Manzoor Hussain VS Basharat Ali

Stereo. H C J D A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT AT LAHORE.

JUDICIAL DEPARTMENT

Criminal Appeal No. 706-2004.

(Manzoor Hussain v. Basharat Ali etc)

JUDGMENT

Date of Hearing: _________14.10.2014________________________________ Appellant by: Nemo._____________________________________________ State by: Munir Ahmad Sial, Deputy Prosecutor General._________ Complainant by: Nemo_____________________________________________ Aalia Neelum, J. – The complainant-Manzoor Hussain by way of filing instant appeal, has challenged the judgment qua acquittal of respondents No.1 & 2-Basharat Ali and Muhammad Rafique handed down by the learned Additional Sessions Judge, Faisalabad on 01.04.2004 in case F.I.R. No.268 of 2003 dated 06.06.2003, offence under Sections 302, 34 of P.P.C., registered at Police Station, Dijkot, District, Faisalabad.

2.Intriguingly, the facts as briefly stated in F.I.R. (Ex.PA) on the complaint (Ex.PA.1) of complainant-Manzoor Hussain (PW-

11)are that on the fateful day, he along with his brother namely Muhammad Azam alias Bhola (since died) and Khalazad-Allah Ditta after taking their meal went out from his house towards mangoes field of Rana Ilyas whereas two unknown accused persons were plucking mangoes whereupon brother of complainant-Muhammad Azam alias Bhola (since died) made a lalkara that who are you and why you are plucking the mangoes, thereafter one of the accused made 4/5 fire shots from his pistol towards the complainant and his deceased brother, out of which one fire shot was landed on the right flank of

Criminal Appeal No.706 of 2004 (Manzoor Hussain v. Basharat Ali etc).

Muhammad Azam alias Bhola (since died) who fell down. The accused while making firing decamped. The injured was shifted to Civil Hospital, Dikjot, who succumbed to the injuries there.

3.On the basis of complaint (Ex.PA/1) of the complainant (PW-11) F.I.R. (Ex.PA) was recorded by Khalid Pervaiz, Moharrar (PW-1). After registration of case, the investigation of instant case came into the hands of Allah Ditta, S.I. (PW-13) who after inspecting the dead body of deceased-Muhammad Azam prepared the injury statement (Ex.PI) and inquest report (Ex.PJ). On 07.06.2003, the Investigating Officer after visiting the place of occurrence, prepared the visual site plan (Ex.PL), also took into possession the blood- stained earth from the place of occurrence vide recovery memo (Ex.PB), further prepared recovery memo (Ex.PC) qua one pair of shoe (sleeper) orange colour P-I/1-2 and one pair of tyre sole shoe black colour P-2/1-2. Last worn clothes of deceased-Muhammad Azam alias Bhola were produced before the Investigating Officer by Khadim Hussain, Constable as Shalwar P-4, Bunian P-5 whereupon he prepared the recovery memo (Ex.PK). Manzoor Hussain, Patwari prepared the scaled site plan as (Ex.PG) and (Ex.PG/1). Thereafter on 15.06.2003 the Investigating Officer recorded the statements of PWs namely Yaqub, Saleem and Akbar Ali who raised their fingers towards Basharat Ali and Muhammad Rafique. On 18.06.2003, the Investigating Officer arrested the above said accused persons, who were sent to judicial lock up on 19.06.2003 for identification test, which was conducted by Muhammad Kazim Awan, learned Judicial Magistrate on 28.06.2003. During physical remand, accused Basharat Ali got recovered pistol 30-bore P-3 from his house on 22.07.2003 which was taken into possession by the Investigating Officer after preparing recovery memo (Ex.PD).

4.Having found the accused persons (respondents) guilty, the Investigating Officer prepared report under Section 173 of

Criminal Appeal No.706 of 2004 (Manzoor Hussain v. Basharat Ali etc).

Cr.P.C. and sent the same to the court of competent jurisdiction. The learned trial court formally charge sheeted the accused (respondents No.1 and 2) to which they pleaded not guilty and claimed trial.

5.The prosecution in support of the version, produced thirteen (13) witnesses. Ocular account of occurrence in this case has come out from the statements of Manzoor Hussain (PW-11) and Allah Ditta (PW-12) who are eye witnesses of instant case whereas Dr. Pervaiz Ahmad (PW-8) had conducted postmortem of deceased- Muhammad Azam alias Bhola-deceased and observed following injuries:-

1.A lacerated wound i.e. wound of fire arm entrance 3⁄4 cm x 1⁄2 cm on the back of right side of abdomen. This wound was 10 cm from the lumbar spine and 10 cm above from the hip joint margin of wound are inverted and blackening having corresponding holes in bunian. It produced a wound of exit. 1.A A lacerated wound i.e. fire of fire arm exit 1 1⁄2 cm x 1 1⁄2 cm left side of abdomen margin averted but not blackening.

Opinion.

“After postmortem, the doctor rendered his opinion that cause of death was hemorrhage shock which was due to injury No.1 and 1-A which was sufficient to cause death in ordinary course of nature.”

“Time between injuries and death was immediate and between death and postmortem examination was within 12 hours.”

Ex.PH is carbon copy of postmortem report along with its pictorial diagram Ex.PH/1, issued by him and bore his signatures.

The statements of remaining prosecution witnesses are formal in nature.

Criminal Appeal No.706 of 2004 (Manzoor Hussain v. Basharat Ali etc).

6.Learned Special Public Prosecutor has given up Muhammad Saleem, Akbar Ali, Muhammad Ayub and Aslam PWs being un-necessary and closed the prosecution evidence on 22.03.2004 after tendering reports of Chemical Examiner and Serologist as (Ex.PM) and (Ex.PN).

7.The accused (respondents No.1 and 2) were also examined in terms of Section 342 of Cr.P.C., wherein they opted not to appear as their own witnesses in disproof of the allegations levelled against them in the prosecution version. In response to the question why this case against him and why the PWs deposed against him, Basharat Ali-accused (respondent No.1) made the following deposition:-

“The prosecution has produced witnesses PW-3, 4, 7, 11 and 12, all of them are direct and close relatives of the deceased. The case was a blind murder committed at night time and was un-witnessed. The culprits were not previously known to PW-11 & 12 i.e. eye witnesses and as such they failed to state anything about the features of culprits which could enable them to identify culprits during identification parade test. The occurrence took place in Killa No.23 square No.52 owned by one Rana Ilyas whose dera is at a distance of only three houses from the house of complainant. The PWs are under the influence of said Rana Ilyas. The police in collusion and in connivance with said Rana Ilyas during investigation roped the accused falsely in case to save their own skin by getting tutored statement of PWs, 4, 7, 11, 12 recorded during trial.”

Whereas accused-Muhammad Rafique (respondent No.2) while replying the same question, made following deposition:- “This case is false one. It was a blind murder but the local police just to show his performance before the high ups me as

Criminal Appeal No.706 of 2004 (Manzoor Hussain v. Basharat Ali etc).

escape goat. I do not know even about the occurrence. PWs deposed against me while playing in the hands of I.O and local police.”

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 & 2), resulting into acquittal of the accused persons (respondents No.1 & 2).

9.The instant appeal was instituted on 29.04.2004. 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.From perusal of the evidence we find that alleged occurrence took place on 06.06.2003 at 9:00 p.m. when the complainant (PW-11), Allah Ditta (PW-12) and Muhammad Azam alias Bhola after taking meal went outside the house for roaming in the field of mangoes where two unknown accused persons were plucking the mangoes from the trees of Rana Ilyas, upon which Muhammad Azam alias Bhola asked from them as to who were they and why were they plucking the mangoes. On this accused made 4/5 fires from his pistol towards the complainant and brother of the complainant-Muhammad Azam alias Bhola. One fire shot landed on the right flank of Muhammad Azam alias Bhola and he fell down, who was shifted to Civil Hospital Dijkot where he succumbed to the injuries

11.There is no evidence regarding any source of light on the place of occurrence, in which the complainant and the witnesses had seen the accused persons. We noticed that the complainant (PW-11) had not mentioned age, physique features of the accused persons.

Criminal Appeal No.706 of 2004 (Manzoor Hussain v. Basharat Ali etc).

They had only a flying glimpse of the accused in the dark night. The prosecution has relied upon the evidence of identification parade conducted by Muhammad Kazam Awan, Special Judicial Magistrate (PW-5) on 25.06.2003. This identification parade had been held after 19 days of the occurrence. There is no dispute on the point that descriptions of the dummies were not mentioned in the report (Ex.PE). The accused were arrested by Allah Ditta (S.I. retired) PW- 13 on 18.06.2003 and were kept in the police lock up. The accused were produced before a Judicial Magistrate on 19.06.2003 and on the same day, they were sent to judicial lock up for identification parade. Admittedly both accused were put to identification parade held on 28.06.2003 jointly without observing the ratio approved by the courts. The delay in holding identification parade has not been explained by the prosecution. It is held by the Hon’ble Supreme Court of Pakistan in the case of “Shafqat Mehmood and others v. The State” (2011 SCMR 537) that:- “Delay of seven days in holding the identification parade after the arrest of accused had made the same doubtful.”

12.According to rules, the accused should have been intermingled with the strangers in the proportion approved by the courts. In the case of “Shabir Ahmed and 4 others v. The State”(1972 P.Cr.L.J 310) it is held that:

(a)Criminal trial---Identification--- Occurrence taking place at night and number of innocents mixed with suspects in identification parade not in proportion of 9 or 10 to 1--- Identification, held, not satisfactory.”

13.It is held by the Hon’ble Supreme Court of Pakistan in the case of “Shafqat Mehmood and others v. The State” (2011 SCMR 537) that:

Criminal Appeal No.706 of 2004 (Manzoor Hussain v. Basharat Ali etc).

”It is also settled principle of law that identification parade of each accused should be held separately otherwise confusion would be created.”

14.It is also in the prosecution evidence that Basharat Ali and Muhammad Rafique (respondents No.1 & 2) had made joint extra-judicial confession before Muhammad Yaqub (PW-7), Muhammad Saleem (given up PW) and Akbar Ali (given up PW) after eight days of occurrence. It is deposed by Muhammad Yaqub (PW-7) that:- “Eight days after the occurrence of the instant case, I had reached Dijkot in order to see my relatives Muhammad Saleem and Akbar Ali- PWs. Basharat Ali and Muhammad Rafique both accused present in court came to us and they stated that they had committed Qatl-e-Amd of Muhammad Azam. -----------On which, Refique said, I fired.”

Muhammad Yaqub (PW-7) also deposed as under: “I had stated in my statement before the police that suddenly Basharat Ali and Muhammad Rafique came there who were residents of Mohallah Rahmat Pura and I had seen them while coming and going to our relatives. Manzoor and Allah Ditta- PWs are my relatives in Chak No.263/RB P.S. Dijkot and I had seen them visiting Manzoor and Allah Ditta.”

The complainant Manzoor Hussain (PW-11) deposed that: “Yaqub has no other relatives in our village except out houses.”

Criminal Appeal No.706 of 2004 (Manzoor Hussain v. Basharat Ali etc).

15.From the above depositions of PW-7 and PW-11, it appears that before holding identification parade witnesses knew the accused persons (respondents No.1 and 2).

16.Another circumstance which also creates doubt about the involvement of the accused (respondents No.1 and 2) is that the accused (respondents No.1 and 2) had made joint extra-judicial confession. It is settled principle of law that joint extra-judicial confession is not admissible in evidence. Even otherwise, Manzoor Hussain (PW-11) and Allah Ditta alleged during identification parade that Basharat Ali (respondent No.1) fired at deceased-Muhammad Azam alias Bhola and PW-5 stated that witnesses stated that Muhammad Rafique (respondent No.2) was plucking the mangoes whereas Muhammad Yaqub (PW-7) deposed that both accused had made joint extra-judicial confession and stated that Muhammad Rafique fired at Muhammad Azam alias Bhola-deceased. All these facts are enough to prove that the identification parade and joint extra- judicial confession are highly doubtful and un-believable. There is no evidence regarding any source of light on the spot in which the complainant and the witnesses identified the accused persons. It is an admitted fact that deceased-Muhammad Azam alias Bhola along with his brothers went out of his house after taking meal for roaming in the mango field at 9:00 p.m. on 06.06.2003 and admittedly there was no source of light. There is no motive for causing the occurrence. As per site plan, the deceased-Muhammad Azam alias Bhola was present at point-1 whereas accused fired from point-2 and distance between point-1 and 2 is stated to be 3 karam whereas as per medical evidence, there is blackening on injury No.1. Blackening can not be caused from the distance of 3-karam (15 feet). In this way, there is conflict in ocular and medical evidence.

Criminal Appeal No.706 of 2004 (Manzoor Hussain v. Basharat Ali etc).

17.The depositions of eye witnesses PW-11 and PW-12 were also full of improvements and contradictions on all major and important factors are apparent.

18.Apart from above, it is noticed that according to the site plan (Ex.PG) the distance between deceased (present at point-1) was three 3-karams whereas as per medical evidence there is blackening on injury No.1 but there was no evidence to show that any injury was caused from a close range and blackening on the injury can not be caused from three karams. The medical evidence was in conflict with ocular testimony, thus the deceased did not receive injuries in the manner as stated by prosecution.

19.It is also noticed by us that it is alleged that one pair of sleeper (shoe) orange colour P-1/1-2 and one pair of tyre sole shoe black colour P-2/1-2 were also taken into possession by the Investigating Officer (PW-13) through recovery memo Ex.PL but same were not shown present in the site plan (Ex.PG) which further made case of the prosecution doubtful.

20.For what has been discussed above in the light of prosecution evidence, medical evidence and documentary evidence, the acquittal of respondents No.1 and 2 does not suffer from any illegality so as to call for our interference with the impugned judgment. The learned trial Judge has advanced valid and plausible reasons for recording acquittal in favour of respondents No.1 and 2. The judgment of acquittal does not call for any interference. The appeal is, therefore, dismissed being without merits.

(Mazhar Iqbal Sidhu) (Aalia Neelum) Judge Judge

Approved for reporting.

A.S.Khan