Saeed Ahmad vs State etc.

CJDA 38

JUDGMENT SHEET

LAHORE HIGH COURT, BAHAWALPUR BENCH,

BAHAWALPUR

Criminal Appeal No. 286 of 2012 (Saeed Ahmed Vs. The State etc.)

Date of hearing: 11.02.2014

Appellants by: Hafiz Shahid Nadeem Kahloon, Advocate.

Complainant by: Mr. Muhammad Sharif Bhatti, Advocate

State by: Mr. Khalid Pervaiz Oppal, DPG.

Sadaqat Ali Khan, J.: The instant Criminal Appeal has been filed by Saeed Ahmed present appellant against the judgment dated 27.06.2012 passed by Additional Sessions Judge, Ahmadpur East, District Bahawalpur according to which appellant was convicted under section 302(b) PPC and sentenced to life imprisonment as ‘Tazir’ with the direction to pay Rs.50,000/- to the legal heirs of the deceased as compensation and in default there of further six months R.I. Benefit of section 382-B Cr.P.C was also extended to him in case FIR No. 461 dated 30.09.2008 under section 302, 109/34 PPC police station City Ahmadpur East, District Bahawalpur whereas remaining accused persons namely Abdul Razzaq and Sajid Bashir were acquitted.

2.Brief facts of the case as narrated in the statement (Ex.PA) recorded by Syed Hussain Ali Shah PW-1 complainant are that on 30.09.2008, he was sleeping in his house situated in Mohallah Shikari at Ahmadpur East. At about 02:30 a.m (night) he received a telephone from his Bhabhi Sadia Muddassir that some persons entered into her house and have injured his brother Syed Hazoor Ali Shah. He along-with Syed Javed Mustafa (PW-2) and Syed Ghulam Hussain Shah reached at the place of occurrence (in the house of the deceased) where they saw that there was injury on the

chest of his brother Hazoor Ali Shah and he was seriously injured. They took the injured Hazoor Shah and reached at Hospital Ahmadpur East where his brother Hazoor Shah succumbed to the injuries.

3.On 29.10.2008 with delay of about one month from registration of case, complainant made a written application (Ex.PB) before the police in which he mentioned that Hazoor Shah (deceased) had been murdered by Saeed Ahmad, Asad both sons of Abdul Razzaq and Sajid Bashir on the abetment of Abdur Razzaq accused. On 29.11.2008, complainant again made a supplementary statement before the police and stated that Abdur Razzaq accused had murdered his brother Hazoor Ali Shah by firing made by his son Saeed Ahmad (present appellant) and Sajid Bashir accused. He further stated that all the accused persons also threatened Sadia Muddassir, wife of Hazoor Ali Shah (deceased) that she and her children will be murdered if she told anybody about the occurrence. Motive behind the occurrence as stated by Syed Hussain Ali Shah complainant (PW-1) in his statement was that Abdul Razaq (acquitted accused) had doubt that Hazoor Ali Shah (deceased) had illicit relations with her daughter Azra and Abdul Razaq (acquitted accused) disclosed this fact to complainant 2/3 months prior to the occurrence.

4.After completion of the investigation, Challan was submitted in the court. Learned trial court after observing legal formalities under the Criminal Procedure Code framed the charge on 13.05.2009 against the present appellant and his co-accused (since acquitted) in which they pleaded not guilty and claimed trial and the prosecution evidence was summoned.

5.The prosecution produced Syed Hussain Ali Shah as PW-1, Syed Javed Mustafa PW-2, Sadia Muddassir PW-3, Syed Ghulam Mohy-ud-Din PW-4, Imtiaz Mehmood PW-5, Syed Muhammad Zahid PW-6, Khan Muhammad ASI PW-8, Munawar Hussain PW-10, Muhammad Nadeem Akthar PW-11, Dr. Farooq Hussain Shah PW-12, Mian Noor Muhammad Inspector/SHO

PW-13, Ejaz Ahmad PW-14, Muhammad Afzal PW-15 and after tendering documents i.e. complaint Ex.PA, copy of application dated 29.10.2008 Ex.PB, supplementary statement before the police dated 29.10.2008 Ex.PB/1, recovery memo of blood stained cotton Ex.PC, recovery memo blood stained cot Ex.PE, recovery memo of weapon of offence Ex.PF, recovery memo of ladder Ex.PH, application of Mst: Sadia Muddasir PW-3 to police dated 03.11.2008 Ex.PJ, copy of postmortem report Ex.PK, inquest report Ex.PM, copy of FIR Ex.PN, rough site plan Ex.PR, recovery memo Ex.PT, scaled site plan Ex.PU, report of Chemical Examiner Ex.PW and closed the prosecution evidence.

6.The medical evidence was furnished by Doctor Muhammad Iqbal Kamboh, THQ, Hospital, Ahmadpur East (PW-7) whereas Javed Iqbal Sub-Inspector (PW-9) is the Investigating Officer of this case.

7.On the other hand, the statements of Saeed Ahmad present appellant/accused along-with his co- accused Abdul Razaq and Sajid Bashir were recorded under section 342 Cr.P.C and they had not opted to appear as a witness under section 340(2) Cr.P.C and did not produce the defence evidence.

8.After conclusion of the trial, arguments were heard from both sides and learned trial court convicted the present appellant/convict and sentenced him as mentioned above and acquitted co-accused namely Abdul Razaq and Sajid Bashir on 27.06.2012. Hence this appeal.

9.Learned counsel for the appellant contended that:-

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

(ii)it is further submitted that prosecution has failed to prove its case beyond shadow of doubt against the present appellant but the learned trial court convicted the appellant in surmises and conjectures;

(iii)it is further submitted that learned trial court has misread the evidence present on file;

(iv)it is further submitted that Abdul Razaq and Sajid Bashir co-accused of the present appellant was acquitted by the trial court and criminal appeal No.300 of 2012 filed by complainant Syed Hussain Ali Shah has been dismissed by this Court;

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

(i)prosecution has proved its case beyond shadow of doubt and supported the judgement of the trial court; and

(ii)lastly submitted for the dismissal of the appeal of the present appellant.

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

12.According to the statement Ex.PA recorded by PW-1 Syed Hussain Ali Shah complaint for registration of formal FIR (Ex.PN) occurrence took place in the night between 29/30 September 2008 in which Syed Hazoor Shah (deceased) was murdered. PW-1 Syed Hussain Ali Shah before the trial court narrated almost same story which he recorded in his statement Ex.PA before the police for registration of the case and stated that he on 30.9.2008 was sleeping in his house situated in Mohallah Shikari at Ahmadpur East. At about 02:30 a.m (night) he received a telephone from his Bhabhi Sadia Muddassir (PW-3) that in her house some unknown persons entered and injured his brother Syed Hazoor Ali Shah (deceased). He along-with Syed Javed Mustafa (PW-2) and Syed Ghulam Hussain Shah (given up PW) reached at the place of occurrence (the house of the deceased) where they saw an

injury on the chest of Hazoor Ali Shah (deceased) who was seriously injured and was taken by them in the hospital Ahmadpur East where Hazoor Shah succumbed to the injuries. He further stated that on 29.10.2008 he submitted an application Ex.PB before the police in which he mentioned that deceased Hazoor Shah had been murdered by Saeed Ahmed (present appellant) and Asad both sons of Abdul Razaq and Sajid Bashir (acquitted accused) on the abetment of Abdul Razaq acquitted accused. He stated that motive of the occurrence was that Abdul Razaq (acquitted accused) had doubt that Hazoor Ali Shah (deceased) had illicit relations with her daughter Azra and Abdul Razaq (acquitted accused) disclosed this fact to complainant 2/3 months prior to the occurrence. He further stated that on 29.11.2008, he made a supplementary statement before the police that Abdul Razaq (acquitted accused) murdered his brother Hazoor Ali Shah (deceased) by firing made by his son Saeed Ahmed (present appellant) and Sajid Basheer (acquitted accused) and they extended threats to Sadia Muddassir PW-3 that she along- with her children will be murdered if she told anybody about the occurrence. PW-2 Syed Javed Mustafa and PW-3 Sadia Muddassir narrated almost same story as narrated by PW-1 Syed Hussain Ali Shah complainant. It is admitted fact that present appellant is not nominated in the FIR and for the first time PW-1 Syed Hussain Ali Shah (complainant) introduced him in his application Ex.PB/1 dated 29.10.2008 moved before the police as an accused along-with Asad (not tried), Sajid Bashir and Abdul Razaq (acquitted accused) without specifying any role thereunder and neither source of information has been mentioned in the application Ex.PB by the complainant PW-1 Syed Hussain Ali Shah nor he stated in examination-in-chief that on 29.10.2008

from whom he got knowledge that Saeed Ahmed present appellant, Asad, Sajid Bashir, Abdul Razaq (acquitted accused) are the culprits of the murder of Hazoor Ali Shah (deceased). Further the motive for the first time has been given by the complainant Syed Hussain Ali Shah in his second application Ex.PB moved on 29.10.2008 with the delay of one month from registration of the case i.e. 30.09.2008 and no reason was given in application Ex.PB as well as in his statement before the trial court that why he concealed this fact and did not disclose the same on 30.09.2008 on the day of occurrence in his statement before the police (Ex.PA) for registration of the case. PW-1 complainant Syed Hussain Ali Shah stated in cross-examination that he does not remember as to whether the accused persons Abdul Razaq (acquitted accused) and Saeed present appellant were present at the place of occurrence or not. He stated in cross-examination that on 29.10.2008 he submitted an application before the police regarding involvement of the accused persons before filing of the application by Sadia Mudassir (PW-3) widow of Hazoor Ali Shah (deceased). He further stated in cross-examination that after the occurrence Sadia Mudassir remained present in that house for one month. Abdul Razaq accused is a cook by profession. He further admitted that it is also correct that meal of ‘Qul Khawani’ of the deceased was cooked by Abdul Razaq accused. Sadia Mudassar (PW-3) widow of Hazoor Ali Shah (deceased) remained present alone in that house. He further admitted that it is correct that the wife of Abdul Razaq accused filed a civil suit against Sadia (PW-3). He further stated in cross- examination that he does not remember the date of the Civil Suit therefore he cannot explain as to whether he filed this application against the accused after the filing of the civil suit. He further stated in cross-examination that in his application

he also mentioned the name of Asad (not tried) and in the application of Sadia Mudassir (PW-3) Asad was not mentioned. He stated in cross- examination that he filed an application on 29.10.2008 at his own. On that day, Sadia Mudassir PW-3 did not tell him about the culprits. He stated in cross-examination that at the time inspection, at the place of occurrence, Sadia was at her house. PW-2 Syed Javed Mustafa stated in cross-examination that they reached at the place of occurrence at about 03:00 a.m. and for the first time his statement was recorded on 29.10.2008 at about 01/02:00 p.m he got recorded total two statements before the police first on 29.10.2008 and the second on 29.11.2008. He further stated in cross-examination that at the time of inspection of the place of occurrence by the police Sadia Mudassir (PW-3) widow of Hazoor Ali Shah deceased was present at her house. He stated in cross-examination that on 29.10.2008, they informed to the police regarding the culprits and at that time Sadia (PW-3) widow of Hazoor Ali Shah deceased was not present with us. After the submission of application by Sadia Mudassir they came to know about the culprits. He stated in cross-examination that Sadia (PW-3) has two children the age of her son is 12/13 years and her daughter is about 8/9 years of age. He staed in cross-examination that at the time of ‘Qul Khawani’ of the deceased Abdul Razaq accused coocked the meal. Admittedly, PW-1 Syed Hussain Ali Shah complainant and PW-2 Syed Javed Mustafa were not the eye witnesses of the occurrence and PW-2 for the first time recorded his statement on 29.10.2008 before the I.O with the delay of about one month from the registration of the FIR i.e. 30.09.2008. So the evidence of PW- 1 Syed Hussain Ali Shah and PW-2 Syed Javed Mustafa being hearsay evidence is not acceptable and all their statements were recorded with

unexplained delay during the investigation as stated above, hence, their evidence is disbelieved.

13.PW-3 Sadia Mudassir widow of Syed Hazoor Ali Shah (deceased) is an alleged eye witness of the occurrence who stated before the trial court that on 30.09.2008 at about 2/2:30 a.m (night) her husband Hazoor Ali Shah and her two children were sleeping in the courtyard and she was sleeping in the room due to her illness. Suddenly, noise of walking of some person came from the roof of her room. She came out the room and saw that accused Saeed (present appellant) made straight fire at her husband which he received on his chest. Further stated that Sajid Bashir and Abdul Razaq (acquitted accused) along-with one unknown accused was also there and extended threats to her and her kids for not disclosing the occurrence to anybody. She stated that she moved an application Ex.PJ dated 3.11.2008to the police wherein she mentioned the name of the accused Abdul Razaq, Sajid Basheer (acquitted accused), Saeed (present appellant) and one unknown person which bears her signature Ex.PJ/1. This application Ex.PJ was moved by PW-3 Sadia Mudassir on 03.11.2008 for the first time with the delay of about more than one month from the registration of the case i.e. 30.09.2008. It is not understandable that on 29.10.2008 PW-1 Syed Hussain Ali Shah complainant had moved a second application Ex.PB introducing Saeed Ahmed present appellant along-with co-accused Abdul Razaq, Sajid Basheer (since acquitted) and Asad (not tried) without giving role to them with motive that Abdul Razaq (acquitted accused) had suspicion that deceased had developed illicit relations with her daughter but at that time in the application Ex.PB, PW-1 did not disclose the source from whom he had got knowledge regarding the involvement of the accused (present appellant)

and Abdul Razaq etc in the murder of his brother Hazoor Ali Shah (deceased) and only after about four days another application is moved by PW-3 Sadia Mudassir (widow of the deceased) which is Ex.PJ dated 03.11.2008 in which specific role of the accused including present appellant is given showing the Sadia Mudassir PW-3 as eye witness. So these two application Ex.PB dated 29.10.2008 moved by PW-1 Syed Hussain Ali Shah and Ex.PJ dated 03.11.2008 moved by Sadia Mudassir (PW-3) widow of deceased are contradictory with each other and further PW-3 Sadia Mudassir herself stated in cross- examination that Hussain Ali Shah complainant PW-1 her ‘Dewar’ and Javed Mustafa PW-2 were with her at that time when she got recorded her first statement to the police and the police written the application and she only signed the same. She stated in cross-examination that she told to the police that she did not know that who had murdered her husband. She recorded her statement before the police that some unknown persons entered into her house and murdered her husband. She stated in cross- examination that first of all she told her ‘Dewar’ Hussain Ali Shah about the culprits on the day when she submitted the statement before the police on 03.11.2008. She told that her ‘Dewar’ did not tell her about the culprits before 03.11.2008. This statement again is not acceptable because before the application of PW-3 Sadia Mudassir, PW-1 Hussain Ali Shah had moved second application on 29.10.2008 which is Ex.PB in which name of the accused including appellant were mentioned by him with motive without specifying role of the accused. She stated in cross-examination that after the occurrence accused Saeed Ahmed and Abdul Razaq were living in their houses. Statement of this lady PW-3 Sadia Mudassir widow of Syed Hazoor Ali Shah deceased is not

acceptable because her statement is delayed one and the explanation given by her for this delay is not acceptable that one lady, before her eyes, her husband was murdered but she remained mum for more than one month despite of the fact that she knew the culprits and she also has not produced her son aged about 12/13 years and her daughter aged about 8/9 years during the investigation before the police for corroborating her statement.

14.Delayed statement without furnishing any plausible explanation is a fatal to the prosecution and thus the statement of PW-3 Sadia Mudassir is also not believable in this case in the peculiarly facts and circumstances of the present case who also remained silent qua the involvement of the accused for about more than a month. Reliance is placed on case titled ‘Rahat Ali Versus The State’ (2010 SCMR 584) relevant para is at page 588 which is reproduced as under: - “it has also been observed by this court that delay in recording the statement without furnishing any plausible is also fatal to the prosecution case and the statement of such witenss was not relied upon in the case of Syed Muhammad Shah Versus The state 1993 SCMR 550.

Therefore, evidence of PW-2 is coming within the scope of above rules laid down by this court. Hence, his statement cannot be safely relied upon and the circumstances of the present case”

15.PW-4 Syed Ghulam Moh-ud-Din who stated that on 04.11.2008 when he was present in his house alongwith Tariq Mehmood (given up PW), Abdul Razaq, Saeed, Sajid Basheer and one unknown person came at the door of his house. Abdul Razaq accused called him and he went outside the door and they all along-with him came inside his house. The accused persons told him that they want to talk about the murder of Hazoor Ali Shah. They asked him that he is a close relative of the deceased therefore they want

to tell the actual story of the murder of the deceased. Therefore, he should not take any legal action against them and then Abdul Razaq (acquitted accused) told him that deceased had illicit relations with his daughter Azra. He was forbidden but all in vain therefore, he alongwith his son Saeed Ahmed, Sajid Basheer and one unknown person murdered him. This extra judicial confession is apparently seems to be a confession by Abdul Razaq who has been acquitted in this case and to the extent of appellant and their accused they spoke nothing, otherwise being joint confession is not admissible in evidence. Even otherwise, evidence of extra judicial confession is a very week type of evidence which normally was created when prosecution failed to collect any tangible evidence to prove the charge and that such type of evidence should not be relied upon in absence of any corroborative piece of evidence. In this respect reliance is placed on case titled “Zahid Hussain versus the State” (2008 P.Cr.L.J 1532) and evidence of this witness Syed Ghulam Moh-ud-Din PW-4 thus is not believed. Motive which was disclosed for the first time by PW-1 Syed Hussain Ali Shah complainant in his application Ex.PB on 29.10.2008 with the delay of about one month from registration of the case i.e. 30.09.2008 stating therein that Abdul Razaq (acquitted accused) had suspicion that Hazoor Ali Shah deceased developed illicit relations with her daughter and thereafter repeated same motive in the application Ex.PJ moved by PW-3 Sadia Mudassir widow of the deceased on 3.11.2008 for the first time in her application and both witnesses have been disbelieved earlier so motive is not proved. PW-5 is Imtiaz Mehmood who stated that on 30.09.2008 at about 02:00 a.m (night) he along- with Azhar Hussain (given up PW) were going to

Rahmyar Khan when they reached near the Kotcha Taraklay Shah near Muslim Girls School, they saw Abdul Razzaq (acquitted accused) and Saeed present appellant were present on the road, they asked to them that why they are standing there and they replied that some persons are coming from Bahawalpur and they were waiting for them. This witness stated in cross-examination that his statement was recorded by the police on 04.11.2008 meaning thereby after one month from the occurrence i.e 30.9.2008, again said after two months, again said after three month. Imtiaz Mehmood PW-5 in cross-examination admitted that he is paternal cousin of the complainant PW-1 Syed Hussain Ali Shah who is real brother of Hazoor Ali Shah deceased. The evidence of this witenss is also not believable as evidence of ‘Waj Takkar’ is also very weak type of evidence which normally was created when prosecution failed to collect any tangible evidence to prove the charge and further this statement is delayed ne without explaining the delay. It is well settled principle of law that one tainted piece of evidence could not corroborate another piece of tainted evidence because if this is allowed to be done, this very necessity of corroboration would be frustrated. Reliance is placed on case titled “Mursal Kazmi alias Qamar Shah and others Versus The State” (2009 SCMR 1410) relevant para is at page 1417 which is reproduced as under: - “It is well settled that one tainted piece of evidence could not corroborate another piece of tainted evidence because if this is allowed to be done then very necessity of corroboration would be frustrated”

16.PW-9 is Javed Iqbal S.I/Investigating Officer of this case stated in cross-examination that on 29.10.2008 complainant moved an application against Abdul Razaq accused and

further stated that before the said application the complainant did never show their suspicion regarding the involvement of any person in the crime. He admitted in cross-examination that he had submitted progress report to D.P.O on 29.10.2008 revealing that he joined in investigation one Sajjad alias Saji son of Fayyaz Hussain and he also joined in the investigation one Muhammad Afzal son of Bago vide case diary No.4 dated 16.10.2008. He stated in cross- examination that the room from where the weapon was recovered was found close/bolted from outside but it was not locked. The box from where the weapon was recovered was not locked. He further stated that Carbine/weapon was not sent to Forensic Science Laboratory again said no empty was recovered from the spot. So recovery is inconsequential in this case and is not corroborative piece of evidence. Medical evidence has only indicated that the deceased has lost his life due to fire arm injury but does not lead to the culprit.

28.From the facts and circumstances narrated above, I am persuaded to hold that prosecution has badly failed to bring home guilt of the appellant/convict to the hilt and the learned trial court was not justified in convicting him while basing upon untrustworthy/uncorroborated evidence deposed by interested witnesses which even otherwise is full of material contradiction especially unreliable story deposed by the PWs. Resultantly, salutary principle of benefit of doubt is extended in favour of the appellant/convict. The instant Criminal appeal No. 286 of 2012 filed by Saeed Ahmed appellant is accepted and conviction and sentences awarded by the learned trial court vide judgment dated 27.06.2012 is hereby set-aside and the appellant/convict is ordered to be acquitted of the charge in case FIR No. 461 dated 30.09.2008 under section 302,

109/34 PPC police station City Ahmadpur East, District Bahawalpur. He is directed to be released forthwith if not required in any other case.

(Sadaqat Ali Khan) Judge

Approved for Reporting

Irfan