Saif ullah VS Ghulam Mustafa Tabbassum etc.

Stereo. H C J D A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT AT LAHORE.

JUDICIAL DEPARTMENT

Criminal Appeal No. 703-2003.

(Saif ullah v. Ghulam Mustafa Tabassum etc)

JUDGMENT

Date of Hearing: _________14.10.2014________________________________ Appellant by: Nemo.____________________________________________ State by Mr. Munir Ahmad Sial, Deputy Prosecutor General.

Aalia Neelum, J. – Through instant appeal filed under Section 417 (2-A) of Cr.P.C, complainant has challenged the acquittal of respondents No.1 to 5 recorded by the learned Sessions Judge, Mandi Bahauddin vide judgment dated 22.03.2003 in case F.I.R. No.445-1999, dated 31.08.1999, offence under Sections 302, 34, 109 P.P.C., registered at Police Station, Phalia, District, Mandi Bahauddin.

2.Briefly, the facts described in the F.I.R. are that complainant had two brothers whereas his eldest brother-Pervaiz Ahmad had died 18/19 years ago. The accused Ghulam Mustafa Tabassum and Tehseen Pervaiz are sons of his deceased brother. After the demise of deceased brother, petitioner had given the land and properties to his nephews, left by their deceased father. On 31.08.1999, complainant along with his brother Safdar Mehmood and other PWs went to the land for cutting the eucalyptus trees. The brother of complainant Sardar Mehmood (since died) stayed there whereas complainant along with PWs proceeded towards his dera of cattle. At about 9:30 a.m. Safdar Mehmood (since died) had left the field for his village and was at a distance of 1 1⁄2 acres from the dera of complainant, the accused-Ghulam Mustafa Tabassum armed with

Criminal Appeal No.703 of 2003 (Saif ullah v. Ghulam Mustafa Tabassum etc).

rifle 8 mm while accused-Tehseen Pervaiz was armed with rifle 7 mm who simultaneously made fires from their respective weapons, which landed on various parts of Safdar Mehmood, who fell down and succumbed to the injuries at the spot.

3.On the basis of statement (Ex.PD/1) of the complainant (PW-7) F.I.R. (Ex.PD) was chalked out by Muhammad Latif, Moharrar (PW-5). Haji Muhammad Ashraf, S.I (PW-11) after registration of F.I.R., visited the place of occurrence and prepared rough site plan (Ex.PF), prepared inquest report (Ex.PG) and injuries statement (Ex.PH). He also took into possession blood-stained earth vide recovery memo (Ex.PJ), empties of rifle 8 mm P-5/1-3 from the place of occurrence vide recovery memo (Ex.PK). Last worn clothes of deceased were handed over to the Investigating Officer by Chan Pir, Head Constable vide recovery memo (Ex.PA). On 30.09.2009, Investigating Officer arrested the accused-Ghulam Mustafa Tabassum, who got recovered rifle P-6 from his custody by preparing recovery memo (Ex.PE). Remaining accused persons were arrested on 10.10.1999. Thereafter Muhammad Ashraf, S.I. (PW-10) conducted remaining investigation.

4.Having found the accused persons (respondents No.1 to 5) guilty, the Investigating Officer prepared report under Section 173 of Cr.P.C. and sent the same to the court of competent jurisdiction. The learned trial court, on 07.06.2000 formally charge sheeted the accused (respondents No.1 to 5) to which they pleaded not guilty and claimed trial.

5.The prosecution in support of the version, produced eleven (11) witnesses. Ocular account of occurrence in this case has come out from the statements of Saif ullah-complainant (PW-7) and Muhammad Aslam (PW-8) whereas Dr. Muhammad Ijaz (PW-4) had

Criminal Appeal No.703 of 2003 (Saif ullah v. Ghulam Mustafa Tabassum etc).

conducted postmortem of deceased-Safdar Mehmood on 31.08.1999 and observed as under:-

1.Lacerated fire arm wound 1.5 x 1 cm with inverted edges, 4 cm below the left clavicle and 6 cm lateral to the sternum going deep.

2.Lacerated fire arm wound with everted edges 12 cm infero lateral to the left nipple on the left lateral side of chest.

3.Lacerated fire arm wound 1 x 1 cm with inverted edges, 15 cm infero posterior to the injury No.2, on the back of the abdomen.

4.Lacerated fire arm wound measuring 2 x 2 cm with inverted edges just inferior to the left buttock going deep.

Opinion.

“After postmortem, the doctor opined that death has occurred due to injury No.1 and 3 which had caused damage to vital organs lung and spleen, stomach, large intestine and had caused massive hemorrhage. “Time between injuries and death within few minutes and time between death and postmortem was seven to 16 hours.”

Ex.PC is carbon copy of postmortem examination and Ex.PC/1 is diagram of injuries and bore his signatures.

The statements of remaining prosecution witnesses are formal in nature.

6.Learned District Attorney has given up Nasrullah Khan, Muhammad Aslam, Muhammad Inayat-PWs being un-necessary whereas Asmat ullah, S.I. being dead and Shahbaz Ahmad who is in abroad were also given up on 18.07.2002 and 31.10.2002 respectively. The report of Chemical Examiner (Ex.PL) was tendered by the District Attorney and thereafter closed the evidence of prosecution.

Criminal Appeal No.703 of 2003 (Saif ullah v. Ghulam Mustafa Tabassum etc).

7.The accused (respondent No.1) was also examined in terms of Section 342 of Cr.P.C., wherein he opted not to appear as his own witness in disproof of the allegations levelled against him in the prosecution version. In response to the question why this case against him and why the PWs deposed against him, Ghulam Mustafa Tabassum-accused (respondent No.1) made the following deposition:- “The PWs are inimical to me and they have deposed against me after concealing and twisting the real facts and gave false evidence against me so that they may usurp my property. As we are two brothers and to usurp the property of both of us, they involved.”

8.The learned trial court after evaluating the evidence available on record and in the light of arguments advanced from both sides, found that the prosecution has miserably failed to prove the allegations levelled against the accused (respondents No.1 to 5) and acquitted the accused persons (respondents No.1 to 5).

9.The instant appeal was instituted on 24.04.2003 and it was dismissed as withdrawn to the extent of respondent No.2 to 5 in view of statement made by learned counsel for the appellants on 01.06.2006. Hence, this matter is alive only to the extent of respondent No.1-Ghulam Mustafa Tabassum. As this Court has gone through the docket. As per acknowledgment for disposal of old cases, therefore, the cases can not be left open. As such, the arguments advanced by learned Law Officer present in Court have been heard and perused the available record annexed with this appeal.

10.After closely scanning the material on record, we noticed the following salient features in the prosecution evidence.

i)Police Station, Phalia is only two miles away from the scene of occurrence.

Criminal Appeal No.703 of 2003 (Saif ullah v. Ghulam Mustafa Tabassum etc).

ii)The complainant (PW-7) got recorded his statement (Ex.PD/1) at Ghanian Choongi Octroi Post situated at Ghanian Road.

iii)The statement (Ex.PD/1) was recorded by Haji Muhammad Ashraf, S.I. (PW-11) and PW-11 forwarded the said statement to the police station for registration of formal F.I.R. (Ex.PD) through Mazhar Abbas 74/C. The complainant (PW-7) deposed that the road was situated at a distance of 1/2 K.M. from his dera.

iv)The complainant (PW-7) deposed that he proceeded towards road on foot where he met a cyclist. He got cycle from him and while riding cycle went to the police station when he met the police near Ghanian Choongi. The road was situated at a distance of 1⁄2 K.M. from his dera. The complainant (PW-7) deposed that he did not remember the name of the cyclist who was a stranger. Thus, he has given an evasive reply to this material question. As if the complainant got cycle from any one, he has to return it back to the owner of cycle and it is not possible that he forgot his name.

v)The Investigating Officer-Haji Muhammad Ashraf, S.I. (PW-11) deposed that it was correct that he recorded statements of eye witnesses after having visited the spot and having prepared rough site plan of the place of occurrence and after having prepared inquest report, injuries statement and after having taken into possession empties and blood-stained earth from the spot.

vi)The eye-witness Muhammad Aslam (PW-8) deposed that it was correct to say that his statement regarding the occurrence was taken down by the police separately and his statement for the recovery of the blood-stained earth and empties were taken down separately. If, Investigating Officer secured empties from the spot, he had to record only one statement of the witness under Section 161 Cr.P.C. As witness was supposed to narrate all facts, happened

Criminal Appeal No.703 of 2003 (Saif ullah v. Ghulam Mustafa Tabassum etc).

before recording his statement under Section 161 Cr.P.C.

vii)In the inquest report (Ex.PG) prepared by Haji Muhammad Ashraf, S.I. (PW-11), there is no mention with regard to the recovery of the three crime empties and column Nos.22 and 23 in the inquest report (Ex.PG) were left blank. Even names of two or more respectable of area were not mentioned in the last column. It appears that the First Information Report has been recorded much later and not at the time it purported to have been done.

viii)Even particulars of F.I.R. are not mentioned on the postmortem report (Ex.PC).

ix)The alleged eye-witness Muhammad Aslam (PW-8) was resident of Dhuni khurd, Police Station, Qadirabad which is situated at a distance of 25 kilo meter from the place of occurrence. The witness was by chance presence at the time of occurrence. As to why he was present at the place of occurrence was not properly explained.

x)In column of time of knowledge of occurrence in the inquest report (Ex.PG) the Investigating Officer had mentioned time as 9:30 a.m. whereas statement of complainant (PW-8) was recorded at 10:00 a.m. which doubted the time of report and time of occurrence.

xi)In this case, in column of “probable time that elapsed between injury and death” some interpolations have been found in postmortem report and doctor has earlier opined that time between injury and death is 8 to 16 hours and thereafter cutting the same, mentioned within few minutes and in column of “probable time that elapsed between death and postmortem” the doctor opined that time between death and postmortem is 8 to 7 hours, after over writing it was mentioned 1 to 8 hours and thereafter cutting the earlier entries, it was mentioned to

Criminal Appeal No.703 of 2003 (Saif ullah v. Ghulam Mustafa Tabassum etc).

16 hours. It is also noted that particulars of F.I.R. were not mentioned on the postmortem report.

xii)Saif ullah (PW-7) during cross-examination deposed that “it is correct to say that before going to hospital, I accompanied the dead body to the police station. We stayed at the police station about one hour. The PWs Muhammad Aslam and Muhammad Aslam son of Mirza Khan also stayed in the police station whereas Muhammad Aslam (PW-8) stated that “after the occurrence police came and removed the dead body to the hospital directly. Dead body was not removed to the police station first”. It is incorrect to say that I had visited the police station with the dead body.

xiii)Muhammad Aslam (PW-8) deposed that “ I do not know as to why the accused has committed the murder of the deceased.”

xiv)Dr. Ijaz Ahmad (PW-4) admitted it as correct that this occurrence might have taken place at 12:00 midnight.

xv)Dr. Ijaz Ahmad (PW-4) also admitted it as correct that in column of death, the time and date is mentioned on the basis of police papers. Doctor Ijaz Ahmad (PW-4) also admitted that he has not mentioned in shalwar or qamiz as whether any corresponding hole is present, only written shalwar qamiz encircled.

xvi)Dr. Ijaz Ahmad (PW-4) also admitted it as correct that the direction of injury No.1 and injury No.2 is from upward to downwards. It is possible that the assailant was at a higher pedestal then the victim.

xvii)As per inquest report (Ex.PG) in column No.8, it is mentioned “stiff body organ.”

Criminal Appeal No.703 of 2003 (Saif ullah v. Ghulam Mustafa Tabassum etc).

11.The above chronological events indicate that the prosecution has not come forward with the true facts. We noticed that the Investigating Officer (PW-11) has prepared the inquest report on 31.08.1999 at 9:30 a.m. and at the instance of Saif ullah (PW-7), the First Information Report (Ex.PD) was lodged on 31.08.1999 at 10:25 a.m. under Sections 302, 109, 34 P.P.C., against five accused persons including respondent No.1. It is noticed that First Information Report was lodged on the statement (Ex.D/1) of the complainant (PW-7) made on 31.08.1999 at 10:00 a.m. thereafter it is observed that First Information Report was lodged after preparation of inquest report (Ex.PG). It is observed by this Court that in inquest report (Ex.PG) recovery of three (03) crime empties of 8-mm were missing in the contents of inquest report, therefore, it leads to the probability that First Information Report was lodged after due deliberation and consultation. It is also noted by us that at the time of preparation of inquest report (Ex.PG) no one was present from the locality at the time of investigation as in second last column only date 31.08.1999 is mentioned and “place” whereas inquest report was prepared is not mentioned.

12.It is also observed by us that at the time of preparation of inquest report (Ex.PG) Investigating Officer observed and mentioned in column No.08 that body organs as stiff. Rigor mortis is Latin word, its meaning is “stiffness of death” is one of recognizable signs of death that is caused by a chemical change in the muscles after death, causing the limbs of the corpus to become stiff and difficult to manipulate. In humans it commences after about three hours. This phenomenon progresses in a downward, head to toe direction. In 12 to 18 hours the body becomes stiff. At this stage, joints of dead body move only by force, breaking them in the process. In the instant case, mentioning of stiffness of body in the inquest report (Ex.PG) indicates

Criminal Appeal No.703 of 2003 (Saif ullah v. Ghulam Mustafa Tabassum etc).

that occurrence did not take place at the time stated by the prosecution witnesses.

13.We also noted that the Investigating Officer (PW-11) also did not come forward with impartial investigation. He deposed that after recording statement (Ex.PD/1) he proceeded to the place of occurrence and after preparing rough site plan of the place of occurrence, after preparing inquest report, injuries statement, securing crime empties into his possession and blood-stained earth from the spot recorded statements of the witnesses under Section 161 of Cr.P.C. However, in the inquest report column No.23 is left blank and in the body of inquest report, contents of First Information Report were reproduced. Apart from the above fact, particulars of F.I.R. were not mentioned in the proforma of inquest report. It suggests that at the time of preparing inquest report, the copy of F.I.R. was not available with the Investigating Officer. This fact to our mind goes to suggest that the F.I.R. was lodged after preparing of inquest report.

14.Another circumstance equally important in this regard is to the effect that the copy of the F.I.R. (Ex.PD) was not sent to the doctor who conducted the postmortem examination along with other documents sent by the police. The particulars of the F.I.R were not mentioned on the postmortem report. This is a strong circumstance to show that till the time of postmortem, the F.I.R. was not in existence. It is also noted that postmortem report has interpolation and over writing in the column of probable time that elapsed between injury and death, and death and postmortem. The interpolation and over writing was not at all acceptable.

15.There is yet another circumstance which creates doubt. According to Saif ullah (PW-7) three persons who were cutting the trees have not been witnesses of the occurrence. He also deposed that before going to hospital he accompanied the dead body to the police station and he stayed at the police station about one hour. Saif ullah

Criminal Appeal No.703 of 2003 (Saif ullah v. Ghulam Mustafa Tabassum etc).

(PW-7) also deposed that Muhammad Aslam and Muhammad Aslam son of Mirza Khan also stayed in the police station. However, Muhammad Aslam ((PW-8) deposed that neither dead body was removed to the police station first nor he stayed in the police station. We are of the view that the statements of PW-7 and PW-8 are not free from material contradictions. Muhammad Aslam (PW-8) was resident of Dhuni khurd Police Station, Qadirabad which is situated at a distance of 25 kilometer from the place of occurrence and his presence at the place of occurrence is not plausibly explained and his presence on the spot was doubtful. He was a chance witness and his testimony is doubtful.

16.After considering the facts and circumstances of the case and taking into consideration the material on record and the evidence adduced in the trial, we find no reason to take any view contrary to the view taken by the learned trial court. Taking cumulative effect of the circumstances and the testimony of the witnesses and documentary evidence into consideration, we are of the view that prosecution has failed to bring true facts before the court. The story of incident is highly doubtful, the witnesses were inimical and they have given contrary statements on material points.

17.Accordingly we find no reason to interfere with the judgment impugned into appeal and the appeal is, therefore, dismissed.

(Mazhar Iqbal Sidhu) (Aalia Neelum) Judge Judge

Approved for reporting.

A.S.Khan.