Abdul Sattar VS State

Stereo. H C J D A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT AT LAHORE

JUDICIAL DEPARTMENT

Criminal Appeal No. 1464 of 2003 Abdul Sattar v. The State etc

JUDGMENT

Date of Hearing: 14.10.2014_______________________________________ Appellant by: Mr. Ijaz Khalid Khan Niazi, Advocate for the appellants.__ Complainant by: Mr. Ghulam Hussain Malik, Advocate for the complainant._ State by: Mr.Munir Ahmad Sial, Deputy Prosecutor General._______ Aalia Neelum, J.- Appellant-Abdul Sattar by way of instant appeal, has challenged the acquittal of respondent No.2-Muhammad Ramzan recorded by the learned Sessions Judge, Mianwali vide judgment dated 15.07.2003 in case F.I.R. No.159/2002 dated 09.12.2002, offence under Section 302 of P.P.C., registered at Police Station, Hernoli, District, Mianwali.

2.Briefly, the facts narrated in the crime report (Exh.PF) are that on 09.12.2002 at about 4.20 p.m. the complainant (PW-7) was sitting in the courtyard of his house along with his brother, namely, Rab Nawaz (deceased), Sher Muhammad (PW-8) and Muhammad Iqbal (PW-given up) and were chatting when they suddenly heard fire shot reports. The complainant, Rab Nawaz, Sher Muhammad and Muhammad Iqbal came out whereas Rab Nawaz was few steps ahead of the complainant, Sher Muhammad and Muhammad Iqbal, when Rab Nawaz reached at a distance of a few paces from his gate, from the northern side, Muhammad Ramzan-respondent No.2 armed with rifle emerged there, challenged Rab Nawaz, who tried to turn back when Muhammad Ramzan accused fired with his rifle at Rab Nawaz, which landed on upper side of right eye on the forehead. He fell down. The occurrence was witnessed by the complainant (PW-7), Sher Muhammad (PW-8) and Muhammad Iqbal (PW-

Abdul Sattar v. The State.

given up). After the occurrence, the accused fled away. The complainant and prosecution witnesses shifted Rab Nawaz in injured condition to R.H.C., Hafizwala and on reaching the hospital Rab Nawaz succumbed to the injuries. By leaving Sher Muhammad (PW-8) with the dead body at R.H.C Hafiz-wala, the complainant went to the police station Hernoli and reported the incident.

3.Motive behind the occurrence is stated to be that twenty years prior to the instant occurrence, father of Muhammad Ramzan-accused was murdered by Faiz Ahmad, maternal uncle of the deceased and on that account this occurrence had taken place.

4.On the basis of complaint of the complainant, F.I.R. (Exh.PF) was chalked out by Muhammad Iqbal, S.I. (PW-9). After registration of case, Muhammad Iqbal, SI. (PW-9), the Investigating Officer visited to R.H.C. Hafiz Wala, where dead body of Rab Nawaz was lying and prepared injury statement as “Exh.PD” while dead body of the deceased was escorted by Ghulam Muhammad Constable for postmortem examination. Thereafter, the Investigating Officer (PW-9) visited the place of occurrence and got recorded statements of the prosecution witnesses, prepared site plan without scale (Exh.PH). He also took into possession bloodstained earth from the place of occurrence while preparing recovery memo (Exh.PG). After postmortem of the deceased, Ghulam Muhammad Constable (PW-3) handed over to him last worn clothes of the deceased i.e. Shirt P-1, Shalwar P-2 and Bunyan P-3. Then the recovery memo (Exh.PE) was prepared about last worn clothes of the deceased. On 15.12.2002 Draftsman handed over him the scaled site plan (Exh.PA) and Exh.PA/1). On 28.12.2002, the Investigating Officer also arrested the accused- Muhammad Ramzan.

5.Having found the accused (respondent No.2) 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 12.04.2003 formally charge-sheeted the accused (respondent No.2) to which he pleaded not guilty and claimed trial.

Abdul Sattar v. The State.

6.The prosecution in support of the version, produced nine (09) witnesses. Ocular account of occurrence in this case has come out from the statements of Abdul Sattar (PW-7) and Sher Muhammad (PW-8), whereas Dr. Hafiz Bashir Ahmad (PW-2) had conducted postmortem of deceased-Muhammad Ramzan on 09.12.2002 and observed as under:-

1.A firearm wound of entry 0.5 x 0.5 cm on the right side of forehead, with blackening of margins, 1.9 cm above the right eye-brow and 5.5 cm above and right to the bridge of the nose.

2.A firearm wound of exit 1.7 x 1.5 cm on the left side of skull, 2.5 cm above the left ear pinna, and 8 cm behind the outer angle of left eye.

The brain matter was coming out from injury No.2 whereas blood was coming out from injury No.1.

Opinion.

“the death was occurred due to injuries No.1 & 2 caused by firearm causing damage to brain, haemorrhage, shock which led to death. All the injuries were ante mortem and were sufficient to cause death in the ordinary course of nature.”

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

Exh.PB is carbon copy of postmortem examination along with its sketch. Exh.PB/1, issued by him and bears his signatures. The statements of remaining prosecution witnesses are formal in nature.

7.On 06.06.2003, learned Deputy District Attorney had given up Muhammad Yousaf (PW) as being unnecessary. On 07.06.2003, learned Assistant District Attorney had given up Muhammad Iqbal (PW) being un- necessary. On 14.05.2003 learned Deputy District Attorney closed evidence of

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the prosecution while tendering report of the Chemical Examiner as (Exh.PJ) and report of the Serologist as (Exh.PK).

8.The accused (respondent No.2) 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, however, he opted to lead evidence in his defence. In response to the question why this case against him and why the PWs deposed against him, Muhammad Ramzan- accused (respondent No.2) made the following deposition:- “I am innocent and so was declared in all the three investigations conducted in presence of both the parties. The true facts are that prior to the occurrence I had recorded complaint at police station, Hernoli, against Mst. Munawar Bibi, wife of my brother Ahmad Yar, her aunt Hayat Bibi, her maternal uncle Abdul Malik and Zafar Iqbal under Section 379, 34 PPC for committing theft in the house of her own husband Ahmad Yar of jewellary/ornaments to the tune of lacs. The accused were found guilty and they were admitted to bail and challaned in the aforesaid case. My brother Ahmad Yar then was in the Army at the time of theft incident. He arrived on the day of occurrence and feeling aggrieved of the conduct of his wife he fired at Abdul Maalik aforesaid and Ghulam Rasool with Klashnikov and they sustained injuries. After that he went to the house of Munawar Bibi which is adjacent to the house of Ahmad Yar and started firing at her but Rab Nawaz intervened and he received the fatal shot. Ahmad Yar escaped from the village with the weapon of offence and he is not traceable till today.

The complainant party falsely got registered two separate cases i.e. one against myself and another against my brother Ahmad Yar narrating the common motive in both the case.

On the application of the complainant, the re- investigation was entrusted to Muhammad Saleem Warraich, DSP who too endorsed the earlier findings of the local police. I had no motive whatsoever against the deceased or his family. Feeling aggrieved

Abdul Sattar v. The State.

of theft case, the complainant falsely implicated me in this case.”

9.In defence, Khan Amir, SI./S.H.O appeared as DW-1 and Muhammad Saleem, DSP/S.D.P.O as DW-2.

10.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 (respondent No.2), resulting into acquittal of the accused (respondent No.3).

11.As the appeal pertains to the year 2003 and this Court has gone through the docket as per acknowledgment for disposal of the old cases, therefore, the case cannot be left open, as such the arguments advanced by the learned Law Officer, present in Court, have been heard and perused the available record minutely annexed with this appeal.

12.The admitted fact is that the deceased-Muhammad Ramzan and Abdul Sattar (PW-7) are real brothers whereas PW-8, Sher Muhammad is close relative of the deceased. The accused-Muhammad Ramzan is brother of Muhammad Yar who was son-in-law of the complainant and husband of Mst. Munawar Bibi. It is also an admitted fact that father of the accused-Muhammad Ramzan was murdered and a criminal case was registered against Faiz Ahmad who is maternal uncle of the deceased-Rab Nawaz. Apart from this, Faiz Ahmad, three other accused were also nominated in the case of murder of accused’s father who were Nawab Khan (brother of deceased-Rab Nawaz), Waris (son of Faiz Ahmad) and Haji (brother of Faiz Ahmad). Said Faiz Ahmad was convicted and sentenced whereas rest of the accused were acquitted. Faiz Ahmad was acquitted on the basis of the compromise. In lieu of compromise, Mst. Munawar Bibi, niece of the complainant was given in marriage of Muhammad Yar (accused Muhammad Ramzan’s brother), whereas daughter of Faiz Ahmad, Mst. Pathani was given in marriage of Muhammad Iqbal (accused-

Abdul Sattar v. The State.

Muhammad Ramzan’s brother). Out of the wedlock of Mst. Munawar Bibi one child, namely, Muhammad Ismail was born whereas six children were born out of wedlock of Mst. Pathani and one daughter of Mst. Pathani was married. Admittedly, Mst. Pathani resides with her husband Muhammad Yar (brother of the accused) who was employed in the Army and he was on leave on the day of occurrence. It is also an admitted fact that theft was committed in the house of Muhammad Yar, in his absence accused-Muhammad Ramzan got lodged a criminal case against Mst. Munawar Bibi and Mst. Hayat Bibi, niece and real sister of the complainant respectively, Abdul Maalik (brother of the complainant) and others under Section 379, 34 P.P.C.

13.In this background we have carefully perused the record produced before us. It is settled position of law that in appeal against acquittal, the appellate court is entitled to re-appreciate the evidence on record. However, having done so, the case of the prosecution must be judged as a whole having regard to the totality of the evidence and if the view recorded by the learned trial court while acquitting the accused is a possible and reasonable view based on the evidence on record, the order of the acquittal would not be reversed.

14.In the instant case, on the close scrutiny of the statements of Abdul Sattar- complainant (PW-7), statement of Dr.Hafiz Bashir Ahmed (PW-2) and postmortem report (Exh.PA), it appears that oral evidence in the case is inconsistent with the medical evidence which shows that eye witnesses were not present at the spot. It is specific case of the prosecution that the deceased was shifted to R.H.C. Hafiz Wala where he expired. Abdul Sattar (PW-7) deposed during cross-examination that:-

“The deceased died within 2-3 minutes after reaching in Hafiz Wala Hospital.”

It is also case of prosecution as given by both the eye witnesses in their deposition in the court that the accused fired from the distance. In this regard, Abdul Sattar (PW-7) deposed that:-

Abdul Sattar v. The State.

“I pointed out to the police as well as to the draftsman at the spot about the place of presence of the accused and the deceased at the time of firing and the distance was 11 Karams in between.”

As per site plan (Exh.PA) distance between point-1 and point-2 is 60 feet.

15.But the medical evidence and site plan showed a different picture. We have carefully perused the postmortem report and also injury report of the deceased-Rab Nawaz along with the testimony of Dr. Hafiz Bashir Ahmed (PW-7) and it appears to us that in the postmortem report (Exh.PB) injury No.1 has been described as follows:-

“A firearm wound of entry 0.5 x 0.5 cm on the right side of forehead with blackening of margins, 1.9 cm above the right eye-brow and 5.5 cm above the right to the bridge of the nose.”

16.The postmortem report (Exh.PB) on the record, shows that probable time that elapse between injuries and death was immediate. PW-2 Dr. Hafiz Bashir Ahmed has stated the same facts in his deposition in the court. Therefore, both postmortem report as well as testimony of PW-2, Dr.Hafiz Bashir Ahmed show that there was blackening around the wound which had been caused on the forehead of the deceased-Rab Nawaz above right eye-brow and the deceased expired immediately.

17.It is deposed by PW-7 Abdul Sattar that the distance between the deceased and accused was 11 Karams and as per site plan (Exh.PA) distance between point-I and point-2 is 60 feet, yet in the postmortem (Exh.PB), it is mentioned that there was blackening on injury No.1. In our opinion, the distance of injury No.1 mentioned in site plan as well as stated by Abdul Sattar (PW-7) is absolutely incorrect as there was blackening of margins and such blackening can not be caused from the distance stated by eye witness Abdul Sattar (PW-7) and such injuries could have been caused from within a distance of 4 feet. Having given out careful consideration to the evidence of PW-2,

Abdul Sattar v. The State.

PW-7 and perusal of site plan (Exh.PA) and postmortem report (Exh.PB), we are of the opinion that the injury sustained by the deceased-Rab Nawaz having been fired from a distance of 4 feet and therefore, there was inconsistency between the ocular and medical evidence on this point. So, the ocular account is not admissible in evidence, therefore, it is not trustworthy and reliable. Even though the death of the deceased-Rab Nawaz is homicidal but on the basis of the material available on record, the prosecution has not proved that respondent No.2 is guilty under Section 302 P.P.C. beyond reasonable doubt.

18.Besides above, findings on the ocular account and medical evidence, it is vividly clear from the record that Abdul Sattar (PW-7) deposed during cross- examination that he had not stated in Exh.PF that I left the dead body under the care of Haji Ghulam Muhammad and Muhammad Yousaf. Abdul Sattar (PW-7) also admitted during cross-examination that he had stated that he left Sher Muhammad (PW-8) with the dead body and the statement of Sher Muhammad (PW-8) was recorded by the police at the spot and was not recorded in the hospital.

19.It is manifest that Haji Ghulam Muhammad (PW-6) was relative of the deceased, he deposed that Rab Nawaz-deceased was his “Khalazad” and he identified his dead body at the time of autopsy but he did not depose that the complainant left him with the dead body and went to the police station. On the other hand, the complainant (PW-7) in Exh.PF specifically stated that he left Sher Muhammad (PW-8) with the dead body whereas Sher Muhammad (PW-8) did not state a single word in this regard, which creates doubt about its presence at the place of occurrence especially when statement of Sher Muhammad (PW-8) was not recorded at hospital and same was recorded at place of occurrence.

20.We have gone through the statements of the witnesses, F.I.R. and other documentary evidence and record of case to make sure whether findings of the learned trial court is correct and found that there is no mistake in following findings and findings are according to record.

Abdul Sattar v. The State.

(a)It has been held by the learned trial court that at the time of registration of this case, PW-8 stated that his statement was recorded in the police station at 6.00 p.m. As already observed, Sher Muhammad was left with the dead body in the hospital as per contents of F.I.R. which is material improvement.

(b)It has also been held by the learned trial court, the manner in which the case was registered and the improvements made by the witnesses and their admitted animosity with the present accused had created different circumstances for reliance of their testimony.

(c)It has been held by the learned trial court that witnesses were inimical towards the accused. PW-8 categorically stated that he felt annoyed with the accused after the case of theft while PW-7 complainant also admitted in cross- examination that he felt aggrieved of that theft case.

(d)The learned trial court has also held that conduct of the complainant (PW-7) is unnatural as that after half an hour of receiving injuries of said Abdul Maalik, the witness came to know about this fact but did not meet him for 6-7 days.

(e)It has been held by the learned trial court that both the witnesses concealed certain facts with reference to the receiving of injuries by Abdul Maalik, the real brother of the complainant and near relative of the other witness Sher Muhammad at the hands of one Muhammad Yar. Such concealment of facts would create doubts about the truthfulness of the witnesses.

In view of aforesaid facts and circumstances, we are satisfied that the prosecution has failed to prove its case against respondent No.2 beyond all reasonable doubt.

Abdul Sattar v. The State.

21.The Hon’ble Supreme Court of Pakistan has laid down time and again that in the case of acquittal, there is a double presumption of innocence in favour of the accused and there must be substantial and compelling reasons for holding that the trial court was wrong in rendering the findings. In the light of above discussion regarding the factual position and the evidence, we have approved the findings arrived at by the learned court below, we find no compelling and substantial reasons to interfere with the judgment of acquittal passed by the learned trial court.

22.Considering the total circumstances of the case, we are of the opinion that the appeal lacks merits and is liable to be dismissed. Accordingly, appeal in hand is dismissed.

(Mazhar Iqbal Sidhu) (Aalia Neelum) Judge Judge

Approved for reporting.

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