State vs Shahzaib@ Zai Bu S/O Mirza

JUDGMENT SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Murder Reference No.84 of 2009 Criminal Appeal No.124 of 2009.

(Shahzaib alias Zaibu Versus The State)

JUDGMENT

Date of Hearing. 03.07.2014

APPELLANTS Mr. Allah Rakha, Advocate. BY: - Mr. Zafar Hussain Chaudhry, Defence Counsel at State expense.

STATE BY: - Ch. Muhammad Mustafa, D.P.G. Complainant By: Malik Qamar Masood Khokhar, Advocate.

Syed Shahbaz Ali Rizvi, J:- The appellants namely Shahzaib alias Zaibu and Ijaz alias Jajji were sent to court for trial in a case FIR No.642 dated 28.08.2007 under sections 302/396/511 PPC, registered at P.S Bhikhi, Sheikhupura and were convicted by learned Addl. Sessions Judge, Sheikhupura vide impugned judgment dated 26.01.2009 and sentenced as follows: - Appellant Shahzaib alias Zaibu: -

i. Death u/s 302 (b) PPC for committing murder of Asghar Ali (deceased) with compensation to the tune of Rs.50,000/- u/s 544-A, Cr.P.C to be paid to the legal heirs of

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the deceased and in default thereof, to further undergo six months S.I.

The appellant was ordered to be hanged by his neck till his death.

ii. R.I for five years u/s 396/511 PPC with fine to the tune of Rs.10,000/- and in default thereof, to further undergo six months S.I.

Appellant Ijaz alias Jajja: -

i. R.I for fourteen years u/s 302 (c) PPC for committing murder of Asghar Ali (deceased) with compensation to the tune of Rs.50,000/- u/s 544-A, Cr.P.C to be paid to the legal heirs of the deceased and in default thereof, to further undergo six months S.I. The appellant was ordered to be hanged by his neck till his death.

ii. Imprisonment for five years u/s 396/511 PPC with fine to the tune of Rs.10,000/- and in default thereof, to further undergo six months S.I.

Both the substantive sentences awarded to Ijaz alias Jajji appellant were ordered to run concurrently and benefit of section 382-B, Cr.P.C was also extended to him.

2.This single judgment will dispose of the above mentioned Murder Reference No.84 of 2009 along with criminal appeal No.124 of 2009 filed by the appellants.

3.The occurrence of murder of Asghar Ali was reported to the police by Muhammad Ashraf, the complainant (PW.7), through his written application Ex.PH, wherein he stated that on 27.8.2007 at 3:00

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p.m. when he was grazing his cattle heads and his brother Asghar Ali (deceased) was grazing his goats, appellants Shahzaib alias Zaibu and Ijaz, both armed with hatchets, Asif (since P.O) armed with Daatar along with three unknown persons who were also armed with hatchets and firearms, tried to snatch forcibly the goats, on which his brother Asghar Ali resisted. The appellant Shahzaib, in order to retaliate such resistance, attacked Asghar Ali and inflicted blow with the hatchet on his head, second blow was caused to him by Ijaz alias Jajji, which landed on the back waist of the victim. Asif accused inflicted Daatar blow on the left arm of deceased whereas Ijaz accused repeated the blow with his weapon, landing on the right arm. Asif accused was alleged to have caused two successive blows on the arm of deceased.

Unknown accused persons caused injuries to the victim with their respective weapons. The victim Asghar Ali succumbed to the injuries and died at the spot. In the meanwhile Mustafa and Khadim Hussain (PW.8) present in the nearby fields, attracted to the spot whereas the appellants and co accused fled away.

4.After registration of formal FIR Ex.PH/1, the case was investigated by Muhammad Shafi SI/I.O (PW.10) who visited the place of occurrence, secured the dead body of Asghar Ali deceased, prepared inquest report Ex.PE, injury statement Ex.PD, application for post mortem examination Ex.PC, secured blood stained earth vide memo

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Ex.PI, drew up rough site plan of the place of occurrence Ex.PJ; took into possession the last worn clothes of the deceased shirt P.1 and Chadar P.2, both blood stained, vide memo Ex.PA; recorded statements of the PWs u/s 161 Cr.P.C; got prepared site plan of the place of occurrence Ex.PF and PF/1 through Rana Imdad Hussain, Patwari (PW.4); on 17.9.2007 arrested the appellants, recovered hatchet P.3 from Q.B.Link Canal on pointing out by Shahzaib and took the same into possession vide memo Ex.PF; recovered hatchet P.4 pointed by Ijaz alias Jajji from cluster of reeds, secured through Ex.PG; on 22.9.2007 got sent the appellants to judicial lock up.

5.Learned trial court after observing all the pre-trial codal formalities, indicted the appellants to which they pleaded not guilty and claimed to be tried. The prosecution was asked to lead its evidence, which produced as many as 10 PWs to prove its case.

6.Dr. Afzaal Ahmad, Medical Officer, DHQ Hospital, Sheikhupura (PW-3) conducted post mortem examination on the dead body of Asghar Ali (deceased) on 28.08.2007 and observed following injury on his body:-

i. An incised wound 16 x 2 cm brain deep starting from top of nose fore head and extending to the back of head. ii. An incised wound 6 x 3 cm on outer part of left arm underlying bone fractured.

iii. An incised wound 7 x 3 cm on left fore arm on back underling radius bone fractured.

iv. An incised bone 2.5 x 01 cm left side of abdomen going deep.

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v. An incised bone 3 x 0.5 cm x muscle deep 3 cm from injury No.4.

vi. An abrasion 8 x 0.5 cm right side of abdomen. vii. An incised wound 6 x 2 cm lower back of abdomen x muscle deep.

viii. An incised wound 6 x 2 cm underlying back bone fracture on the lower back of chest.

REMARKS

The medical officer was of the opinion that all injuries especially injuries No.1,2,3,4 and 8 were sufficient to cause death of a person in ordinary course of nature. These injuries caused severe hemorrhage, leading to shock and cardio pulmonary arrest and severe brain injury.

Probable time between injuries and death was immediate and between death and post mortem was 24/30 hours. The doctor presented the post mortem report as Ex.PB along with pictorial diagram Ex.PB/1.

7.The prosecution tendered into evidence the reports of Chemical Examiner regarding earth Ex.PN, Serologist Ex.PN/1, reports of Chemical Examiner regarding hatchet of Ijaz Ex.PO, Serologist Ex.PO/1 and reports of Chemical Examiner regarding hatchet of Shahzaib Ex.PO and that of Serologist Ex.PQ/1, closed the prosecution evidence.

8.Thereafter, statements of the appellants were recorded u/s 342 Cr.P.C. wherein they negated the allegations and professed their innocence. In reply to the question as to why the case against them and why the PWs deposed against them, both the appellants maintained as under: -

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“The case is false and I have been maliciously enroped in this murder case. No independent witness has come forward to give evidence against me. All the prosecution witnesses examined in this murder case are closely related and come under the category of “interested witnesses” I hereby state that my implication in this murder case has been hatched with active connivance of Habib Ullah Bhatti, who contested election and due to politically rivalry this case has been manipulated against me. Moreover, one Yaseen Qureshi, with whom we had enmity of murder cases, has played active role in implicating him maliciously.”

The appellants neither opted to lead evidence in their defence nor did they appear as their own witness to make statement on oath in disproof of allegations leveled against them, u/s 340(2) Cr.P.C, however, the appellant Ijaz produced in his defence photo copies of application for medical examination Mark A and MLR as Mark B.

9.After conclusion of trial, the appellants were convicted and sentenced as mentioned above by the learned trial Court.

10.Learned counsel for the appellants has argued that the appellants are innocent and have falsely been involved by the complainant; that actually it was an unseen occurrence and the presence of the witnesses at the place of occurrence at the relevant time is quite unbelievable and not plausible keeping in view the facts and circumstances of the case;

that the witnesses are chance and interested witnesses; there are glaring contradictions between the ocular account and medical evidence; that the reports of Chemical Examiner and Serologist are absolutely not

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trustworthy being result of manipulation; that there was no motive to commit such occurrence; that the narration of occurrence is not believable; that the offence u/s 396/511 is neither attracted nor proved in this case; that there is an inordinate and unexplained delay of 10 hours in lodging the FIR as well as 24 to 30 hours in conducting the post mortem examination; that it is not the accused to prove his innocence but the prosecution has to stand on its own legs; that recovery of alleged crime weapon is planted one just to strengthen the prosecution case and the same is inconsequential and that the prosecution has miserably failed to perform its legal duty in proving the case beyond shadow of reasonable doubt and prayed for the acceptance of this appeal.

11.Conversely, learned Deputy Prosecutor General for the State, assisted by learned counsel for the complainant has vehemently opposed the contentions raised by learned counsel for the appellants and maintained that it is a daylight occurrence; presence of witnesses is natural; that the ocular account is in consonance with the medical evidence and minor discrepancies and contradictions are not fatal to the prosecution case, as the witnesses are illiterate persons and even otherwise minor discrepancies do occur with the passage of time; that there is no defence plea with the appellants to support their version and there are positive reports of Chemical Examiner and Serologist in

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support of prosecution version and though there are some flaws on the part of the prosecution yet those are not sufficient to affect the prosecution case adversely; that recovery of weapon of offence has been proved against the appellants and they are fully connected with the brutal murder of an innocent person therefore, do not deserve any leniency and the learned trial court has rightly convicted and sentenced the appellants, so the instant appeal merits dismissal.

12.Having heard the learned counsel for the appellant, the Deputy Prosecutor General, assisted by learned counsel for the complainant and gone through the record, we have observed that according to the prosecution, the occurrence of murder of deceased Asghar Ali was witnessed by the complainant/PW.7, real brother, Khadim Hussain PW.8, maternal cousin and Mustafa (given up PW) paternal cousin of the deceased but surprisingly the matter was reported to the police after the delay of about 10 hours, despite the fact that the Police Station Bhikki is situated at a distance of not more than six kilometers from the place of occurrence and even according to the complainant/PW.7, the time required to reach the said Police Station from the place of occurrence is within half an hour. He also admitted that both the places are connected with the mettle road and motorcycle-rickshaws ply on the road. Similarly, after the registration of FIR with the above mentioned delay, the delay of 24 to 30 hours in conducting post

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mortem examination on the dead body of the deceased further creates doubt qua the veracity of the prosecution stance about the presence of the witnesses at the place of occurrence at the relevant time. The perusal of post mortem report also reflects that the mouth of the deceased was semi-opened, which further strengthens the inference that the occurrence of murder was un-witnessed and the dead body remained lying unattended till the rigor mortis fully developed. It has become a common practice of police in our society that in cases of such like un-witnessed occurrence, the investigating officers, spend time in procuring the availability of the close relatives of the deceased and fabrication of prosecution story after preliminary inquiry and the consultation to avoid the hard work for digging out the actual culprits through the circumstantial evidence, especially the delay in post mortem examination of the dead bodies does occur because of the fact that the investigation officer usually remains busy in concoction of the prosecution story and preparation of police papers, necessary to be presented before the medical officer to start post mortem examination on the dead body and this practice has already been pointed out by the Hon’ble courts of this country. In this regard, reference can be made to the case of “Muhammad Riaz versus The State” (2009 P. Cr. LJ 1022 Lahore) wherein, this Court has observed as under: -

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“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 versus 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...”

Due to the above said observations made by us, we have perused, with the assistance of learned counsel for the parties, the testimony of ocular account of the occurrence, furnished by the prosecution through Muhammad Ashraf the complainant/PW.7 and Khadim Hussain PW.8, with utmost care and caution and have noted that according to the prosecution case, the accused persons came to the place of occurrence to rob or snatch the goats from the deceased but when he resisted, he was given blows with the hatchets and sickle (Daatar) by the appellants

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and co accused Asif (since P.O) at 3:00 p.m. which is day time.

Robbery or lifting of cattle is normally done in the night time to ensure the transportation of the cattle in the darkness and in the instant case the attempt to take the cattle by the accused being on foot from a cultivated and inhabited area in the broad daylight is not plausible, especially when the PWs are present at a distance of not more than hundred feet from the place of occurrence as is evident from the scaled site plan Ex.PF and the statement of Imdad Hussain, Patwari PW.4. The place of occurrence is the crop of millet which was, according to the Patwari PW.4 and PW.1 Tahir Hussain 1260/C, of the height of about 4 to 5 feet at the time of occurrence, while PW.7 and PW.8 have maintained that it was 1 1⁄2 to 2 1⁄2 feet in height and according to the eye witnesses, Asghar Ali (deceased) was there to graze his goats at the time of occurrence which is not believable as the cattle are not let free to graze in the growing crops rather they are kept away from the crops by the shepherd. So, the prosecution story that the incident took place at that place when the appellants and their co accused attempted to snatch the goats from the deceased in view of the witnesses is not convincing at all. It is also relevant to keep in view the fact that crop where the occurrence took place was not owned by the complainant or the deceased. The prosecution has not produced cogent evidence to prove the purpose of the deceased and the PWs for being available at

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the place of alleged occurrence. The reason given by the witnesses is prone to doubts when we notice the following facts.

The complainant PW.7 during cross examination admitted as under: -

I have no belongings near the place of occurrence nor in Dera Zafar Shah...These crops were not cultivated by me” While PW.10 the I.O of this case has also maintained that the complainant had no belongings near the place of occurrence. Similarly, PW.8 has made dishonest improvement in his statement to establish the reason for being available at the place of occurrence and in his examination in chief, he stated as under: -

“I and Mustafa were irrigating our field at Dera Zafar Shah.”

During cross examination this improvement was got confronted by the defence with Ex.DA wherein it was not so recorded, though he reiterated the same fact during further cross examination as under: - “The land being irrigated was under my ownership and ancestral property, and the crop existing thereon was cultivated by me...”

The defence suggested this witness as under: -

“It is correct that I am having no residence in village Dera Zafar Shah....It is incorrect that

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during investigation I failed to bring on record any proof of my occupying the land as I have indicated in my examination in chief”.

While on the other hand, the I.O PW.10 when asked in this context during cross examination, replied as under: - “There is neither land any in direction of the place of occurrence, belonging to Khadim Hussain PW nor any crop cultivated by said Khadim Hussain.”

In this view of the matter, we are of the opinion that both PW.7 and PW.8 could not establish the reason of their being available at the place of occurrence at the relevant time. Moreover, similar is the situation regarding the deceased and from the circumstances of the case, we have inferred that the story of presence of the deceased at the place of occurrence to graze the goats is also not true as none of both the eye witnesses could give the details of the goats during investigation as is evident from the statement of PW.10 the I.O as well as during their statement before the learned trial court. It is admitted fact that no stick or Charr was found available at the scene of occurrence by the I.O. Even the goats were not shown to the I.O.

The perusal of post mortem report Ex.PB reveals that the deceased who was a young man, having the age of 35/40 years, sustained eight injuries out of which, seven injuries were caused by

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sharp-edged weapon including the fatal injuries. The injuries on the left arm including forearm of the deceased, reflect that prior to sustaining fatal injuries, the deceased tried to save himself, which shows his struggle for survival but site inspection notes and the site plans Ex.PJ and Ex.PF do not reflect any signs of struggle at the alleged place of occurrence and even broken plants of the crop and blood stains on the plants at or around the place of incident were not noticed by the I.O as the prosecution case is silent in this regard. In our view, had that place been the place of murder of the deceased, there would have been stains of blood on the plants of millet crop around the place of occurrence because of oozing blood from the grievous injuries available on the person of the deceased. None of the witnesses has explained the injuries No.4 to 6, especially injury No.6 is an injury, not caused by sharp edged weapon and according to the medical officer PW.3, it could be caused through dragging. Similarly, injury No.4, which is incised wound going deep into the abdomen seems to be a stab wound. Both the witnesses are silent about injuries No.4 to 6. The ocular account is discrepant about the first blow of Ijaz appellant. Both the witnesses have also made dishonest improvements, duly got confronted by the defence. For example PW.7 has stated that Ijaz gave a hatchet blow on the head of the deceased, which was duly confronted with Ex.PH where the same blow by Ijaz was alleged on the back of

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chest of the deceased. This flagrant improvement is nothing but a dishonest improvement made by the complainant, which renders his veracity doubtful, because, when a witness makes improvements in his statement, it creates doubt regarding his credibility. All these material aspects of this case have led us to infer that the presence of both the eye witnesses Muhammad Ashraf PW.7 and Khadim Hussain PW.8 at the scene of incident at the relevant time is doubtful.

13.Our view regarding the ocular account further finds strength when we go through the medical evidence produced by the prosecution.

Injury No.2 and 3, reflected in post mortem report Ex.PB are available on the left arm of the deceased, assigned by the eye witnesses to Asif co accused (since P.O), allegedly caused by sickle (Daatar) while the fracture of underlying bone in both the injuries shows that both these injuries were caused by heavy sharp-edged weapon while the sickle is not a heavy sharp-edged weapon. Similarly, the size of injury No.1 also reflects that it was not caused by a hatchet as is maintained by the doctor that this injury could be caused with Bugda or Toka. Both the eye-witnesses PW.7 and PW.8 have maintained that Ijaz appellant caused a hatchet blow on the right arm of the deceased but according to post mortem report and statement of medical officer PW.3, no injury is available on the right arm of the deceased. According to the witnesses, first injury sustained by the deceased was injury No.1, reflected in the

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post mortem report on the head of the deceased and the deceased fell on the ground after sustaining all the injuries available on his body while according to the medical officer, after sustaining injury No.1, which starts from the top of the nose and ends at back of head, a man cannot stand. As discussed above, injuries No.4 to 6 and one out of injuries No.7 and 8, are not explained by the eye witnesses; hence we are convinced to hold that the ocular account is discrepant with the medical evidence, available on the file.

14.Recovery, allegedly made by both the appellants is also doubtful as firstly both the crime weapons have been allegedly recovered from the bush available on the thoroughfare, easily accessible to every one, secondly, the appellants kept the crime weapons, blood stained hatchets, without washing the blood from the blades, secure for their presentation to the I.O after a period of about twenty four days is otherwise not believable. Thirdly, according to the recovery memos Ex.PF and Ex.PG being blood stained is not mentioned but the reports of Chemical Examiner Ex.PO and Ex.PQ and reports of Forensic Science Laboratory Ex.PO/1 and Ex.PQ/1 reflect that both the hatchets were found stained with human blood while according to the verdict given by the Hon’ble Supreme Court, the supra reports are not trustworthy. Reliance is placed on “Basharat and another v. The State” reported as 1995 SCMR 1735 & “Muhammad Jamil v.

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Muhammad Akram and others” reported as 2009 SCMR 120. Even otherwise, when the direct evidence is disbelieved, the evidence of recovery, being corroboratory in nature, is of no consequence to the prosecution case.

15.The law, by now, is settled that the prosecution is to prove its case beyond any shadow of reasonable doubt against an accused person and it is also settled now that multiple doubts in the prosecution case are not required to record judgment of acquittal but a single reasonable doubt is sufficient to extend benefit of the same to the accused as a matter of right. In this regard, reliance is placed on the judgment passed in case titled “Mst. Shamshad v. The State” reported as 1998 SCMR 854, case titled “Waqar Ahmed v. Shaukat Ali and others” reported as 2006 SCMR 1139, case titled “Akhtar Ali and others v. The State” reported as 2008 SCMR 6 & case titled “Sher Bahadur and another v. The State” reported as 1972

SCMR 651.

In this case, we have come to an irresistible and unavoidable conclusion that the prosecution has miserably failed to prove its case beyond any shadow of doubt against the appellants while conviction can not be recorded on the basis of mere conjectures, surmises and the morality only. Strong evidence of an unimpeachable character is required to convict the accused but unfortunately this case lacks the same. Hence, extending benefit of doubt to the appellant, the instant

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Appeal No.124 of 2009 is allowed; conviction and sentence awarded to both the appellants is set aside and they are acquitted of all the charges. The appellants are in jail; shall be released forthwith, if not required in any other case.

The Murder Reference No.84 of 2009 is answered in the NEGATIVE and the death sentence awarded in this case is NOT

CONFIRMED.

(Abdul Sami Khan) (Syed Shahbaz Ali Rizvi) Judge Judge

Approved for reporting.

Judge Judge

Rafaqat Ali