensation Rs.1,00,000/- to the legal heirs of the deceased under section 544-A Cr.P.C and in default thereof six months S.I.

in case FIR No. 481 dated 16.10.2010 under section 302/34 PPC police station, Faqirwali Tehsil Haroonabad District Bahawalnagar.

2.The facts of the case has been stated by Muhammad Abbas complainant (PW-3) in his statement before the trial court and same statement is hereby reproduced for narration of the facts: - “Ali Ahmad deceased is my real brother. About 3 months ago at about evening time, he went to the house of Muhammad Arif

Criminal Appeal No. 65 of 2011 Appeal No. 393-2010

Lohaar to visit him as he was ailing but he did not return within considerable time. I alongwith Zulifqar and Shamim Akhtar PWs proceeded to the house of said Muhammad Arif Lohaar. When we reached in the Chowk, we saw that my brother was coming back. We saw the deceased as electric bulb was enlightening. One unknown culprit said in lowed voice that Ali Ahmad is coming. Whereupon Muhammad Aslam and Gulzar Ahmad accused present before court armed with Tokies alongwith their companion Nauman and Muhammad Asif (since declared innocent), who were also armed with hatchet emerged there. In our view Gulzar accused gave Toky blow hitting the neck of the deceased similarly, Aslam accused also gave Toky blow on the temporal region of the deceased, after that both the accused mentioned above gave successive blows on head of the deceased. Muhammad Nauman and Muhammad Asif accused also gave hatchet blows to the deceased. Two unknown culprit having guns with them restrained us and said in case if we step forwarded we will also be done to death. We sounded alarm, no one except Khalid Javed attracted at the spot.

Motive behind this occurrence was that mother of Aslam accused obtained divorce from his father and contracted second Nikah with the deceased, due to this grudge Muhammad Aslam accused alongwith Gulzar Ahmad, Nauman and Asif committed the murder of my brother. My brother succumbed to the injuries at the spot. I moved application Exh.PC for the registration of FIR which bears my thumb impression. After postmortem examination, I received the dead body of my brother vide receipt Exh.PD”.

3.After registration of the case, investigation started and on completion of the investigation report under section 173 Cr.P.C was submitted in the trial court.

4.Learned trial court after observing legal formalities provided under the Criminal Procedure Code framed the charge on 13.12.2010 against present appellants Muhammad Aslam and Gulzar Ahmed under sections 302/34 PPC to which they pleaded not guilty and prosecution evidence was summoned.

5.Prosecution produced Ghulam Yasin PW-1, Muhammad Arshad Constable PW-2, Muhammad Abbas complainant PW-3, Khalid Javed PW-4, Ghulam

Criminal Appeal No. 65 of 2011 Appeal No. 393-2010

Mustafa PW-5, Muhammad Aslam Tahir, SMO, PW-6, Amjad Ali PW-7, Rafaqat Ali Constable PW-8, Abdul Latif SI PW-9Haji Mumtaz Ahmad PW-10 whereas PWs Shamim Akhtar was given up being won over and Zulifqar Ali, Muhammad Nawaz and Muhammad Ashraf were given up by the prosecution being unnecessary and tendered in evidence site plan Ex.PA, recovery memo of last worn clothes of the deceased Ex.PB, FIR Ex.PC, receipt of dead body Ex.PD, recovery memo of blood stained earth Ex.PE, post mortem report Ex.PF, injury plan Ex.PG, inquest report Ex.PH, site plan Ex.PJ, recovery memo of Toki Ex.PL, report of Chemical Examiner regarding blood stained earth Ex.PM, report of Chemical Examiner Tokki of Muhammad Aslam Ex.PN , report of Serologist Ex.PN/1, report of Chemical Examiner regarding Tokki of Gulzar Ahmad Ex.PO, report of Serologist Ex.PO/1 and closed the prosecution evidence.

6.Medical evidence was furnished by Dr. Muhammad Islam Tahir SMO PW-6, who stated that on 16.10.2010, he conducted postmortem examination on the dead body of Ali Ahmed deceased and observed as under:-

“EXTERNAL APPEARANCE:

Dead body of a middle age male, normally built, bearing light brown colour Qameez, Chaddar and Saafa. Clothes were blood stained, left eye was opened, right eye and mouth were closed. Rigor mortis present on neck, face, upper limbs, back and lower limbs. Postmortem staining present on lumber areas.

EXTERNAL INJURIES:

1.An incised wound 11 cm x 4 cm extending from right cheek to right head, above the right ear.

2.An incised wound 13 cm x 4 cm extending from right cheek to right lateral head, cutting right ear on the way.

3.An incised wound 10 cm x 3 cm underline skin and muscle cut on right side of neck. Lower to right ear.

4.An incised wound 13 cm x 5 cm on right and anterior neck, thyroid cartilage, major blood vessels and muscles cut on right side of neck.

Criminal Appeal No. 65 of 2011 Appeal No. 393-2010

5.An incised wound 4 cm x 1 cm on right forehead to cm above the right eyebrow.

6.An incised wound 7 cm x 3 cm on left posterior head.

7.An incised wound 5 cm x 2 cm on left posterior head. Two cm lower to injury No.6.

8.An incised wound 5 cm x 2 cm just lower to injury No.7.

9.An incised wound 6 cm x 2 cm on right posterior head/ in-direction.

INTERNAL POSTMORTEM:

CRANIUM AND SPINAL CORD.

Injury to skull already described. Fracture seen of left side of skull ward at posterior aspect. Membranes, brain and spinal cord healthy.

THORAX.

Trachea cut at sight of injury No.4. All other organs of thorax healthy.

ABDOMEN.

All other organs in the abdomen healthy. Stomach was empty.

MUSCLES BONES AND JOINTS.

Injuries already described.

In my opinion cause of death in this case was haemorrhage and shock due to injury No.1 to 9. All injuries were inflicted by sharp edged weapon and anti-mortem. The time lapsed between injuries and death was immediately and time lapsed between death and postmortem was within 24 hours”.

7.On the other hand, statements of present appellants Muhammad Aslam and Gulzar Ahmed were recorded under section 342 Cr.P.C who refuted the allegations so leveled against them and did not opt to appear as a witness under section 340(2) Cr.P.C and also did not produce the defence evidence and in reply to question “why this case against you and why the PWs deposed against you?” the appellant Muhammad Aslam replied as under:- “Deceased Ali Ahmad was a criminal and there were so many cases of heinous nature were registered against him at various police station. So many people of the locality were having grudge against him as he used to tease the people. Further more many people out of the locality were also inimical to him. I have no motive to

Criminal Appeal No. 65 of 2011 Appeal No. 393-2010

commit the murder of deceased as he was step father of mine. My mother and my step father were residing happily and my mother has been performing her matrimonial obligations in the house of deceased. I was residing with my mother and step father in the same house. Some unknown persons committed the murder of deceased, in fact, it was a blind murder and nobody has witnessed the occurrence. Complainant is real brother of deceased, he raised suspicion that I have might a hand in the murder of the deceased as complainant was not happy over the marriage with my father. I have been challaned by the police on the basis of suspicion.

Likewise, in reply to question “why this case against you and why the PWs deposed against you?” the appellant Ghulzar Ahmed replied as under:- “I have falsely involved in this case being friend of Muhammad Aslam accused. Furthermore I rely upon the statement of my co-accused Muhammad Aslam made in response to the same question”.

8.After conclusion of the trial, learned trial court convicted the present appellants Muhammad Aslam and Ghuzar Ahmed with above stated sentences through judgment dated 10.02.2011. Hence this appeal.

9.Learned counsel for the appellants contended that:-

(i)the judgment of the trial court dated 10.02.2011 is against law and facts on the file and is liable to be set-aside.

(ii)that the prosecution has failed to prove its case against the present appellants as there are many major discrepancies in the statements of the PWs further there is conflict between ocular evidence and medical evidence and the learned trial court has convicted the appellants on the basis of surmises and conjectures;

(iii)it is contended that the impugned judgment of the trial court is not maintainable in the eyes of law;

Criminal Appeal No. 65 of 2011 Appeal No. 393-2010

(iv)lastly submitted that appeal may be accepted and the judgement of the trial court dated 10.02.2011 may kindly be set aside and appellants may be acquitted.

10.On the other hand, learned DPG assisted by the learned counsel for the complainant has vehemently opposed the appeal and requested for dismissal of the same and submitted that:-

(i)prosecution has proved its case beyond any shadow of doubt against the appellants with solid evidence and prayed for the dismissal of the present appeal.

11.We have heard the learned counsel for the parties and perused the record.

12.The detail of prosecution case as mentioned in FIR Ex.PC/1 recorded on the written application Ex.PC of Muhammad Abbas complainant PW-3 has already been given in paragraph No. 2 of this judgement, therefore, there is no need to repeat the same.

13.According to FIR Ex.PC/1, occurrence took place on 15.10.2010 at about 11/12:00 p.m (night) whereas FIR was registered on 16.10.2010 at about 06:30 am on the written application of Muhammad Abbas PW-3 complainant real brother of Ali Ahmed deceased.

14.The distance between the place of occurrence (area of Chak No.428/6R) and police station Faqirwali is 14-1/2 Km. Further we have perused written application Ex.PC moved by Muhammad Abbas PW-3 for registration of the FIR Ex.PC/1 where no date or time of writing of the application or moving of the application to SHO police station Faqirwali is mentioned. Further, no endorsement of the concerned police officer is present on the bottom of the application Ex.PC stated above, rather, we found thumb impression on the bottom of FIR Ex.PC/1 contrary to the practice as in column No.2 of the FIR Ex.PC/1, it is written that the FIR was being lodged on the written application Ex.PC of Muhammad Abbas complainant/PW-3.

15.In view of the above, it is concluded that FIR Ex.PC/1 was lodged on 16.10.2010 at 06:30 am with

Criminal Appeal No. 65 of 2011 Appeal No. 393-2010

unexplained delay of about six hours from time of occurrence i.e. 15.10.2010 at about 11/12:00 pm (night) which delay in the circumstances and facts of the instant case casts serious doubt in the prosecution story and affect adversely to the prosecution. The delay in the instant case has great significance and it can be attributed to consultation, taking instructions and calculatedly preparing the report keeping the names of the accused open for roping in such persons whom ultimately prosecution may wish to implicate. Reliance is palced on case titled Mehmood Ahmad and 3 others Vs. The state and another (1995 SCMR 127) in which Hon”ble Supreme Court of Pakistan has observed at page 131 as under: - “Although, in some circumstances a delay of two hours may not be of much importance, yet in the facts and circumstances of this particular case as they have happened, the delay has great significance. It can be attributed to consultation, taking instructions and calculatedly preparing report keeping the names of accused open for roping in such persons whom ultimately prosecution may wish to implicate”.

16.Ex.PF is postmortem report pertaining to Ali Ahmed deceased according to which postmortem examination was conducted on the dead body of Ali Ahmed deceased by Doctor Muhammad Aslam Tahir PW-6 on 16.10.2010 at about 12:15 pm (noon) with unexplained delay of 12 hours from the date of occurrence i.e. 15.10.2010 at 11/12:00 pm (night) and Doctor Muhammad Aslam Tahir PW-6 admitted in cross- examination that injuries statement (Ex.PG) and inquest report (Ex.PH) do not bear his signatures which itself creates doubt in the prosecution story and postmortem examination had been conducted on the dead body of Ali Ahmed deceased with a noticeable delay which 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 the postmortem examination of the dead body conducted. Reliance is palced on case titled Irshad Ahmed Vs. The State (2011 SCMR 1190) in which

Criminal Appeal No. 65 of 2011 Appeal No. 393-2010

Hon”ble Supreme Court of Pakistan has observed at page 1193 as under: - “We have further observed that the postmortem examination of the dead body 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 postmortem examination of the dead body conducted”.

17.Motive of the occurrence as given by Muhammad Abbas complainant PW-3 is that Mst. Shamim Akhtar (given up PW) mother of Muhammad Aslam appellant had obtained divorce from his father and contracted second Nikkah with Ali Ahmed deceased and due to this grudge Muhammad Aslam present appellant alongwith Gulzar Ahmed appellant, Noman and Asif (since declared innocent) committed the murder of his brother Ali Ahmed deceased. Absolutely, no date, month or year of divorce is mentioned by Abbas complainant PW-3 in his written application Ex.PC as well in his statement before the trial court. Likewise, he did not mention when Mst. Shamim Akhter mother of Muhammad Aslam present appellant contracted second Nikkah with the deceased Ali Ahmed. On the other hand, Muhammad Aslam present appellant in answer to question No.8 specifically stated that he had no motive to commit the murder of deceased as he was step-father of him and he was also living with his mother and step-father in the same house. During the trial, Mst. Shamim Akther had been given up being won over by the prosecution and there is no other evidence regarding motive given by prosecution.

18.In view of the above, it is our confirmed opinion that prosecution could not prove the motive story stated above against the present appellants, so evidence of motive furnished by Muhammad Abbas PW-3 without any corroboration is hereby disbelieved.

19.Haji Mumtaz Ahmed PW-10 stated that on 06.11.2010 he joined the investigation of this case with Abdul Latif SI/I.O of this case PW-9 and during the interrogation Gulzar Ahmed disclosed and led to the

Criminal Appeal No. 65 of 2011 Appeal No. 393-2010

recovery of “Toki” P-4 from his house which was taken into possession through recovery memo Ex.PK and on the same day Muhammad Aslam appellant during interrogation disclosed and led to the recovery of “Toki” Ex.P5 which was taken into possession through recovery memo Ex.PL attested by him. This PW-10 Haji Mumtaz Ahmed admittedly has not stated that “Toki” P- 4 and P-5 were blood stained and further he has not stated that from where Muhammad Aslam present appellant got recovered “Toki” P-5.

20.We have also perused recovery memo Ex.PL pertaining to “Toki” P-5 allegedly recovered on the pointation of Muhammad Aslam present appellant and found as under: -

21.In view of the above, “Toki” P-5 was not blood stained. Further, recovery memo Ex.PK pertaining to “Toki” P-4 allegedly recovered on the pointation of Gulzar Ahmed appellant has not been placed in paper book but we have perused the same from the record of the trial court available in the court today and found as under: -

22.It is nowhere mentioned in this recovery memo Ex.PK that “Toki” P-4 allegedly recovered on the pointation of Gulzar Ahmed appellant was blood stained. Further, Abdul Latif SI/I.O of this case PW-9 stated that on 06.11.2010 accused Gulzar Ahmed led to the recovery of “Toki” P-4 from his house situated in Chak No. 428/6R and took the same into possession through recovery memo Ex.PK attested by Haji Gulzar

Criminal Appeal No. 65 of 2011 Appeal No. 393-2010

Ahmed PW-10 and on the same day Muhammad Aslam appellant led to the recovery of “Toki” P-5 from cattle shed situated in a house in Chak No. 428/6R and he made the same into sealed parcel and took into possession through recovery memo Ex.PL by Haji Mumtaz Ahmed PW-10. This witness Abdul Latif SI/I.O of this case PW-9 also did not state that both the “Tokies” P-4 and P-5 were blood stained.

23.In view of the above, positive reports of Chemical Examiner Ex.PO and Serologist Ex.PO/1 pertaining to “Toki” P-4 allegedly recovered on the pointation of Gulzar Ahmed and positive Chemical Examiner report Ex.PN and Serologist Ex.PN/1 pertaining to “Toki” P-5 allegedly recovered on the pointation of Muhammad Aslam appellant are the result of concoction and are not believable which are contrary to the recovery memos Ex.PK and Ex.PL pertaining to “Tokies” P-4 and P-5 and the statements of Abdul Latif SI/I.O of this case PW-9 and Haji Mumtaz Ahmed PW-10. Even otherwise, Muhammad Abbas complainant PW-3 stated in his written application Ex.PC that Gulzar Ahmed and Muhammad Aslam had inflicted injuries to Ali Ahmed deceased with hatchets and not with “Tokies”.

24.Muhammad Abbas complainant PW-3 and Khalid Javed PW-4 both claim themselves as eye witnesses of the occurrence. Abbas is real brother of Ali Ahmed deceased whereas Khalid Javed PW-4 is brother-in-law of Muhammad Abbas complainant PW-3. Muhammad Abbas PW-3 stated in his written application Ex.PC moved by him for registration of the FIR Ex.PC/1 that on 16.10.2010 on the night of occurrence his brother Ali Ahmed went to the house of Muhammad Arif Lohar to see him as he was ill and did not return for considerable time and he became worried whereas while appearing before the trial court Muhammad Abbas PW-3 while making dishonest improvement stated that about three months ago from the date of recording of his statement before the trial court i.e. 19.01.2011 at about evening time his brother Ali Ahmed deceased went to the house of Muhammad Arif Lohar to

Criminal Appeal No. 65 of 2011 Appeal No. 393-2010

visit him as he was ailing but he did not return for a considerable time. Muhammad Abbas complainant PW- 3 did not mention the time of leaving his house in the application Ex.PC as well as in his statement before the trial court while appearing as PW-3 for the search of Ali Ahmed deceased.

25.Further Muhammad Abbas complainant PW-3 stated in his application Ex.PC that Muhammad Noman and Muhammad Asif (since declared innocent) also gave “Toki” blows to Ali Ahmed deceased and during the cross-examination, he stated that a “Punchayat” was convened regarding the injured Noman and Muhammad Asif accused (since declared innocent) in which they had established their innocence and the same was accepted by them. Abdul Latif SI/I.O of this case PW-9 stated that during investigation, Muhammad Noman and Muhammad Asif (since declared innocent) were found innocent during his investigation and complainant (Muhammad Abbas PW-3) had accepted their innocence and tendered an affidavit in this respect. He further stated in cross-examination that on 07.11.2010 complainant (Muhammad Abbas PW-3) made a supplementary statement before him and stated that at the time of recording of the FIR, he was worried and he wrongly mentioned two unknown persons as accused. During the investigation, Muhammad Abbas complainant PW-3 has exonerated Noman and Muhammad Asif accused who were nominated in the FIR Ex.PC/1 by him with specific role of giving “Tokies” blow to Ali Ahmed deceased and further complainant Muhammad Abbas PW-3 got excluded two unknown accused mentioned in the FIR by him through his supplementary statement recorded on 07.11.2010.

26.The above stated facts have created serious doubt in the prosecution story and the credibility of witnesses Muhammad Abbas complainant PW-3 and Khalid Javed PW-4 have become doubtful.

26.Muhammad Abbas PW-3 and Khalid Javed PW-4 are not only closely related to Ali Ahmed deceased as stated above but they were also chance witnesses. The

Criminal Appeal No. 65 of 2011 Appeal No. 393-2010

occurrence in this case had taken place far away from the houses of the said witnesses at the odd hours of the night and they had statedly seen the occurrence when they were in search of the deceased Ali Ahmed.

27.We have found it to be quite strange that if the appellants had to murder the deceased Ali Ahmed then they did not have to wait for the arrival of the said witnesses for starting infliction of injuries upon the deceased with Tokies. It is also noticeable that despite their claimed presence at the scene of occurrence at the relevant time, the said eye witnesses alongwith Zulifqar (given up PW) had not tried to stop the appellants from inflicting injuries upon the deceased especially when the appellants were not armed with any firearm to ward the said witnesses off or to keep them away. Reliance is palced on case titled Irshad Ahmed Vs. The State (2011 SCMR 1190).

28.The mere fact that a witness is closely related to the accused or deceased or he is not related to either party, is not a sole criteria to judge his independence or to accept or reject his testimony rather the true test is whether the evidence of a witness is probable and consistent with the circumstances of the case or not. In the present case, no other reliable evidence was brought in support of the allegation of murder against the present appellants except the statements of Muhammad Abbas PW-3 and Khalid Javed PW-4 which being mudded with exaggeration and doubts would not be considered of the standard to be given much credence and being not confidence inspiring would not be blindly relied upon to hold the accused guilty of the charge of murder.

29.For the foregoing reasons, the evidence of Muhammad Abbas PW-3 and Khalid Javed PW-4 is not reliable and same is hereby disbelieved.

30.Medical evidence may confirm the ocular evidence with regard to the seat of the injury, nature of the injury, kind of weapon used in the occurrence but it would not connect the accused with the commission of crime”. Reliance is placed on case tilted Altaf Hussain

Criminal Appeal No. 65 of 2011 Appeal No. 393-2010

and others V. Fakhar Hussain and others (PLJ 2008 SC 687) in which Hon”ble Supreme Court of Pakistan has observed at page 689 as under: - “It is also settled law that medical evidence may confirm the ocular evidence with regard to the seat of the injury, nature of the injury, kind of weapon used in the occurrence but it would not connect the accused with the commission of crime”

31.From the facts and circumstances narrated above, we are persuaded to hold that prosecution has badly failed to bring home guilt of the appellants to the hilt and the learned trial court was not justified in convicting them while basing upon untrustworthy/uncorroborated evidence deposed by interested witnesses which even otherwise is full of material contradictions especially unreliable story deposed by Muhammad Abbas complainant PW-3 and Khalid Javed PW-4. Resultantly, salutary principle of benefit of doubt is extended in favour of the appellants. The Criminal appeal No.65 of 2011 filed by Muhammad Aslam and Gulzar Ahmed present appellants is accepted and convictions and sentences awarded by the learned trial court through judgment dated 10.02.2011 are set-aside and the appellants are ordered to be acquitted of the charge in case FIR No. 481 dated 16.10.2010 under section 302/34 PPC police station, Faqirwali Tehsil Haroonabad District Bahawalnagar. They are directed to be released forthwith if not required in any other case. Murder Reference No.05 of 2011 is answered in NEGATIVE and death sentences of Muhammad Aslam and Gulzar Ahmed present appellants are NOT CONFIRMED.

(James Joseph) (Sadaqat Ali Khan) Judge Judge

Approved for reporting Irfan