Allah Nawaz vs State

CJDA 38

JUDGMENT SHEET

LAHORE HIGH COURT, BAHAWALPUR BENCH,

BAHAWALPUR

Criminal Appeal No. 434 of 2010 (Allah Nawaz Vs. The State)

(M.R. NO. 07 of 2011)

Date of hearing: 03.07.2014 Appellants by: Mehar Ahmed Sher Kathia, Advocate.

Complainant by: Mr. Muhammad Bilal Bhatti, Advocate.

State by: Ch. Asghar Ali Gill, DPG

Sadaqat Ali Khan, J.: This single judgment shall dispose of Criminal Appeal No. 434 of 2010 filed by Allah Nawaz present appellant and Murder Reference No.07 of 2011 sent by the trial court for confirmation of the death sentence of appellant Allah Nawaz alias kala or otherwise as both matters have arisen out of the same judgment dated 29.11.2010 passed by learned Additional Sessions Judge, Ahmedpur East, district Bahawalpur according to which the present appellant was convicted and sentenced as under:- “Allah Nawaz was convicted under section 302(b) PPC and sentenced to death for committing Qatl-i-Amd of Munir 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.

in case FIR No. 74 dated 24.03.2008 under section 302/324 PPC police station, Sadar Ahmedpur East District Bahawalpur.

2.The facts of the case has been stated by Hazoor Bakhsh complainant (PW-1) in his statement before the trial court and same statement is hereby reproduced for narration of the facts: - “About one year 3 months ago at about 08:00 p.m. my son and accused Allah Nawaz @ Kala were quarrelling. When I proceeded towards them, Kala made Dagger blow to my son at belly. On seeing me he ran away. The occurrence took place in the house of Imam Bakhsh. The

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house of Imam Bakhsh and mine is one and the same. Imam Bakhsh is my brother-in-law. Sajjad and Ahmad Yar also came on the spot. I checked my son. His belly was cut off, intestines were out of belly. Blood was oozing. I put the intestines in his belly. The witnesses also saw the incident and condition of my son. The witnesses tried to catch the accused but he ran away. We brought my son on the car of Sajjad Ahmad at THQ Hospital Ahmadpur East where he was referred to BVH, Bahawalpur where Thanedar came and recorded my statement. He got my thumb impression on my statement, the same is Exh.PA. The motive behind the occurrence is that there was some dispute of land between father of accused and me. Murder of my son has been committed by the accused in that regard. On my statement Exh.PA, FIR Exh.PA/1 was registered”.

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 against present appellant Allah Nawaz under sections 302/324 PPC to which he pleaded not guilty and prosecution evidence was summoned.

5.Prosecution produced Hazoor Bakhsh complainant as PW-1, Sajjad Ahmed PW-2, Muhammad Akram PW-3, Nazeer Ahmed PW-4, Dr. Muhammad Arif Ghori, PW-5, Dr. Muhammad Namdar Qasim, MCPS Trainee PW-6, Matloob Ahmed, Inspector PW-7, Muhammad Siddique Constable PW-8, Shamas-ud-Din ASI PW-9, Muhammad Iqbal ASI PW-10, Muhammad Ismaeel H.C PW-11, Muhammad Ashraf ASI PW-12, Haroon-ur-Rasheed Patwari Halqa PW-13, Riaz Ahmad Constable PW-14 whereas PW Muhammad Ahmad, Muhammad Altaf, Allah Bakhsh and Irshad Haider Bukhari, Inspector were given up by the prosecution being unnecessary and tendered in evidence statement of Hazoor Bakhsh Ex.PA, FIR Ex.PA/1, recovery memo of blood stained Earth Ex.PB, recovery memo of Chappal Ex.PC, recovery memo of Cycle Ex.PD, recovery

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memo of last worn clothes of the deceased Ex.PE, postmortem report Ex.PF, injury plan Ex.PH, position of dead body Ex.PK, inquest repot Ex.PM, recovery memo of Dagger Ex.PN, report of Chemical Examiner Ex.PS, report of Serologist Ex.PT, site plans Ex.PR and Ex.PJ and closed the prosecution evidence.

6.Medical evidence was furnished by Dr. Muhammad Anwar Qasim, MCPS Trainee BV Hospital, Bahawalpur PW-6 who stated that on 25.03.2008 he conducted postmortem examination on the dead body of Munir Ahmed deceased and observed as under:- “Symptoms observed before death. Patient was examined by Dr. Arif Ghori on 24.03.2008. MLC 123/08 was issued. He then presented with incised wound on the midline measuring 10x5 cm. Abdominal viscera was out.

Information furnished by the Police. As in police papers.

External appearance.

A deadbody of healthy male with moderate physique lying supine on the postmortem table. Eyes and mouth are closed with pallor look. Wearing black sting in the neck and blood stained shalwar. A longitudinal central abdominal stitched wound is present with 12 stitched about 12 inches long. Another wound with tree stitches on the left upper outer quadrant of abdomen about 2.5 inches long. Scalp, skull and vertebrae. Healthy.

Membrances-Brain, Spinal cord. Healthy. Thorax.

Walls, ribs and cartilages. Healthy. Pleura. Healthy.

Larynx, trachea, right and left lungs, Paricardium and hear. All healthy. Blood vessels. Healthy but in abdomen inferior vena cava and potal vein damaged. Abdomen.

Walls. Damaged. Incised at the stitched wound site. Peritoneum. Torn, filled with blood.

Mouth, Pharynx, Oesophagus, and Diaphragm. Healthy.

Stomach and its contents. Perforated anterior and posterior wall.

Pancreas. Healthy.

Small intestine and their contents. Perforated.

Large intestine and their contents. Healthy.

Liver. Congested.

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Spleen, kidneys, bladder, organs of generation external and internal, all are healthy.

Muscles, Bone and Joints.

Already described.

Remarks by Medical Officer.

After postmortem of the deadbody it is concluded that death occurred due to excessive loss of blood in the peritoneal cavity due to damage to inferior vena cava and potal vein leading to cardiac arrest. Central abdominal injury seems to be rather than upper outer quadrant on the left side seen to leading to such damage. This type of injury is alone sufficient to cause death in ordinary course of nature. Probable time that elapsed:-

(a)between injury and death.

(b)between death and postmortem Less than 6 hours”.

7.On the other hand, statement of present appellant Allah Nawaz alias Kala was recorded under section 342 Cr.P.C who refuted the allegations so leveled against him and did not opt to appear as a witness under section 340(2) Cr.P.C and produce in defence Muhammad Yousaf DW-1 and Riaz Ahmed DW-2 and in reply to questions No. 12 & 13 “why the PWs deposed against you and why this case against you?” the appellant Allah Nawaz alias Kala replied as under:- “They have deposed falsely.

Nasrin Mai is my wife and niece of the complainant Nasrin contracted love marriage with me. Complainant and his relatives resisted this marriage because I do not belong their brothery. After marriage complainant party demanded for divorce. I refused to do so. Hence, I have been falsely involved in this case”.

8.After conclusion of the trial, learned trial court convicted the present appellant Allah Nawaz alias Kala with above stated sentence through judgment dated 29.11.2010 Hence this appeal.

9.Learned counsel for the appellant contended that:-

(i)the judgment of the trial court dated 29.11.2010 is against law and facts on the file and is liable to be set-aside.

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(ii)that the prosecution has failed to prove its case against the present appellant 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 appellant 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;

(iv)lastly submitted that appeal may be accepted and the judgement of the trial court dated 29.11.2010 may kindly be set aside and appellant 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 appellant 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.PA/1 recorded on the statement of Hazoor Bakhsh complainant PW-1 has already been given in paragraph No. 2 of this judgement, therefore, there is no need to repeat the same.

13.According the FIR, occurrence took place on 24.3.2008 at 08:30 pm whereas FIR was registered on 24.3.2008 at 11:40 pm on the statement Ex.PA of Hazoor Bakhsh complainant PW-1 real father of Munir Ahmed deceased.

14.The motive of the occurrence given by Hazoor Bakhsh complainant PW-1 is that there was some dispute of land between father of accused and him and murder of his son has been committed by accused in that regard. In cross-examination, he stated that land in

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dispute is situated in Mouza ‘Tibi Arbi’. The dispute of land was of one Acre where he made statement in favour of father of accused and affixed thumb mark on the document but his son was killed.

15.Hazoor Bakhsh complainant PW-1 did not produce any document regarding litigation of landed property and also has not produced any other independent witenss to corroborate the motive story narrated by Hazoor Bakhsh PW-1 whereas he himself stated in his statement Ex.PA made by him for registration of the FIR Ex.PA/1 on the day of occurrence i.e. 24.3.2008 as under: -

16.In view of the above, it is crystal clear that the motive (dispute of land) given by Hazoor Bakhsh complainant P W-1 stated above was not actual motive and that was the reason that complainant PW-1 could not produce any documentary evidence regarding dispute of land as stated by him and he also has failed to produce any witness in this regard to corroborate his statement regarding the motive story (dispute of land). It is safely concluded that motive given by Hazoor Bakhsh complainant PW-1 is not proved and the evidence of Hazoor Bakhsh complainant PW-1 regarding motive story is hereby disbelieved. Reliance is palced on case Ghulam Mohy-ud-Din alias Haji Babu and others Vs. The State (2014 SCMR 1034) in which Hon’ble Supreme Court of Pakistan has held at page 1044 as under: - “In the present case a specific motive was set up in the FIR at the time of reporting the crime by the complainant. He had alleged that there was a dispute between the parties over a ‘Khokha’ (wooden stall), however, no independent corroboratory

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evidence on this point was furnished. Thus, the version, repeating the same stance at the trial, without any independent corroboratory evidence in this respect, would have no legal worth and judicial efficacy. It has been claimed that the dispute had led to civil litigation over the ‘Khokha’ but no document form judicial record was furnished to the trial Court to show even to a little extent that indeed the dispute over a ‘Khokha’ was a burning issue between the parties and they had already been battling for the same in the Civil Court. Thus, the motive part of the incident has remained absolutely unproved”.

17.Muhammad Akram PW-3 stated that after 15/20 days of the occurrence, present appellant Allah Nawaz alias Kala during interrogation disclosed and led to the recovery of Dagger P-5 (p3) from the cluster of date trees at a distance of one ‘Bigha’ from the place of occurrence and same was taken into possession through recovery memo Ex.PN attested by him.

18.We have perused recovery memo Ex.PN where it is not mentioned that Dagger P-5(P3) was blood stained at the time of its recovery and further Ex.PS is Chemical Examiner report regarding blood stained earth and no other Chemical Examiner report has been tendered by the prosecution in documentary evidence regarding blood stained Dagger and report of Serologist Ex.PT shows only Knife and not the Dagger, even otherwise, when from the day first Dagger P-5(P3) allegedly recovered on the pointation of the present appellant through recovery memo Ex.PN was not blood stained, the positive reports of Chemical Examiner and Serologist in this regard are not reliable and same are disbelieved. Recovery of Dagger P-5(P3) from an open place not in exclusive possession of the appellant accessable to everyone is not believable and same is disbelieved.

19.Hazoor Bakhsh PW-1 and Sajjad Ahmed PW-2 claim themselves as eye witnesses of the occurrence and stated that about one year and three months ago, from the date of recording of their statements before the trial court i.e. 02.07.2009 at about 08:00 pm, Munir

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Ahmed deceased and present appellant Allah Nawaz alias Kala were quarrelling and they proceeded towards them, Allah Nawaz alias Kala gave a Dagger blow to his son which landed on his belly and the occurrence took place in the house of Imam Bakhsh real brother in law of Hazoor Bakhsh complainant PW-1 and father-in-law of present appellant . They further stated that they tried to catch the accused but he ran away. Hazoor Bakhsh complainant PW-1 stated in examination-in-chief that his house and house of Imam Bakhsh where the occurrence took place is one and the same.

20.In view of the above, the presence of above stated eye witnesses is quite natural at the spot at the relevant time. Both the above mentioned eye witnesses were cross-examined at length but their evidence could not be shaken during the process of cross-examination. They corroborated each other on all the material aspects of the case. Their evidence is trust worthy and straight forward and there is absolutely no mis-identity of the accused because present appellant Allah Nawaz alias Kala is son in law of Imam Bakhsh where the occurrence took place and that Imam Bakhsh is brother- in-law of Hazoor Bakhsh complainant PW-1. There is another aspect of the case that the complainant Hazoor Bakhsh PW-1 is real father of Munir Ahmed deceased and it is a case of single accused. It is highly improbable that he would let off the real culprits and will falsely implicate the present appellant for the murder of his son Munir Ahmed. Substitution in such like cases is a rare phenomena.

21.The medical evidence was furnished by Doctor Muhammad Arif Ghori PW-5 who had examined Munir Ahmed deceased in injured condition on 24.3.2008 and observed one incised wound on abdomen on mid line below umbilical region measuring 10 cm x 5 cm approximately. Intestinal portion of abdominal visceras were coming out from the wound and same was noted by Doctor Muhammad Namdar Qasim PW-6 at the time of postmortem examination conducted by him on

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25.3.2009 on the body of Munir Ahmed deceased after his death and further Doctor Muhammad Namdar Qasim PW-6 stated that this type of injury was alone sufficient to cause death in ordinary course of nature which was anti-mortem injury.

22.We are, therefore, of the view that medical evidence furnished by Doctor Muhammad Arif Ghori PW-5 and Doctor Muhammad Namdar Qasim PW-6 has fully supported the above mentioned ocular account furnished by Hazoor Bakhsh PW-1 and Sajjad Ahmed

PW-2.

23.On the other hand, Allah Nawaz alias Kala present appellant produced Muhammad Yousaf as DW- 1 and Riaz Ahmed as DW-2 in his defence by taking plea of alibi and both the above stated defence witnesses stated that at the time of occurrence accused Allah Nawaz alias Kala was with them and further stated that they went to the police station to give defence evidence in favour of the appellant but the police did not record their statements.

24.Present appellant Allah Nawaz alias kala himself did not appear under section 340(2) Cr.P.C and also did not take the plea of alibi at initial stage during the investigation after his arrest in his first version. The defence witnesses who were not appeared during the investigation in support of the version of the accused, their evidence during the trial after a long time would not be believable.

25.In view of the above, the defence plea of present appellant Allah Nawaz alias Kala is not acceptable and same is discarded and evidence of Yousaf DW-1 and Riaz Ahmed DW-2 is hereby disbelieved.

26.Although we have disbelieved the prosecution evidence qua the motive in para No.16 and recovery of Dagger P-5(P3) in para No.18 of this judgment and if the prosecution evidence qua the motive and aforementioned recovery is excluded from consideration even then there is sufficient incriminating evidence available on the record to prove the prosecution case against Allah Nawaz alias Kala present appellant as

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discussed earlier the prosecution case was proved against Allah Nawaz alias Kala present appellant through the evidence of eye witnesses namely Hazoor Bakhsh PW-1 and Sajjad Ahmed PW-2 supported by medical evidence furnished by Doctor Muhammad Arif Ghori PW-5 and Doctor Muhammad Namdar Qasim PW-

6.Therefore, we are of the view that prosecution has proved its case against Allah Nawaz alias Kala present appellant beyond any shadow of doubt.

27.Now coming to the quantum of sentence, we have noted some mitigating circumstances in favour of the appellant. Firstly, we have disbelieved the recovery of Dagger P-5(P3) in the preceding para No.18 of this judgment. Secondly, we have also disbelieved the prosecution evidence qua the motive due to the reason noted in para No.16 of this judgment. Thirdly, complainant Hazoor Bakhsh PW-1 himself stated in FIR as under: -

28.In view of the above just before the actual occurrence of murder of Munir Ahmed deceased, a quarrel had taken place between deceased Munir Ahmed and present appellant Allah Nawaz alias Kala and at the spur of the moment without any previous motive or premeditation in the heat of passion only single Dagger blow was given by present appellant Allah Nawaz alias Kala to Munir Ahmed deceased which landed on his belly without any repetition.

29.In view of the above, death sentence awarded by the learned trial court to the appellant is quite harsh. It is well recognized principle by now that the accused is entitled to the benefit of doubt as an extenuating circumstance while deciding his question of sentence as well. In this regard we respectfully refer the case of Meer Muhammad alias Meero Vs. The State

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(2009 SCMR 1188) wherein the Hon’ble Supreme Court of Pakistan has held as under: - “it will not be out of place to emphasize that in criminal cases the question of quantum of sentence requires utmost care and caution on the part of the Courts, as such decisions restrict the life and liberties of the people. Indeed the accused persons are also entitled to extenuating benefit of doubt to the extent of quantum of sentence.

28.Same view has been reiterated by the Supreme Court of Pakistan in case Ghulam Mohy-ud-Din alias Haji Babu and others Vs. The State (2014 SCMR 1034) and further reliance is placed on case Latif Ullah Vs. The State (2007 SCMR 994).

30.For the foregoing reasons, the conviction of Allah Nawaz appellant under section 302(b) PPC awarded by the learned trial court is maintained and his sentence is altered from death to imprisonment for life. The compensation awarded by the trial court and sentence in default thereof is maintained. The benefit of section 382-B Cr.P.C is also given to the appellant Allah Nawaz alias Kala. Consequently, with the above said modifications in the sentence of Allah Nawaz alias Kala appellant, Criminal Appeal No. 434 of 2010 filed by Allah Nawaz alias Kala present appellant is hereby dismissed. Murder Reference No.07 of 2011 is answered in NEGATIVE and death sentence of Allah Nawaz alias Kala present appellant is NOT

CONFIRMED.

(James Joseph) (Sadaqat Ali Khan) Judge Judge

Approved for reporting Irfan