Stereo. H C J D A 38.
Judgment Sheet
IN THE LAHORE HIGH COURT LAHORE
JUDICIAL DEPARTMENT
Criminal Appeal No.332 of 2012
(Muhammad Nadeem alias Nadeem Hussain v. The State
etc.)
Criminal PSLA No.85 of 2012
(Muhammad Ameer v. Naveed Ahmad)
and
Murder Reference No.100 of 2012
(The State v. Muhammad Nadeem)
JUDGMENT
Date of hearing: 31.01.2017
Appellant by:
M/S Azam Nazeer Tarar and Qulandar
Hussain Bhatti, Advocates.
Complainant By: Ch. Muhammad Riaz Ahmad, Advocate.
State by:
Mian Muhammad Awais Mazhar, Deputy
Prosecutor General
----------------------------------Ch. Abdul Aziz, J. This single judgment shall dispose of
Criminal Appeal No. 332 of 2012 filed by Muhammad Nadeem
alias Nadeem Hussain (against his conviction), Criminal Petition
for Special Leave to Appeal No.85 of 2012 filed by Muhammad
Ameer (against acquittal of Naveed Ahmad and 3 others) and
Murder Reference No. 100 of 2012 sent by the learned
Additional Sessions Judge, Depalpur for the confirmation or
otherwise of the death sentence awarded to appellant,
Muhammad Nadeem. The appellant was convicted and sentenced
by the trial court vide judgment dated 13.02.2012 as under:Convicted under section 302 (b) PPC and was
awarded death sentence, he was also ordered to pay
an amount of Rs.200,000/- as compensation u/s 544A Cr.P.C to the legal heirs of the deceased, in the
event of default in the payment of the amount the
appellant was ordered to suffer imprisonment for a
period of 6-monhts S.I. and in further default thereof
Criminal Appeal No.332 of 2012
Criminal PSLA No.85 of 2012
Murder Reference No.100 of 2012
2
the amount of compensation was ordered to be
recovered through arrears of land revenue.
.
2.
The instant Murder Reference and the connected appeal
along with Criminal Petition for Special Leave to Appeal are the
result of criminal complaint titled ‘Muhammad Ameer v.
Muhammad Nadeem and 4 others’ arising out of case FIR
No.641/2005 dated 03.12.2005 registered under sections
302,148,149 PPC (amended under section 319 PPC) at Police
Station Depalpur, District Okara.
3.
The FIR was registered on the report of Muhammad
Ameer, father of deceased (PW.1) and the facts as can be culled
from the complaint (Ex.DA) and FIR (Ex.PD/1) are as under:“I am a farmer by profession. On 02.12.2005 at about 5:00
p.m., my son Riaz Raza along with Mustafa son of
Muhammad Sharif, Muhammad Akram son of Raham came
to attend the marriage of Aamir Khan son of Mazhar Khan
and after attending the same they were sitting with Rashid
Khan son of Mazhar Khan at Khalil Abad Colony, Depalpur.
After some time, the guests from Lahore namely Malik
Naveed, Wasif, Khalil Ahmed and Saqib along with Nadeem
son of Haji Muhammad Hussain came there while boarding
on a Carry Van and after taking my son Riaz Raza went at
the dera of Nadeem Watoo. At 6 O’clock (in the morning),
Nadeem Watoo informed Rashid Khan through telephone
that Riaz Raza had been met a fire shot who was shifted to
Jinnah Hospital, Lahore for treatment. This information was
further conveyed to us by Rashid, upon which, we reached
Jinnah Hospital, Lahore. Upon query, the doctor told us that
in the night some unknown persons had brought dead body
while saying that their man was injured and upon checking,
it was found that the injured had died. We imparted this
information to Police Station Saddar Depalpur at 12:30 p.m.
today and while taking the police went to Jinnah Hospital,
Lahore and after receiving the dead body came back. My son
Riaz Raza was murdered by Nadeem Watoo, Malik Naveed,
Wasif, Khalil Ahmed and Saqib in consultation with each
other”.
3.
In pursuance of the information furnished by the
complainant qua the murder of his son, Bashir Ahmad SI (CW.1)
proceeded to Jinnah Hospital, Lahore for bringing the dead body
of Riaz Raza (deceased) and after bringing the same, he recorded
the statement of complainant (Ex.DA) and sent the same to the
police station for the registration of FIR. Subsequently, he
Criminal Appeal No.332 of 2012
Criminal PSLA No.85 of 2012
Murder Reference No.100 of 2012
3
proceeded to crime scene and prepared the inquest report
(Ex.CW.1/A). The dead body of the deceased was entrusted to
Abdul Sattar 587/C for postmortem examination. During the spot
inspection, he collected blood stained earth vide recovery memo
(Ex.CW.1/C). He on 04.12.2005 recorded the supplementary
statement of complainant Muhammad Ameer (Ex.CW.1/E) as
well as the statements of Muhammad Akram and Ghulam
Mustafa Ex.DB and Ex.DC respectively on 04.12.2005.
Manzoor Ahmad SI (CW.8) on 07.12.2008 arrested
appellant Nadeem. During the course of investigation, he
concluded that it was not a case of intentional murder rather it
was an accidental death, resultantly he recommended for the
submission of challan under section 319 PPC but upon the
objections of the prosecution branch, the report under section
173 Cr.P.C . was submitted under sections and 302,319,148,149
PPC.
Feeling aggrieved by the conduct of the local police,
complainant Muhammad Ameer (PW.1) preferred to file a
private complaint on which the trial commenced. The contents of
the complaint as narrated by the complainant in his private
complaint (Ex.PA) are as under:“On 02.12.2005 at 5:00 p.m., Mustafa son of Muhammad
Sharif, my son Riaz Raza and Muhammad Akram son of
Rahm were present in the Dera of Mazhar Khan, where
accused persons came on the Dala and took my son Riaz
Raza with them to the Dera of Muhammad Nadeem accused.
I became worried as there was dispute of money between
Muhammad Nadeem accused and my son Riaz Raza,
whereupon I along with Mustafa and Muhammad Akram
reached the Dera of Muhammad Nadeem at 12:10 p.m. and
saw that Muhammad Nadeem armed with .12 bore carbine
was abusing my son Riaz Raza, whereas the remaining
accused Naveed Ahmad, Khalil Ahmad, Wasif Shah and
Saqib were armed with pistols-30 bore and were raising
lalkaras. Within our view Nadeem accused made fire shot
with his carbine which hit on the abdomen of my son on left
side near the flank and he fell down. All the accused persons
fled away from the spot with their respective weapons of
offence. I took my son Riaz Raza in injured condition to the
hospital but he was referred to Jinnah Hospital, Lahore
where he succumbed to the injuries. My son Riaz Raza was
murdered by Nadeem Watoo etc in consultation with each
other on the demand of Rs.50,000/-”.
Criminal Appeal No.332 of 2012
Criminal PSLA No.85 of 2012
Murder Reference No.100 of 2012
4.
4
The appellant and his co-accused were charge sheeted in
private complaint on 19.08.2010 under sections 302,148,149
PPC, to which, they pleaded not guilty and claimed trial. During
the trial, in order to prove its case against the appellant and his
co-accused, the prosecution produced as many as four
prosecution witnesses i.e. Muhammad Ameer complainant
(PW.1), Muhammad Akram (PW.2) and Ghulam Mustafa (PW.3),
eye-witnesses of the occurrence and Dr. Abdul Aziz (PW.4) who
conducted the postmortem examination on the dead body of the
deceased, whereas trial court examined eleven persons as CWs
which includes Investigating Officers i.e. Bashir Ahmed SI
(CW.1), Mahmood Ahmad Inspector (CW.4), Manzoor Ahmad SI
(CW.8) and Draftsman Malik Muhammad Saleem Ullah (CW.2).
5.
Muhammad Ameer, complainant, (PW.1) when appeared
before the trial court, he deposed as under (reproduced in
verbatim):“Riaz Raza deceased was my son. About four years and nine
months ago at about five P.M my son Riaz Raza along with
Mustafa and Muhammad Akram PW was present in the Dera
of Mazhar Khan situated in Khalil Abad Colony, Depalpur.
At about 8 P.M. Mustafa and Akram PWs told me at my
house that my son Riaz Raza along with Muhammad
Nadeem, Naveed Ahmad, Khalil Ahmad, Wasif Ali Shah
and Saqib Ashraf accused present in the Court had gone to
the Dera of Nadeem accused. Again said Saqab accused is
not present in the Court and is since proclaimed offender. I
became anxious as there was dispute of money between
Muhammad Nadeem accused and my son Riaz Raza because
Nadeem accused had borrowed Rs.50,000/- from Riaz Raza
and on the demand of that money there was dispute between
Muhammad Nadeem and Riaz Raza. I had been waiting for
the return of my son Riaz Raza, after 2/3 hours I along with
Mustafa and Akram PWs went at the Dera of Nadeem
accused. There I saw that my son was present there.
Muhammad Nadeem accused was armed with carbine and
the other accused Naveed, Khalil, Wasif Shah and Saqab
(since P.O.) armed with pistols were present there. Within
our view Nadeem accused made fire with his carbine which
hit on the abdomen of my son on left side near the flank and
he fell down. All the accused then fled away with their
respective weapons. I took my son Riaz Raza in injured
condition along with the PWs to the hospital, where my son
was medically examined and then was referred to Lahore,
and when we reached in the hospital he succumbed to the
injuries.
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Criminal PSLA No.85 of 2012
Murder Reference No.100 of 2012
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Motive for the occurrence was demand of money of
Rs.50,000/- as mentioned above.
I orally made statement to the police in the hospital and
stated the above said story to the police but the police did not
record my statement correctly and obtained my thumb
impressions on blank paper and thereafter recorded incorrect
version. During the investigation I and my PWs had been
stating as today I have stated about the occurrence. The
accused remained absconders for four years. The police
became collusive with the accused present in Court and after
accepting illegal gratification by spoiling my case challaned
under section 319 PPC and not challaned under section 302
PPC. Hence, I filed private complaint which is Ex.PA, which
was read over to me and in token of its correctness I thumb
marked the same”.
6.
The medical evidence was furnished by Dr. Abdul Aziz
(PW.4) who on 03.12.2005 at about 2:20 a.m., medically
examined Riaz Bhutta (during his life time) and noted the
following injuries on his person:1).
2).
Lacerated wound 4 c.m. x 3 c.m. x deep going x
margins inverted at left side of upper abdomen (Entry
wound).
Lacerated wound 1 c.m. x ½ c.m. x deep going x
margin inverted at upper part and outer side of right
side close to growing (Exit Wound).
The doctor kept the nature of injuries under observation.
According to him, the probable duration of injuries was within
one hour and the kind of weapon used was firearm.
On 03.12.2005 at 11:30 p.m., he conducted the
postmortem examination on the dead body of Riaz Raza and
noted the following injuries:1).
2).
Lacerated wound 4 c.m. x 3 c.m. x deep going x
margins inverted at left side of upper abdomen (Entry
wound).
Lacerated wound 1 c.m. x ½ c.m. x deep going x
margin inverted at upper part and outer side of right
thigh close to growing.
According to the opinion of the doctor, the injuries were caused
with firearm and injury No.1 was described as entry wound
whereas No.2 was declared as an exit wound. During the autopsy
some metallic pallets were recovered from the body of the
deceased. The injuries were observed as ante mortem which led
to shock and death and was described as sufficient to cause death
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Criminal PSLA No.85 of 2012
Murder Reference No.100 of 2012
6
in the ordinary course of nature. The probable duration between
death and postmortem was stated to be about 17 to 18 hours.
7.
The statement of the appellant was recorded under section
342 Cr.P.C, wherein, he denied the allegations levelled against
him. In response to question No.1, wherein the appellant was
confronted with the nature of ocular account furnished by the
three eyewitnesses, his reply was as under:“It is incorrect. The complainant and PWs namely Mustafa
and Muhammad Akram were not present at the scene of
occurrence. Many respectable from the area appeared on
behalf of me during investigation of this case. They also
tendered their affidavits about my innocence having no
connection with the alleged offence. I alongwith Malik
Naveed, took Riaz Raza deceased in injured condition in the
THQ Hospital Depalpur. The deceased Riaz Raza was
referred to Jinnah Hospital and then I and Naveed accused
took him in the ambulance to Jinnah Hospital Lahore, where
my name was also inserted in the admission register of that
hospital, who brought the deceased in the hospital at Lahore.
I.O. took in possession the attested copy of both those
documents after making verification. The documents were
filed/attached with the report u/s 173 Cr.P.C. as evidence in
this case. The driver of ambulance Haji Irshad also appeared
during the investigation and submitted his affidavit about the
above mentioned facts. Rashid Khan, the brother of
bridegroom also submitted his affidavit during the
investigation stating therein that the complainant,
Muhammad Akram and Mustafa PWs were neither
participant nor invited in the marriage of his brother. The
deceased was our fast friend and they were invited for
haunting by Riaz Raza deceased and the deceased requested
me to afford them stay at night in my Dera at Mauza
Lalupur, so that they might start their journey for haunting
from my Dera, which was suitable place for their stay
according to the deceased. At the time of occurrence, I was
in my house preparing food/super and in the Dera/the place
of occurrence, the deceased was in the company of other
accused, except me. During the aerial firing by the remaining
accused, and checking of the weapons, which was brought
by them from Lahore for haunting, a shot accidently hit to
the deceased which was warranted in his death. I have tried
my level best to save his life by taking him to the hospitals,
but un-luckily he could not survive. It is an accidental and
not an intentional murder. The complainant was informed
about this occurrence by Rashid Khan on my telephone when
the deceased was near the Jinnah Hospital for treatment. The
complainant after two days i.e. 04.12.2005 changed his
version and nominated me as an accused attributing the fatal
shot to the deceased and on the same day, the statements of
PWs Muhammad Akram and Mustafa were recorded by the
IO, after due deliberation in order to implicate me falsely for
the purpose of black-mailing. There was no enmity between
me and the deceased; rather it was found during investigation
that I and other co-accused were the friends of the deceased.
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Criminal PSLA No.85 of 2012
Murder Reference No.100 of 2012
7
Motive was also not established during the investigation. As
far as the presence of PWs is concerned, it was too not
established at the scene of occurrence, during investigation.
In fact, it is a case of accidental death.”
Similarly in respondent to question “why this case against you
and why the PWs deposed against you”, the appellant replied as
under:“The PWs are related inter se and they have falsely
deposed against me for black-mailing. Their statements
were recorded by the police after two days of the
occurrence but changing their first version in the
statement of the complainant on the basis of which, the
FIR, which clearly shows that the complainant and the
PWs have changed their original version due to blackmailing and especially attributed the fatal shot to me,
keeping in view my financial position as a Zimindar in
the area”.
8.
The appellant did not opt to appear as a witness under
section 340 (2) Cr.P.C. However, he produced six persons in his
defence. Altaf Hussain Record Keeper (DW.1) produced the
original record emergency (patients) outdoor of THQ Hospital,
Depalpur for the year 2005. Dr. Shahid Farooq (DW.2) stated
before the Court that he attested the copies Ex.DD, according to
the original record which was produced before the trial court.
Muhammad Jameel Record Keeper (DW.3) produced the original
reception register for the year 2005 for the period from
02.12.2005 to 14.12.2005. Dr. Muhammad Saeed Addl.M.S.
Jinnah Hospital, Lahore (DW.4) deposed before the trial court
that the certified copy of the entry in the name of Riaz patient
(Ex.DE) has been attested by him and according to the record
Riaz was brought to hospital in an injured condition by Nadeem
Watoo (appellant) at 6:01 a.m. on 03.12.2005. Rashid Khan
(DW.5) deposed before the trial court to the effect that he
received telephonic call from Nadeem appellant who informed
that Riaz (deceased) had sustained a fire shot accidently and he
had been referred to Jinnah Hospital, Lahore and Nadeem
appellant also asked the witness to convey the information to the
legal heirs of Riaz (deceased) and he accordingly informed the
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Criminal PSLA No.85 of 2012
Murder Reference No.100 of 2012
8
father and brother of the deceased about the incident. He also
stated this fact before the Investigating Officer and also
submitted affidavit in this regard. Haji Irshaad Ahmad (DW.6)
was the driver of the ambulance and he narrated before the trial
court the efforts made by Nadeem appellant and Naveed
(acquitted co-accused) for saving the life of the deceased.
8.
After the conclusion of trial, the learned trial court while
acquitting co-accused namely Naveed Ahmad, Wasif, Saqib and
Khalil ur Rehman
convicted and sentenced the appellant as
afore-stated, hence, the Appeal and Murder Reference.
9.
Learned counsel for the appellant contended that:i. That there is an inordinate delay of about
seventeen hours in the registration of FIR,
which remained unexplained.
ii. That the appellant was convicted in a private
complaint which was instituted after about
four years of the occurrence.
iii. That the ocular account was furnished by the
PWs who were not only related with the
deceased but were also found to be chance
witnesses.
iv. That the appellant took a specific plea of
death by accident and led confidence
inspiring defense evidence but the same was
discarded, without there being any legally
justifiable reason.
v. That the medical evidence runs contrary to
the ocular account furnished by the witnesses.
10.
On the other hand, the learned Deputy Prosecutor General
assisted by the learned counsel for the complainant vehemently
controverted the arguments advanced by the learned counsel for
the appellant and submitted that;
Criminal Appeal No.332 of 2012
Criminal PSLA No.85 of 2012
Murder Reference No.100 of 2012
(i)
9
The appellant is specifically nominated in
FIR and that too in reference to his role in the
commission of crime.
(ii)
The guilt of the appellant stands proved and
that too on the basis of natural and confidence
inspiring evidence.
(iii)
The PWs have no enmity with the appellant,
hence, there is no reason to discard their
evidence.
(iv)
The delay, if any, in the registration of the
FIR is fully explained by the prosecution,
hence no adverse inference can be drawn.
(v)
The medical evidence is in consonance with
the ocular account and is rightly relied upon
by the learned trial court.
11.
Arguments heard and record perused with the able
assistance of the learned counsel for the respective parties as well
as the learned law officer.
12.
The prosecution case, so to speak primarily hinges upon
the evidence of Muhammad Ameer (PW.1), Muhammad Akram
(PW.2) and Ghulam Mustafa (PW.3) who furnished eyewitness
account of the occurrence. The abscondance of the appellant and
the motive was taken as a corroboratory piece of evidence. The
medical evidence was furnished by Dr. Abdul Aziz (PW.4).
Contrary to it, the appellant took a specific plea of death by
accident, the detail of which since already stands mentioned
above, hence no useful purpose will be served to recapitulate it.
However, it is important to mention here that in support of his
defence plea, the appellant produced as many as six defence
witnesses along with some documentary evidence.
13.
The unfortunate occurrence which led to the registration of
instant
FIR
took
place
on
the
intervening
night
of
02/03.12.2005. For this occurrence, the law was set in motion
through FIR No.641/2005 (Exh.DA/1) which was registered on
Criminal Appeal No.332 of 2012
Criminal PSLA No.85 of 2012
Murder Reference No.100 of 2012
10
03.12.2005 at about 8:10 p.m. on the statement of Muhammad
Ameer (PW.1). Admittedly there is a delay of about 15/16 hours
in the registration of FIR. The perusal of Exh.DA/1 shows that
the occurrence was not witnessed by any of the three
eyewitnesses produced during the trial. However, through a
supplementary statement (Exh.CW.1/E) Muhammad Ameer
(PW.1) took a somersault by claiming that he along with
Muhammad Akram (PW.2) and Ghulam Mustafa (PW.3)
witnessed the occurrence. It has been observed that during
examination-in-chief, initially he disowned the complaint
(Exh.DA) by saying that the police obtained his thumb
impressions on a blank paper and thereafter recorded his
incorrect version. This stance of Muhammad Ameer (PW.1)
stands belied from the record. In his supplementary statement
(Exh.CW.1/E), it is specifically mentioned that at the time of
registration of FIR, since he was mentally up-set hence, he could
not narrate the actual facts. Nowhere in the supplementary
statement, he stated that his thumb impression was obtained on
the blank paper. Moreover, during the course of his crossexamination, he himself negated and contradicted his abovementioned stance by admitting the contents of complaint
(Exh.DA). The relevant extract of his testimony is being
reproduced below:“I submitted an application Ex.DA for the registration of the
case at 9/10 P.M. It is correct that Ex.DA bears my thumb
impression and it is the same application which I gave to the
police”.
He was also confronted with the contents of Exh.DA, in
reference to the improvements which he made during the course
of his examination-in-chief. Surprisingly, he raised no objection
regarding the contents of Exh.DA even at that time. In fact, at no
point of time, during his cross-examination, he reiterated his
claim that he affixed his thumb impression on a blank paper. In
this view of the matter, we are of the view that the FIR
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Criminal PSLA No.85 of 2012
Murder Reference No.100 of 2012
11
(Exh.DA/1) was registered on the basis of a complaint (Exh.DA)
prepared on the statement of Muhammad Ameer (PW.1). In this
backdrop, this is an admitted fact that the matter was reported to
the police with a substantial delay of about 17-hours, for which
no plausible explanation was brought on record. Whenever there
is a delay in reporting the matter to the police, it casts a big doubt
about the veracity of the story incorporated in the crime report
and for this reason any evidence produced on the basis thereof is
to be examined with great care and caution. On the question of
delay in the registration of FIR, reference can also be made to the
cases of Muhammad Sadiq v. The State (2017 SCMR 144) and
Wajahat Ahmed and others v. The State and others (2016 SCMR
2073).
14.
The ocular account in the instant case was furnished by
three witnesses mentioned above. The crime scene is situated in
village Lalupur, whereas Muhammad Ameer (PW.1) is resident
of Chah Bhutianwala, Dakhli, 38-D, Depalpur. The inter se
distance between the two places is about 12-kilometers.
Similarly, Muhammad Akram (PW.2) and Ghulam Mustafa
(PW.3) are also residents of different places which are situated at
a distance of four and two kilometers respectively from the house
of the complainant. Village Lalupur is stated to be comprising
upon population of 500/600 persons. More importantly, as per
prosecution evidence, Riaz Raza (deceased) left his house at
about 5:00 p.m. in order to attend marriage ceremony of Amir
Khan resident of Chak No.38/D and thereafter at about 5:30 p.m.
left for Lalupur in the company of the appellant and other
accused.
According to Muhammad Ameer (PW.1), he left his house
at 11:30 p.m. in the company of the PWs and arrived at Lalupur
Village at about 12 of the night and that too at the thick of the
occurrence and at the peak of the passions. This is not
understandable that the appellant who is portrayed as a rich
landlord of the vicinity, his house/Dera was so unguarded and
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Criminal PSLA No.85 of 2012
Murder Reference No.100 of 2012
12
unprotected that the PWs successfully made ingress and that too
at the odd hours of the night when the fatal shot was about to be
fired. Such narration of facts does not appeal to logic and
average standard of prudence. The three PWs, from the narration
of facts, can reasonably be termed as chance witnesses and their
testimony as unnatural.
According to the statements of the three eye-witnesses, the
appellant fired at the deceased with a carbine. The distance
between the two points as per the site plan (Ex.CW.1/F) is three
feet only. The perusal of the medical report shows that there is
no mark of blackening, burning or tattooing etc. According to the
book namely ‘A Text Book of Forensic Medicine and
Toxicology’ written by Dr. S. Siddiq Husain, if a shot is fired
from a .12 bore gun from a distance of one yard, it is likely to
cause blackening and tattooing. Admittedly, the distance is
marginal in nature and it would not be appropriate to give a
conclusive finding on the issue but at least such aspect of the
matter pushes this Court towards a more cautious approach.
15.
In every case of murder, the motive has its own
significance. It provides corroboration to the ocular account
furnished by the witnesses. In the instant case, at the time of the
registration of FIR, no motive was attributed to the appellant or
to his co-accused. However, the complainant at the time of
making of his supplementary statement (Exh.CW.1/E) set up a
specific motive which was described as a financial dispute
between the deceased and the appellant without mentioning its
nature and detail. Likewise, the perusal of private complaint
(Exh.PA) also shows that no detail of this financial transaction is
mentioned there. However, the detail of this dispute was brought
on record by Muhammad Ameer when he appeared as PW.1. The
relevant portion of his examination-in-chief reads as under:“I became anxious as there was dispute of money between
Muhammad Nadeem accused and my son Riaz Raza because
Nadeem accused had borrowed Rs.50,000/- from Riaz Raza
and on the demand of that money there was dispute between
Muhammad Nadeem and Riaz Raza”.
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Criminal PSLA No.85 of 2012
Murder Reference No.100 of 2012
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Motive or malice is not to be presumed but is to be proved and
that too on the basis of some legally admissible evidence. In the
instant case, the prosecution miserably failed to establish the
motive. The prosecution tried to establish motive through the
statement of Muhammad Ameer (PW.1) and Muhammad Akram
(PW.2). Both the witnesses, furnished no detail regarding the
motive as alleged by them. Whole of the prosecution case is
absolutely silent as to when and in what manner and for what
purpose, the amount of Rs.50,000/- was paid. Similarly, no
reference is made to any incident which may give rise to a belief
that the appellant was annoyed with the deceased so as to have
resort to such an extreme step of taking his life and that too for
this meager amount. Conversely it has come in evidence that the
deceased and the appellant were in best of terms with each other.
The motive part of the case got no corroboration from the
statement of PW.2, rather if correctly interpreted, the same is
denied by him. In this respect the relevant extract his testimony
is being reproduced below:“It is correct that during investigation it was correctly found
that accused and Riaz Raza were close friends. We had heard
that there was dispute between accused and deceased about
Rs.50,000/- but we have not seen with our eyes of giving of
Rs.50,000/- between them”.
As this was not enough, PW.2 further stated as under:“When the accused persons arrived in the marriage
ceremony, they were welcomed by deceased Riaz Raza.
There was no matter of payment of any amount between the
accused Naveed Ahmad, Wasif Mushtaq and Khalid Ahmad
and the deceased. The deceased Riaz Raza left the marriage
party in good mood with the accused persons”.
The above mentioned extracts from the deposition of
PW.2, go long way in establishing that the motive was fabricated
by PW.1, to provide some credence to his allegation, brought on
record through his supplementary statement as well as through
private complaint. Even otherwise, the failure to establish motive
as set out in FIR is a factor, which goes against the prosecution.
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Criminal PSLA No.85 of 2012
Murder Reference No.100 of 2012
14
The prosecution, though is not obliged to prove the motive in
each and every case, however, once the motive is set up then it
must be established. The guidance in this respect can be sought
from the judgment of the Hon’ble Supreme Court of Pakistan
reported as Noor Muhammad v. The State and another (2010
SCMR 97):“Prosecution though not called upon to establish
motive in every case, yet once it has set up a motive
and fails to prove the same, then prosecution must
suffer the consequence and not the defence”.
In the case of Muhammad Bux v. Abdul Aziz & others
(PLJ 2010 SC 949), the Hon’ble Supreme Court of Pakistan
observed as under:“In this case, motive is an important fact, which has
not only been alleged in the FIR but the evidence has
been led. The said motive has not been relied upon by
the trial Court and the High Court as the prosecution
failed to prove the same. In such a situation, the
Court should be very careful in accepting prosecution
story and the evidence of such witnesses who not
only gave evidence on motive and incident should be
accepted with great caution.”
16.
Learned Counsel for the complainant, laid much emphasis
on the point that since the death of the deceased occurred in the
house of the appellant hence the burden lies on him to prove as
to how the deceased met his death. We are afraid that such
arguments are not in accordance with the provision of Article
121 of the Qanun-e-Shahadat Order, 1984. The true import and
interpretation of forgoing provision of Article 121 is to the effect
that before an accused is called upon to offer explanation
regarding the existence or non-existence of any fact, the
prosecution has to discharge its obligation of proving its case and
that too beyond any shadow of doubt. If the prosecution is
successful in discharging such obligation, only then the burden
will shift to the accused.
17.
In the instant case, the appellant took a specific stance in
his statement under section 342 Cr.P.C. Though he opted not to
appear as a witness in his own defence under section 340 (2)
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Murder Reference No.100 of 2012
15
Cr.P.C. but he produced as many as six witnesses in his defence.
It evinces from his defence that he took a specific stance about
the death of the deceased and canvassed it as death by accident.
According to his version, the incident occurred when a gun
accidently went off and hit the deceased, resulting into his death.
He further took the stance that immediately after the occurrence,
he made all out efforts to save the life of the deceased and at first
instance took him to THQ, Hospital, Depalpur, from where he
was shifted to Jinnah Hospital Lahore in an ambulance, where he
succumbed to the injuries. In support of his claim, he produced
Dr. Shahid Farooq (DW-2) from THQ, Hospital Dipalpur and
Dr. Muhammad Saeed (DW.4) form Jinnah Hospital, Lahore.
According to the record of THQ, Hospital Depalpur (Ex-DD)
produced by Dr.Shahid Farooq (DW.2), the deceased was
brought by Nadeem Hussain appellant and that too when he was
alive. Dr. Muhammad Saeed (DW.4) produced the original
record of Jinnah Hospital Lahore (Ex-DE) which shows that the
deceased was brought by Nadeem (appellant). Not only this, the
ambulance driver Haji Irshad Ahmed, who took the deceased
from THQ, Hospital Dipalpur to the Jinnah Hospital, Lahore,
also appeared as DW.6. Last but not the least, the most important
witness namely Rashid Khan appeared as DW-5. The name of
the Rashid Khan finds mentioned in Ex-DA on two counts,
firstly, according to the complainant, the deceased was taken
from the house of Amir Khan in his presence and secondly at
06:00 a.m., he (Rashid Khan) informed the complainant about
the incident. While appearing as such, he fully supported the
defence version.
18.
From the above-discussion, the instant case becomes a
case of two versions, one brought by the prosecution and the
other through the defence version of the appellant. Both the two
versions are in conflict with each other and arise out of
altogether two different circumstances.
This is the salutary
principle of law that for just decision of such like cases both the
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16
versions are to be taken in juxtaposition and thereafter it is to be
seen as to which version is more probable and nearer to the truth.
In this respect reliance can be placed upon the judgment of the
Hon’ble Supreme Court in the case of Muhammad Younas v.
The State (1992 SCMR 1592), wherein it was held as under:“it is by now well-established that in a situation like
the one in hand, both the versions have to be kept in
juxtaposition and the one favorable to the defence is
to be preferred to, if it gets support from the admitted
facts and circumstance of the case and appeals to
common sense.”
19.
In order to evaluate the intrinsic worth of the prosecution
evidence as well as of the defence, both the versions are put in
juxta position and the judgment passed by the trial court is also
meticulously examined by this Court. It evinces from the
impugned judgment that the learned trial court while making the
ultimate appraisal of evidence, took the defence plea first and
proceeded to discard it and then discussed the prosecution
evidence very casually. We are afraid this approach of the
learned trial court is not found to be in accordance with the rule
of appraisal of evidence laid down by the superior courts for the
cases in which accused takes a specific plea like death by
accident or self defence etc. Apparently, while adopting such
method, the trial court misinterpreted Article 121 of the Qanune-Shahadat Order, 1984. In such like cases, the Court, which is
assigned with the task of the trial of the case, has to review the
entire evidence produced by the prosecution as well as by the
defence. For doing so he has to make the analysis of the matter in
two separate compartments. First of all the court is to examine
the prosecution case and then to go through the defence version
of the accused. If after the examination of the whole evidence,
the court forms an opinion that there is some reasonable doubt
that the murder was either unintentional or provoked, the benefit
will go to the accused. Similarly, if the court arrives at a
conclusion that there is possibility of the defence of the accused
Criminal Appeal No.332 of 2012
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17
having some shred of truth then in such circumstances the
accused is entitled to the benefit of doubt. His entitlement to such
benefit of doubt is not as a matter of grace but as a right. Such
rule of appraisal of evidence is based on the case of
Woolmington v. Director of Public Prosecutions
(1935
Appeal Cases 462). The rule of appraisal of evidence laid down
in Woolmington’s case received judicial recognition from the
courts of the Country in a chain of well-crafted judgments. In
this respect, reference can be made to the case of Safdar Ali v.
The Crown (PLD 1953 FC 93)
After careful consideration of these arguments, which being
based upon the words of statute; have required very careful
examination, I fell satisfied that in cases like the present, there
is no material difference between the application of the
standard of proof required under Pakistan law and that which
underlies the rule of “reasonable doubt” which obtains in the
English Courts. It is undeniable that finally the burden lies
upon the prosecution to prove each ingredient of the offence
charged, i.e. to support each ingredient by such evidence as
would justify action by a prudent man, on the basis that such
ingredient is established. I do not see any appreciable
difference between this duty, and the duty of proving each
ingredient beyond “reasonable doubt”. If then an accused
person is able to establish by evidence, or if the prosecution
evidence itself presents such features as go to establish, the
existence of a reasonable doubt regarding an essential
ingredient of the offence charged, such as the requisite
intention in a case of murder, then the prosecution must
necessarily fail. Such intention may of course, be established
by proof of circumstances surrounding an evident act of
cruelty causing death, and need not necessarily be proved by
direct evidence. Yet it must be admitted that where the only
credible evidence furnished by the accused person himself,
who adduces facts in avoidance of the charge of murder, it
requires very strong circumstances indeed, of a nature
sufficient to exclude the possibility of the defence plea being
true, in order to provide the preponderance of probability
necessary for a “prudent” to act on the footing that the
accused act was performed with the sole intention of killing,
or of causing a necessarily fatal injury.”
Similarly, in the same case, it was also observed that:“I am of the opinion that the decision in the case of
Woolmington v. The Director of Public Prosecutions (1) is in
no way inconsistent with the provisions of section 105 of the
Evidence Act. In a criminal case, it is the duty of a Court to
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18
review the entire evidence that has been produced by the
prosecution and the defence. If, after an examination of the
whole evidence, the Court is of the opinion that there is a
reasonable possibility that the defence put forward by the
accused might be true, it is clear that such a view reacts on the
whole prosecution case. In these circumstances, the accused is
entitled to the benefit of doubt, not as a matter of grace but as
of right”.
In the cases reported as Muhammad Aslam alias Aslam
v. The Crown (PLD 1953 FC 115) and Muhammad Siddik v.
The Crown (PLD 1954 FC 112), while following the rule laid
down in Woolmington’s case, the fate of the cases were decided
in favour of accused persons with the observation that though the
defence failed to prove special plea but were successful in
creating reasonable doubt in respect of their guilt.
In the cases of Nadeem-Ul-Haq Khan and others v. The
State (1985 SCMR 510) and Javaid v. The State (PLD 1994
SC 679) the Hon’ble Supreme Court of Pakistan also followed
the dictum laid down in cases of Safdar Ali and Muhammad
Siddik (ibid).
20.
On the touch stone of chain of authorities, mentioned
above, this Court made an in depth analysis of the prosecution
case. The prosecution case originated form the FIR (Ex-DA/1),
the perusal of which shows that neither of the three eye witnesses
produced during the trial, saw the commission of offence.
however, the complainant Muhammad Ameer (PW.1) took a
somersault on 04.12.2005 by making a supplementary statement
(Ex-CW-1/E) and claimed to have witnessed the actual
occurrence. Four years thereafter, the complainant filed the
private complaint (Ex.PA) and during his examination in chief
reiterated his claim of witnessing the occurrence, as mentioned in
his supplementary statement. However, when he appeared in
witness box as PW.1, he owned the contents of (Ex-DA) by
saying that the same was submitted by him for the registration of
FIR (the relevant extract is already reproduced in para-13 supra).
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Murder Reference No.100 of 2012
21.
19
This part of his testimony goes long way in establishing
that neither he nor PW-2 and PW-3 ever witnessed the
occurrence. Not only this, the defence, during the course of cross
examination brought on record and proved that he made material
improvements through the private complaint (Ex-PA) as well as
in his examination in chief. It is settled law that the dishonest
improvements made by the witness in his statement before the
court is destined to be discarded from consideration. The
Hon’ble Supreme Court of Pakistan in the case of Ibrar Hussain
and others (2007 SCMR 605) held as under:“It is settled law that person making contradictory statements
cannot be held worthy and credence as law laid down by this
Court in Muhammad Shafique Ahmad’s case PLD 1986 SC
471. It is a settled law that witness making improvements
and changing version as and when suited according to the
situation then such type of improvements were found
deliberate and dishonest, therefore, cause serious doubt on
the veracity of such witness.”
Similar view was taken by the Hon’ble Supreme Court of
Pakistan in the case of Muhammad Naeem Inayat v. The State
(2010 SCMR 1054).
22.
The defence version lies in a separate compartment as it
puts forward a version different from the one advanced by the
prosecution. Both these two versions give rise to different
theories and the acceptance of one necessitates the rejection of
the other. It is settled principle that when from the perusal of the
entire evidence, two interpretations are possible then the
interpretation or theory which favours the defence is to be
accepted. In this respect, reference can be made to the case of
Qurban Hussain alias Ashiq v. The State (2010 SCMR 1592).
23.
From the perusal of the case of the prosecution and of the
defence, it divulges that the prosecution case is comprising upon
the statements of the witnesses who not only were found to be
chance witnesses but their conduct is also found to be unnatural.
They miserably failed to prove their claim of having witnessed
the occurrence. Their testimony is also not found to be in
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20
consonance with the case set up through private complaint.
Similarly, no scintilla of truth is found in the motive part of the
prosecution case. Conversely, the appellant satisfactorily
explained his plea of death of the deceased by an accident. His
defence plea is further supplemented through the statements of
Dr. Shahid Frooq (DW.2) and Dr. Muhammad Saeed (DW.4)
and from the record of THQ Hospital, Depalpur (Exh.DD) and
that of Jinnah Hospital (Exh.DE) which gives a reflection of the
bona fide of the defence plea of the appellant. It spells out from
the record that the appellant made best of his efforts to save the
life of the deceased. Needless to mention, a killer will try his
level best to eliminate all sorts of adverse evidence against him.
24.
The upshot of the above discussion is that prosecution has
failed to prove its case against the appellant beyond any shadow
of doubt. Hence, while extending the benefit of doubt in favour
of the appellant, the appeal filed by him (Crl.A.No.332 of 2012)
is allowed and the appellant is acquitted of the charge. He shall
be released forthwith if not required in any other case.
25.
For the foregoing reasons, Crl. PSLA No.85 of 2012 is
dismissed.
26.
Resultantly, Murder Reference No.100 of 2012 is
answered in the NEGATIVE and Death Sentence awarded to
Muhammad Nadeem alias Nadeem Hussain, appellant IS NOT
CONFIRMED.
(Sayyed Mazahar Ali Akbar Naqvi)
Judge
Approved for reporting.
(Ch. Abdul Aziz)
Judge
Najum*
(Ch. Abdul Aziz)
Judge