Abdul Rehman vs State

CJDA 38

JUDGMENT SHEET

LAHORE HIGH COURT, BAHAWALPUR BENCH,

BAHAWALPUR

Criminal Appeal No. 466 of 2010 (Abdul Rehman v. The State etc.)

(M.R. NO. 16 of 2011)

Date of hearing: 09.09.2014 Appellants by: Mr. Muhammad Umair Mohsin, Advocate.

Complainant by: Hafiz Shahid Nadeem Kahloon, Advocate State by: Ch. Asghar Ali Gill, DPG Sadaqat Ali Khan, J.: This single judgment shall dispose of Criminal Appeal No. 466 of 2010 filed by Abdul Rehman appellant and Murder Reference No.16 of 2011 sent by the trial court for confirmation of the death sentence of Abdul Rehman appellant or otherwise as both the matters have arisen out of the same judgment dated 21.12.2010 passed by learned Additional Sessions Judge, Ahmad Pur East District Bahawalpur according to which the present appellant was convicted and sentenced as under:- “Abdul Rehman appellant was convicted u/s 302-B PPC and sentenced to death for committing murder of Wazir Ahmad deceased alongwith payment of compensation of Rs.2,00,000 awarded u/s 544-A Cr.PC. payable to the legal heirs of the deceased and in default thereof six months S.I. Benefit of section 382-B Cr.PC. was also extended to the convict.”

in case FIR No.756 dated 17.10.2006 under section 302 PPC police station, Uch Sharif, Tehsil Ahmadpur East, District Bahawalpur.

2.The facts of the case has been stated by Bashir Ahmad complainant/PW-1 real brother of deceased in his statement before the trial court and same statement is hereby reproduced for narration of the facts: - “On 16.10.2006, I was sitting in Madrasa Usmania/Masjid-e-Aqsa at Thul Hamza alongwith Nazar Muhammad son of Jam Muhammad Ali and Ahmad Ali PWs alongwith Wazeer Ahmad my real brother when Abdur Rehman son of Gulzar accused present in the court came there. Abdul Rehan stated to my brother Wazeer Ahmad to accompany him to Uch Sharif for a job. Abdur Rehman took my brother

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Wazeer Ahmad alongwith him proceeded to Uch Sharif. I waited him till evening but he did not return. I alongwith Nazar Muhammad Ahmad Ali PWs proceeded to Uch Sharif in search of my brother. We reached in Madrasa Iqra near Shamas Bagh Uch Sharif on a Motorcycle. We met Muhammad Abdullah and inquired from him Wazeer Ahmad, Abdur Rehman. Abdullah replied that Wazeer and Abdur Rehman came back and then went away for some job towards Pul Chatha new Abbasia Canal. When we reached at Pul Chatha to search both of them, we heard hue and cry. We rushed towards the place from where the cries were coming. We saw in the light of a motorcycle and torch, that Abdur Rehman accused present in the court was giving chhury blows to my brother Wazeer Ahmad who fell down on the ground after receiving these chhuri blows. On seeing us, the accused fled away from the spot by waiving the Chhurri. We followed him to catch but he fled away. Thereafter, we took care of my real brother Wazeer Ahmad in injured condition who succumbed to the injuries at the spot. Leaving Nazeer Muhammad and Ahmad Ali PWs with the deceased I proceeded to my house to inform my relatives. When I was on the way to P.S. Uch Sharif, I came across the police at Lalu Wali Pull/Mori. I informed the police about the occurrence and thus got recorded my statement about the incident which was recorded and read over to me. The police obtained my signature on my statement which is Exh.PA which was handed over to a constable to take the same to the PS for registration of a formal FIR. The Police alongwith us proceeded to the place of occurrence.”.

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 19.03.2007 against present appellant Abdul Rehman under section 302 PPC to which he pleaded not guilty and prosecution evidence was summoned.

5.Prosecution produced Bashir Ahmad complainant PW-1, Nazar Muhammad PW-2, Khalil Ahmad PW-3, Ahmad Ali PW-4, Muhammad Aslam HC PW-5, Dr.

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Muhammad Ajmal Bhatti PW-6, Dr. Bisharat Ali PW-7, Muhammad Saleem SI PW-8, Muhammad Qamar-ud- Din SI PW-9, Manzoor Ahmad ASI PW-10, Haji Munir Hussain Patwari PW-11 and Abdul Hameed constable PW-12 and produced in documentary evidence statement of Bashir Ahmad Exh.PA, FIR Exh.PA/1, Memo of possession of blood stained earth Exh.PB, Memo of possession of clothes of deceased Exh.PC, Memo of recovery of Chhuri Exh.PE, Postmortem Report Exh.PF, Injury Plan Exh.PG, Inquest Report Exh.PH, Chemical Examiner Report Exh.PM, Report of serologist Exh.PN, Report of serologist Exh.PQ, Medical Report Exh.DA and site plan Exh.PL and closed the prosecution evidence.

6.Medical evidence was furnished by Dr. Bisharat Ali Medical Officer, PW-7 who stated that the dead body was brought on 17.10.2006 at 11:30 PM. That on 18.10.2006 at about 09:30 AM he conducted postmortem examination on the dead body of Wazir Ahmad deceased and observed as under:-

EXTERNAL INJURIES:-

A dead body of a male age about 25 years with white and black beard, wearing light brown Qamiz and Shalwar, and a Taweez with black thread in neck, was lying on the mortuary table in supine position. Rigor mortis was present on the lower limbs. The Qamiz and Shalwar were stained with blood and having tears corresponding to the injuries. Following injuries were noted:- Injury No.1 beard An incised wound on the postro-latral aspect of right side of the neck in the upper part size 10x4 CM. Under lying bones were intact.

Injury No.2 An incised wound on the tragus of the right ear sized 2x2 CM, muscle deep.

Injury No.3 An incised wound on the anterior part of the pinna of the left ear sized 4x1 CM. the pinna was cut.

Injury No.4 An incised wound on the right anterior chest 4 inches below the nipple. Sized 4x2.5 CM. on dissection of injury No.4, liver was found damaged.

Injury No.5

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An incised wound below the injury No.4, about 2 CM sized 3.5 x 1 CM underlying liver was damaged and stomach. Injury No.6 An incised wound on the right lateral aspect of the abdomen just below the right costal margin. Intestines were protruding through wound sized 8x2.5 CM. Injury No.7 An incised wound on the left anterior chest 3 inches below the left nipple. Sized 4x1.5 CM, muscle deep.

Injury No.8 An incised wound on the left anterior chest 3 inches lateral to injury No.7 sized 2x1.5 CM.

Injury No.9 An incised wound on the left lateral chest in the lower part sized 2x1.5 CM on dissection spleen was damaged and cut. Injury No.10 An incised wound at the middle of the public region sized 1.5x1CM, muscle deep. Injury No.11 An incised wound on the back at lumbo- sacral region just on the right of the midline. Sized 1.5x1 CM, muscle deep. Injury No.12 An incised wound on the right lumar- region on the lateral side of the body. Sized 2.5x1CM, muscle deep.

Injury No.13 An incised wound on the posterior aspect of the right elbow. Sized 6x25 CM. underlying bones were intact. Injury No.14 An incised wound on the posterior aspect of left arm in its lower part. Sized 6x3CM.underlying bones were intact. Injury No.15 An incised wound on the anterior part of left upper arm in its lower part. Sized 2.5x1CM underlying bone was intact. Injury No.16 An incised wound on the posterior aspect of left forearm in its middle part. Sized 3.5x1 CM. Underlying bone was intact. Injury No.17 An incised wound on the posterior aspect of left forearm in its upper part. Sized 4x1CM. Underlying bone was intact. Injury No.18 An incised wound on the medial aspect of left fore-arm sized 8x2.5 CM. Underlying bone was intact.

Injury No.19 An incised wound on the medial aspect of left forearm in its lower part. Sized 2.5x1CM, muscle deep.

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Injury No.20 An incised wound on the upper part of left thigh on the anterior aspect. Sized 5x1 CM Muscle deep.

Injury No.21 Two incised wounds on the lower part of the right thigh. Sized 2x1 CM each. Underlying bones were intact. On dissection: The abdominal cavity was full of blood, Liver, spleen and stomach were damaged.

Cranium and Spinal Cord.

Scalp, skull and vertebrae intact Membranes, brain, spinal cord intact Thorax Walls, ribs and cartilages Walls damaged at the site of injuries.

Abdomen Walls Damaged at the site of injuries.

Peritoneum Damaged Diaphragm Damaged Stomach and its contents Damaged Liver Damaged Spleen Damaged Muscles, Bones, Joints:

An already described.

Remarks by Medical Officer After complete autopsy examination I was of opinion that death is resulted from haemorrhagic shock due to all injuries collectively, and damaged to the liver, spleen and stomach by the injuries No.4, 5 and 9. Such type of injuries were sufficient to cause death in ordinary course of nature. All injuries were ante-mortem in nature and were caused by sharp edged means.

Probable time that elapsed___________

(a)between injury and death within one hour

(b)between death and Postmortem within forty eight hours.

After conducting postmortem examination I issued postmortem report No.57/06/FMD the same is correct carbon copy of the original which is Exh.PF. Pictorial diagram of the seat of injuries is Exh.PF/1. Injury statement Exh.PF/2 and inquest report as Exh.PF/3 were endorsed by me.

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7.On the other hand, statement of present appellant 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 also did not produce his defence evidence and in reply to question “why this case against you and why the PWs deposed against you?” the appellant Abdul Rehman replied as under:-

“I have been falsely implicated in this case. In fact it is blind murder and the dead body of Wazir Ahmad was seen by the person of the locality and they informed to the Police. The Police took into possession the dead body of Wazir Ahmad and then informed the complainant and summoned him on following day from his house at about 10 a.m. And then a false and fabricated story was made with connivance of the police and no PWs and complainant were seen the occurrence. The hand of daughter of Abdul Majeed who is the uncle of the complainant was asked for Ahmad Ali who is the brother of the complainant and also the PW of this case, but subsequently the daughter of Abdul Majeed namely Mst. Pathani Bibi was got married with Abdullah who is my real elder brother. Likewise Ghulam Yasin who is also closely related to the complainant and her daughter Mst. Ashoo Bibi and the hand of her daughter Mst. Ashoo Bibi was demanded for Wazir Ahmad deceased. I raised objection and opposed the said proposal and the hand of Mst. Ashoo Bibi was refused by her parents to Wazir Ahmad. Due to this grudge I have been falsely implicated by the complainant in this case. Due to above said dispute we are not on visiting terms with complainant party. I am innocent and falsely involved in this case after making false and fabricated story by the complainant.

8.After conclusion of the trial, learned trial court convicted the present appellant Abdul Rehman with above stated sentences through judgment dated 21.12.2010. Hence this appeal.

9.Learned counsel for the appellant contended that:-

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(i)the judgment of the trial court dated 21.12.2010 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 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 21.12.2010 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 the prosecution case as mentioned in the FIR Exh.PA/1 recorded on the statement (Exh.PA) of Bashir Ahmad complainant PW1 real brother of Wazir Ahmad deceased has already been given in paragraph No.2 of this judgment, therefore, there is no need to repeat the same.

13.According to the FIR occurrence took place on 17.10.2006 at about 12:45 a.m. (night time) whereas FIR was registered on 17.10.2006 at 09:30 a.m. on the statement (Exh.PA) of Bashir Ahmad complainant. The distance between Police Station Uch Sharif and place of

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occurrence (near Pul Chatha) is about 2 Kilometers well mentioned in coloumn No.4 of the FIR Exh.PA/1. There is un-explained delay of about 9 hours in lodging of the FIR and Bashir Ahmad complainant PW-1 to explain this delay stated in the FIR as under:-

14.The above explanation is neither plausible nor acceptable and complainant Bashir Ahmad PW1 did not disclose reason for going to his house first which is at a distance of 30/40 Kilometers from the place of occurrence without reporting the matter of the murder of his real brother Wazir Ahmad to Police Station because in such a situation his natural and immediate conduct would have been to go to Police Station for reporting the matter. The above stated delay in lodging the FIR can be attributed to consultation, taking instructions and calculatedly preparing the report keeping the name of accused open for roping in such person whom ultimately prosecution may wish to implicate which is not ignorable and casts serious doubt in the prosecution story. Reliance is placed on case “Mehmood Ahmad and 3 others v. The State and another” (1995 SCMR 127) in which august 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.”

15.Bashir Ahmad complainant PW1 stated in FIR regarding motive as under:-

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16.Above stated motive has been omitted by Bashir Ahmad complainant PW-1 in his statement before the learned trial court recorded on oath and did not utter single word regarding motive of the occurrence. Likewise Nazar Muhammad PW2 is nephew of complainant Bashir Ahmad as well as Wazir Ahmad deceased and Ahmad Ali PW-4 is real brother of deceased Wazir Ahmad and complainant Bashir Ahmad PW1 who also recorded their statements before the learned trial court claiming themselves to be the witnesses of the occurrence but did not disclose any motive of the occurrence. So motive alleged in the FIR Exh.PA/1 by Bashir Ahmad complainant PW1 is not proved and same was not put to present appellant Abdul Rehman in his statement recorded under section 342 Cr.PC.

17.Bashir Ahmad complainant PW1 and Ahmad Ali PW4 are real brothers whereas Nazar Muhammad PW2 is nephew of Wazir Ahmad deceased and all these three PWs claim themselves to be the eye witnesses of the occurrence. Bashir Ahmad complainant PW1 is resident of Thal Hamza as recorded by him at the time of recording of his statement whereas Nazar Muhammad PW2 and Ahmad Ali PW4 are residents of Bait Imam Bakhsh Machhi. Further Bashir Ahmad complainant PW1 stated in his cross examination that village Thal Hamza is at a distance of 4 Acres away from Madrasa Usmania. Village Bait Imam Bakhsh Machhi is at a distance of 11/12 Kilometers from his Madrasa Usmania and the distance of Madrasa Usmania from Uch Sharif is at about 30/40 Kilometers. Likewise the distance between Madrasa Usmania Uch Sharif and Pul Chatha New Abbasia Canal is 30/40 Kilometers. In view of the above all the three alleged

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eye witnesses Bashir Ahmad PW1, Nazar Muhammad PW2 and Ahmad Ali PW4 were residing 30/40 Kilometers away from the place of occurrence (Pul Chatha New Abbasia Canal) and are not the residents of the vicinity of the place of occurrence. Admittedly in this case occurrence had taken place far away from the houses of the above stated witnesses and they were chance witnesses. According to the above stated eye witnesses they had seen the occurrence when they were in search of Wazir deceased. We have found it to be quite strange that if the appellant had to murder Wazir Ahmad deceased then he did not have to wait for arrival of the said witnesses for starting infliction of injuries upon deceased. It is also noticeable that despite their claimed presence at the time of occurrence at the place of occurrence the said eye witnesses had not tried to stop the appellant from inflicting injuries upon Wazir deceased being closed relatives of Wazir Ahmad deceased especially when Abdul Rehman appellant was not armed with any fire arm weapon to ward the said eye witnesses off or to keep them away. Reliance is placed on case “Irshad Ahmad v. The State” (2011 SCMR 1190) in which august Supreme Court of Pakistan has observed at pages 1192 and 1193 as under:- “We have found that both the said witnesses were not only very closely related to Shehzad Ahmed deceased but they were also chance witnesses. Mukhtar Ahmad complainant (PW-1) was the father of Shehzad Ahmed deceased whereas Shaukat Ali (PW-2) was a brother of the complainant and a paternal uncle of the deceased. The occurrence in this case had taken place far away from the houses of the said witnesses and they had statedly seen the occurrence when they were in search of the deceased. We have found it to be quite strange that if the appellant had to murder the deceased then he did not have to wait for arrival of the said witnesses for starting infliction of injuries upon the deceased. It is also noticeable that despite their claimed presence at the scene of the crime at the relevant time the said eye-witnesses had not tried to stop the appellant from inflicting injuries upon the

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deceased especially when the appellant was not armed with any firearm to ward the said eye-witnesses off or to keep them away”

18.In view of the above all the three above stated eye witnesses could not establish their presence at the time of occurrence at the place of occurrence plausibly and their statements were recorded with un-explained delay of 9 hours as discussed earlier adversely affecting the veracity of the witnesses. Reliance is placed on case “Rahat Ali v. The State” (2010 SCMR 584). For the foregoing reasons the evidence of eye witnesses Bashir Ahmad complainant PW1, Nazar Muhammad PW2 and Ahmad Ali PW4 is not believable and same is hereby disbelieved.

19.Medical evidence was furnished by Dr. Bisharat Ali PW7 who stated that dead body was brought in the hospital on 17.10.2006 at about 11:30 p.m. whereas postmortem examination was conducted on the dead body on 18.10.2006 at 09:30 a.m. whereas occurrence took place on 17.10.2006 at 12:45 a.m. (night) and we have found that postmortem examination of the dead body of Wazir Ahmad deceased was 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. Reliance is placed on case “Irshad Ahmad v. The State” (2011 SCMR 1190) in which august Supreme Court of Pakistan has observed at page 1193 as under:- “The medical evidence provided by Dr. Muhammad Aslam (PW7) had shown that the murder of the deceased could have taken place at about midnight during the night between 13/14-8-2001 and not at about 07-30 p.m. on 13-8-2001 as asserted by the above mentioned witnesses. 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

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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.”

20.Muhammad Qamar-ud-Din PW9 SI/I.O. of this case stated that on 29.10.2006 he arrested Abdul Rehman accused and on 05.11.2006 during interrogation he disclosed and led to the recovery of chhurri P-10 and his blood stained clothes Shalwar P-7, Qamiz P-8, Bunyan P-9 and blood stained handkerchief P-11. Parcel of chhurri P-10 was prepared and thereafter took into possession above stated articles through recovery memo Exh.PE attested by Nazar Muhammad PW2. This witness did not state that chhurri P-10 was blood stained and further has not stated that from where above stated articles were got recovered on pointation of Abdul Rehman appellant. On the other hand Nazar Muhammad PW2 nephew of Wazir Ahmad deceased stated that above stated articles were got recovered on pointation of Abdul Rehman appellant from an abandoned brick-kiln situated on KLP Road. Although PW-9 Muhammad Qamar-ud-Din SI/I.O. has not stated so even then above stated abandoned brick-kiln is accessible to everyone. Further Nazar Muhammad PW2 is closely related to Wazir Ahmad deceased stated above and is also not resident of the place of recovery and PW-9 Muhammad Qamar-ud-Din SI/I.O of this case has not joined any independent person from the vicinity of the place of recovery in recovery proceedings. In view of the above the recovery of above stated articles is doubtful which evidence is hereby discarded. Reliance is placed on case “Ghulam Akbar and another v. The State”

(2008 SCMR 1064).

21.Further the alleged recovery of above stated blood stained clothes belonging to Abdul Rehman appellant is not helpful to the prosecution in absence of the report of blood grouping and admittedly above stated clothes were not sent by the prosecution to ascertain the blood

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group. Learned counsel for the complainant submitted that on 29.10.2006 Abdul Rehman appellant was arrested and then was produced before Dr. Muhammad Ajmal Bhatti PW-6 for his medical examination who after medical examination observed multiple healed incised wound 2cm x 1/2CM on palmer aspect of middle finger of left hand and healed incised wound 1.1/2CMx1/2CM on upper part of palmer aspect of ring finger of left hand alongwith healed incised wound 1CMx0.2CM on back of left hand and these wounds are supporting the version of the prosecution but this submission of learned counsel for the complainant is not acceptable because Dr. Muhammad Ajmal Bhatti PW-6 himself admitted in cross examination that he had not mentioned the age of injury and colour of injury in the MLC. In view of the above in absence of duration of above stated injuries it cannot be said that the injuries were received by Abdul Rehman appellant in the occurrence dated 17.10.2006 at about 12:45 a.m. (mid- night) at the time of infliction of the injuries to Wazir Ahmad deceased. So this evidence is also not helpful to the prosecution and same is hereby discarded.

22.From the facts and circumstances narrated above, we are persuaded to hold that prosecution has badly failed to bring whom guilt of the appellant to the hilt and learned trial court was not justified for convicting him while basing upon untrustworthy/un- corroborated evidence deposed by entrusted chance witnesses which even otherwise is full of material contradiction especially un-reliable story deposed by Bashir Ahmad PW1, Nazar Muhammad PW2 and Ahmad Ali PW4. Resultantly salutary principle of benefit of doubt is extended in favour of appellant, Criminal Appeal No.466 of 2010 filed by Abdul Rehman present appellant is accepted and conviction and sentences awarded by the learned trial court through impugned judgment dated 21.12.2010 are set aside and Abdul Rehman appellant is ordered to be acquitted of the charge in case FIR No.756 dated 17.10.2006 under section 302 PPC P.S. Uch Sharif, Ahmadpur East,

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District Bahawalpur. He is directed to be released forthwith if not required in any other case. Murder Reference No.16 of 2011 is answered in NEGATIVE and death sentence of Abdul Rehman present appellant is NOT CONFIRMED.

(Altaf Ibrahim Qureshi) (Sadaqat Ali Khan) Judge Judge

M. Afzal

APPROVED FOR REPORTING.