2007 S C M R 25

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Raja Fayyaz Ahmed, JJ

HAQ NAWAZ----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.138 of 2004, decided on 11th August, 2006.

(On appeal from the judgment, dated 1-11-2002 of the Lahore High
Court, Lahore passed in Criminal Appeal No.974 of 2001).

(a) Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan (1973), Art. 185(3)---Leave to

appeal was granted by Supreme Court to re-appraise the entire
evidence.

(b) Penal Code (XLV of 1860)---

----Ss. 302(b)---Re-appraisal of evidence---Medical and ocular account---

Police file, reconstruction of---F.I.R. showed that, five persons were
involved in the occurrence wherein deceased was murdered---Two
accused were acquitted by Trial Court, on the basis of compromise
effected by legal heirs of deceased, while one was declared proclaimed
offender and remaining two were sentenced to imprisonment for life--
High Court, in exercise of appellate jurisdiction, accepted plea of alibi
of co-accused and acquitted him but conviction and sentence of
accused was maintained---Plea raised by accused was that eye-witness
account of the occurrence was in conflict with medical evidence---
Accused further raised the plea that recovery memos and site plan
were fake as they were got prepared subsequently after destruction of
police file---Validity---In view of eye-witness account of prosecution
witnesses, it could not be said that fire made by accused did not land
at the right shoulder of deceased, which was confirmed through
medical evidence as well---As medical evidence was not in conflict and
had not contradicted eye-witness account of prosecution witnesses,
therefore, no benefit was accruable to accused---Question of
subsequent preparation of site plan and recovery memos pertaining to
crime empties by Investigating Officer on account of destruction of
police file and judicial portion of file did not carry any adverse effect
on prosecution case/evidence produced at trial for the reason that
accused was not convicted and sentenced in view of such documents
lost/destroyed---Accused was found guilty on the charge mainly in
view of evidence of eye-witnesses, medical evidence coupled with
motive part of prosecution story---Trial Court as well as High Court
had appraised the entire evidence including defence version in its true
perspective to which no exception could be taken---Findings of guilt
arrived at by both the Courts were not open to any interference by
Supreme Court---Appeal was dismissed.

Abdullah Jan and others v. Tila Muhammad and others 1985 SCMR 95
ref.

Hasnat Ahmed Khan, Advocate Supreme Court for Appellant.

Malik Abdul Haq, Advocate Supreme Court (on behalf of Advocate-

General Punjab) for the State.

Date of hearing: 11th August, 2006.

JUDGMENT

RAJA FAYYAZ AHMED, J.---This criminal appeal has been directed

against the judgment, dated 1-11-2002 passed by the learned Single
Judge in Chambers of the Lahore High Court, Lahore, whereby
Criminal Appeal No.974 of 2001 filed by the appellant against his
conviction and sentence of imprisonment for life under section 302(b),
P.P.C. awarded by the learned Additional Sessions Judge, Bhakkar vide
judgment dated 12-6-2001 has been dismissed.

2. Vide above mentioned judgment of the learned trial Court, Haq

Nawaz appellant and Muhammad Khan co-convict both sons of
Ghulam Sarwar were found guilty for causing the death of Muhammad
Ashraf and sentenced to imprisonment for life each under section
302(b), P.P.C., as well as found liable to pay Rs.50,000 each as
compensation to the legal heirs of the deceased or in default whereof
to further undergo S.I. for one year. Benefit of section 382-B, Cr.P.C.,
however, was extended in their favour. Their co-accused Riaz Hussain
alias Raza, Niaz Hussain and Fida Hussain were acquitted of the
charge by extending benefit of doubt in their favour, whereas;
Muhammad Ashraf absconder accused was declared as proclaimed
offender, and his perpetual non-bailable arrest warrant was issued by
the learned trial Court vide above mentioned judgment.

3. The criminal appeal filed by both the above said convicts to the
extent of appellant Haq Nawaz was dismissed and accepted to the
extent of Muhammad Khan by the learned Single Judge in the High
Court in view of his plea of alibi supported by documentary evidence,
accordingly he was acquitted of the charge vide judgment impugned
herein by the appellant against the dismissal of his appeal.

4. Leave to appeal has been granted by this Court vide order, dated 5-7-
2004 to reappraise the entire evidence.

5. The relevant facts of the prosecution case are that on the written
complaint of Muhammad Hayat (P.W.8) case F.I.R. No.365 dated 27-8-
1997 (Exh.P.9) was registered at Police Station Bhakkar under section
324/34, P.P.C. It was alleged by the complainant that at about 12 noon
on the above said date his nephew (sister's son) namely, Muhammad
Ashraf was to irrigate his land from the tube-well, while the
complainant along with his brother Khizer Hayat and Sarfraz son of
Allah Dad had come to the site to help Muhammad Ashraf who in
order to irrigate sugarcane fields erected/made Nakka, while the
complainant along with the above said two persons were present near
to the Khal, when all of a sudden from towards south Muhammad
Ashraf, Muhammad Khan alias Manda respectively armed with .30
bore pistol and kalashnikov both sons of Ghulam-Sarwar and
Muhammad Riaz alias Raza armed with .30 bore pistol emerged from
the sugarcane crops. Muhammad Khan raised Lalkara that they have
come to take revenge of the murder of his sons Mumtaz and Shah
Jahan and simultaneously Muhammad Ashraf (P.O.) fired with his
pistol at Muhammad Ashraf son of Abdul Rehman, which landed on
the back of his left shoulder. The second fire made by Muhammad Riaz
hit Muhammad Ashraf at his right wrist and after that Muhammad
Khan fired with his kalashnikov, which hit on the right shoulder of
Muhammad Ashraf, thereafter, Haq Nawaz fired at Muhammad
Ashraf, which landed at the back of his right shoulder. On receiving
fire-arm injuries Muhammad Ashraf fell down and all the accused
thereafter made indiscriminate firing and fled away. Muhammad
Ashraf in injured condition was shifted to the D.H.Q. Hospital Bhakkar
where the complainant made statement before Rohtas Khan, A.S.-I.
(P.W.7) who had reached to the hospital on receipt of information
about the occurrence. The injured expired in the hospital on the same
date after five hours and the offence was altered to that of under
section 302, P.P.C. read with section 34, P.P.C.
The motive behind the occurrence was that 10/11 months prior to the
present occurrence, Mumtaz and Shah Jahan sons of Muhammad Khan
co-convict (acquitted on appeal by the learned High Court) were
murdered. Abdul Rehman father of deceased Muhammad Ashraf and
Muhammad Bakhsh grandfather of the deceased along with others
were accused in the said double murder case.

6. After completion of the investigation in the case, report under

section 173, Cr.P.C. was submitted in the trial Court. The appellant and
his co-accused were indicted in view of the accusation and the
incriminating material produced with the report in the trial Court to
which they did not plead guilty. The prosecution in order to
substantiate the accusation produced 11 witnesses; namely;
Muhammad Amir (P.W.1), he identified the dead body of deceased
Muhammad Ashraf at the time of post-mortem examination. Dr. Khalid
Javed M.O. THQ Hospital, Mankera (P.W.2) conducted post-mortem
examination of the dead body of deceased. Muhammad Arif FC (P.W.3)
escorted the dead body of the deceased to the mortuary of THQ,
Hospital, Mankera, for post-mortem examination, after autopsy, the
M.O. handed over to him the dead body, last-worn clothes of the
deceased and the post-mortem report, which he delivered to the
Investigating Officer who took the same into possession through
memo. in his presence and he is the marginal witness of the seizure
memo. Muhammad Bashir, Patwari (P.W.4) on the pointation of [Link].
and under the instructions of the Investigation Officer prepared site
plan on 12-9-1997 which has tendered in evidence as Exh.P.8. Fakhar-
uz-Zaman, H.C. Moharrer, Police Station Saddar Bhakkar (P.W.5) on
receipt of the complaint sent by P.W. Muhammad Rohtas Khan, A.S.-I.
on 27-8-1997 recorded the formal F.I.R., he produced the original F.I.R.
register bearing his signatures on the report recorded by him in the
register and attested copy thereof produced by the witness was
tendered in evidence as Exh.P.9. On the same day, he was informed by
the M.O. THQ Hospital that Muhammad Ashraf injured has expired, so
he informed to the concerned Police Officer about such fact and also
incorporated section 302, P.P.C. in the F.I.R. On 28-8-1997, Amjad
Hussain S.-I./Investigating Officer handed over to him sealed parcels
containing blood-stained earth, two sealed parcels containing empties
to be kept in safe custody for onward transmission to the concerned
offices. On 2-9-1997, he handed over the parcels to Muhammad Ashraf
Constable to be delivered to the concerned officer for the purpose of
examination and analysis. The above said S.-I./Investigating Officer
handed over to him on 28-8-1998, the last-worn clothes of the deceased
to be kept in safe custody in the Malkhana. Muhammad Mumtaz A.S.-I.
(P.W.6), stated at the trial that the police file and the judicial portion of
the case file were produced by him on 24-9-1998 in the Court of his
Lordship Mr. Justice Iftikhar Hussain Chaudhry of Lahore High Court
in the bail matter of accused Haq Nawaz to whom bail was granted by
the learned High Court and after that when he was coming out of the
main gate of the Lahore High Court towards Mall Road, the procession
of Sipah-e-Sahabah, which by that time had reached to the said site
caused damage to the High Court Building furniture and other articles
within its premises. The witness further deposed that the members of
the procession also caused injuries on his person and other police staff
present on the duty. The police file and the judicial portion of the file
held by him was snatched and destroyed, in respect whereof case F.I.R.
No.256 dated 24-9-1998 under sections 344/
186/427/188/506/392/337(h)-2/148/149, P.P.C. 13/20 of the Arms
Ordinance, 1965, 16 M.P.O. and section 9 of the Anti-Terrorism Act,
1997 was registered at Police Station Purani Anarkali, Lahore.
According to the witness, he had been admitted in the Mayo Hospital
Lahore for medical treatment and he also informed to the S.P. Bhakkar
on telephone about the incident and about the destruction of the
above said file. He further stated that on 1-10-1998, S.H.O. Muhammad
Ramzan Shahid sought permission from the S.P. Bhakkar for preparing
the duplicate challan and the police file, which accordingly was
allowed. He referred to the original application so submitted by the
S.H.O. available on the case file, which he produced with permission of
the Court as Exh.P.10 being familiar with the signatures and
handwriting of the said S.H.O. the site plan and the duplicate challan
initially prepared by the Investigating Officer and subsequently,
reconstructed by him were admitted in evidence as Exh.P.11.
According to the witness, the site plan was true copy of the original
prepared by Amjad Hussain, S.-I. (since dead) and the duplicate
recovery memo. of blood-stained earth was also admitted in evidence
as Exh.P.12, whereas; the duplicate recovery memo. of the crime-
empties (originally prepared by Amjad Hussain, S.-I.) prepared by the
witness was admitted in the evidence as Exh.P.13. Attested copy of the
inquest report of Muhammad Ashraf deceased obtained from DHQ
Hospital, Bhakkar, prepared by the witness was admitted in his
evidence as Exh.P.14. Scaled site plan got prepared by the said witness
on 24-2-1999 was already admitted in evidence as Exh.P.8.

Muhammad Rohtas, A.S.-I. (P.W.7) brought the original police file from
the police record room of the office of the S.P. Bhakkar. On receipt of
information of the incident, he proceeded to the Civil Hospital where
the complainant produced to him MLR of Muhammad Ashraf injured
bearing No.371 of 1997. The complaint submitted to him by P.W.
Muhammad Hayat was sent to the Police Station Saddar Bhakkar for
registration of the case through Muhammad Muzaffar Khan. He also
submitted application to the Medical Officer for permission to record
the statement of Muhammad Ashraf injured but as the said injured
was unconscious, therefore, his statement could not be recorded. After
that P.W. visited to the place of occurrence and when he reached near
to the Adda Razai Shah was informed by Amjad Hussain S.-I. about the
injured having been succumbed to the injuries. He entrusted the
investigation of the case to Amjad Hussain, S.-I. (since dead).

Muhammad Hayat complainant (P.W.8) and Sarfraz (P.W.9) are the eye-
witnesses of the occurrence. Muhammad Anwar (P.W.10) deposed that
he over heard, while sitting in the hotel of Ghulam Hassan Pawali, that
Muhammad Khan Niaz, Riaz, Haq Nawaz, Fida Hussain having asked
Muhammad Ashraf absconder accused to take revenge of the murder
of his nephews to which Muhammad Khan, Niaz, Riaz, Fida Hussain
agreed. Muhammad Ashraf F.C. (P.W.11), delivered the sealed parcels
containing blood-stained earth and the sealed parcels of crime-empties
in the office of Chemical Examiner, Lahore and Forensic Science
Laboratory, Lahore, which were handed over to him by P.W. Fakhar
Zaman Moharrar/H.C. of Police Station Saddar Bhakkar.

7. The cited [Link]. Khizar Hayat, Muhammad Aslam Khan, Muhammad

Ali Inspector (Legal), Tariq Masood Yaseen S.P. and Muhammad Anwar
S.-I. were given up by the learned A.D.A. Amjad Hussain S.-
I./Investigating Officer of the case could not be produced as he was
murdered in a police encounter in Sargodha District.

8. After close of prosecution evidence, the accused facing trial were

examined by the learned trial Court under section 342, Cr.P.C. in view
of the incriminating pieces of evidence, which they denied and
disputed.

Haq Nawaz appellant produced only one witness in defence namely,

Allah Bukhsh son of Faqir Muhammad as D.W.I. The present appellant
in his statement under section 342, Cr.P.C. in answer to question No.4
took the plea of alibi by stating that on the day of alleged occurrence
he was at Dariya Khan in connection with the treatment of the
fracture of the arm of his son from Jarah for the whole day and in
support of his plea stated to have produced sufficient evidence before
the police, which was verified and he was found to have not
participated in the occurrence. He further stated that the [Link]. were
interested, related inter se and inimical towards him, deposed against
him and his brother Muhammad Khan co-accused, as well as; the
complainant party had involved them in different false criminal cases
previously due to enmity.
D.W. Allah Bukhsh son of Faqir Muhammad deposed that he had gone
to Dariya Khan to collect his medicines from Ghulam Nabi Jarah,
where at 11-30 a.m. he met with Haq Nawaz who remained present
with him till 2-30 p.m. on 27-8-1997.

9. The impugned judgment reflects that mother and father respectively

of Muhammad Ashraf deceased during pendency of the trial
compromised with the co-accused Riaz Hussain and Niaz Hussain sons
of Allah Bukhsh by forgiving them in the name of Almighty Allah who
also made statement to such effect before the learned trial Court. The
compromise effected between the parties was accepted by the learned
trial Court, which accorded permission to compound the offence.
Accordingly, they were acquitted of the charge by the learned trial
Court.

10. The learned Advocate Supreme Court for the appellant contended
that the recovery memos, particularly pertaining to the alleged crime-
empties, site plan stated to have been prepared by the Investigating
Officer during investigation of the place of occurrence and got
prepared through draftsman by the Investigating Officer of the case
admitted in evidence are fake and manipulated documents on which
no reliance can be placed, besides all other documents subsequently
prepared after destruction of police case file along with the judicial
portion of the said file (submitted with the duplicate challan) and such
facts stand proved through the testimony of Muhammad Mumtaz A.S.-
I. (P.W.6). The eye-witness account furnished by P.W.8 Muhammad
Hayat and P.W.9 Sarfraz was in conflict with the medical evidence and
it could not be proved through the prosecution evidence that the fire-
arm injuries attributed to appellant Haq Nawaz and Muhammad Khan
(acquitted by the learned High Court) independently were sufficient to
cause death of the deceased in the ordinary course of nature, hence no
implicit reliance could have been placed for the purpose of conviction
of the appellant on the evidence of the eye-witnesses. The learned
counsel for the appellant, while referring to the medical evidence
during the course of arguments submitted that in fact medical
evidence contradicts the ocular account of the incident as given by the
above said [Link]. The learned counsel next contended that on the plea
of alibi, co-convict Muhammad Khan was acquitted by the learned
High Court, whereas; on the similar defence plea duly substantiated,
conviction of the appellant was maintained. According to the learned
Advocate Supreme Court in the over all facts and circumstances of the
case, as it emerged from the evidence available on record, the
prosecution story suffers from substantial doubts, therefore, the
impugned judgment deserves to be reversed to the extent of the
appellant. In support of his contention with regard to the motive part
of the prosecution story, conflict between the medical evidence and
the ocular evidence reliance has been placed on the judgment of this
Court reported as Abdullah Jan and others v. Tila Muhammad and
others 1985 SCMR 95.

11. The learned counsel for the State vehemently argued that both the
learned Courts i.e. the learned trial Court and the Honourable High
Court have concurrently found the appellant as guilty on the charge in
view of the unimpeached and unrebutted prosecution evidence
comprising of ocular account of the incident furnished by [Link].8 and
9, motive and medical evidence which was duly appraised by both the
learned trial Courts in juxtaposition with the defence plea of alibi to
which no exception could be taken. He further submitted that even be
believed that the memos. relating to the recovery of crime-empties etc.
including site plan, after destruction of the above said file, submitted
with report under section 173, Cr.P.C. before the learned trial Court, as
per evidence of P.W.6 were not worthy of any credence would not
carry any adverse effect on the guilt or innocence of the appellant for
the simple reason that the conviction of the appellant was based on
the above said pieces of evidence and not on the recovery memos. and
site plans etc. prepared subsequently on account of the destruction of
the record, hence; the impugned judgment is unexceptionable.

12. We have heard the learned counsel for the parties at length in the
light of the evidence available on record gone through carefully with
the assistance of both the learned counsel including the impugned
judgment. The prosecution and the defence plea has been reappraised,
scanned and scrutinized in depth. Undisputedly conviction of the
appellant was based on the ocular account of the occurrence furnished
by Muhammad Hayat complainant (P.W.8) and Sarfraz (P.W.9), who
have also deposed about the motive as set up in the report made by
P.W. Muhammad Hayat. The motive part of the prosecution story
mentioned hereinabove as given in the F.I.R. was not disputed or
controverted during the course of arguments being advanced by the
learned Advocate Supreme Court for the appellant. It was contended
that the same being a double-edged weapon operated on both sides.
This principle obviously has always been applied in criminal cases,
where motive of the like nature or enmity existed between the parties,
hence; the entire evidence in the instant case particularly the eye-
witness account furnished by the [Link]. had to be scrutinized and
appraised with care and caution before placing reliance on the
testimony of the eye-witnesses, which in our considered opinion as
regards the appellant has been made by both the learned Courts in its
true perspective and; while doing so no material part of the evidence
on the point was mis-appraised or omitted from consideration. The
venue and time of the occurrence was not disputed including the
motive part of the prosecution story with regard to the enmity
between the complainant and the accused party. Nothing was brought
on record by the defence to reasonably convince that on account of
enmity between the parties, it would not be safe to place reliance on
the evidence of the above said eye-witnesses, which otherwise fits in
the circumstances of the case, as well as; worthy of credence, hence;
testimony of the eye-witnesses having withstood the test of cross-
examination could not have been discarded or disbelieved.

13. We have carefully and minutely gone through the medical

evidence and post-mortem report in view of the attributed fire-arm
injuries caused to the deceased by co-convict Muhammad Khan
(acquitted by the learned High Court) and appellant Haq Nawaz in
view of the above noted contentions of his learned counsel. It was
alleged that appellant Haq Nawaz fired with kalashnikov at the
deceased which landed on the right shoulder of the deceased. The
medical evidence which rests on the post-mortem report Exhs.P.2 to P.4
showed that besides the other noted fire-arm injuries, the deceased
had suffered a fire-arm entrance wound of 1/2 x 1/2 c.m. 4 c.m. below
the tip of right shoulder joint. On dissection of the seat of above said
wound i.e. right shoulder joint, it was found by the Medical Officer
that the right lung of the deceased was smashed, thorax cavity was full
of blood with fracture of 2nd thorax rib of right side. According to the
opinion of the Medical Officer, the multiple fire-arm ante-mortem
wounds were sufficient in the ordinary course of nature to cause the
death of the deceased. The fire-arm wound suffered by the deceased
below the tip of his right shoulder joint admittedly smashed the right
lung of the deceased and their being only one external seat of injury
below right shoulder joint would not exclude the possibility of the
second fire, if believed, made by the other accused as having not hit on
the same seat of injury as a co-incident of two fires particularly when
the evidence of the eye-witnesses to be believed, but in the instant
case, eye-witness account was believed only to the extent of the
appellant by the learned Division Bench of the High Court and was
disbelieved as regards his co-convict Muhammad Khan in view of his
defence plea. A fire-arm injury on right shoulder of the deceased,
which was also attributed to co-accused Muhammad Khan, who has
been acquitted by the learned Division Bench of the High Court on
reappraisal of prosecution and defence evidence, therefore, in view of
eye-witness account of the above said [Link]. it cannot be said that the
fire made by the appellant did not land at the right shoulder of the
deceased which was confirmed through the medical evidence as well.
We are not convinced that the medical evidence was in conflict or
contradicted the eye-witness account of the above said [Link].,
therefore, no benefit was accruable to the appellant on the point.

As regards the question of subsequent preparation of the site plan and

the recovery memos. pertaining to the crime-empties by Muhammad
Mumtaz A.S.-I. (P.W.6) on account of the destruction of the police file
and judicial portion of the file, did not carry any adverse effect on the
prosecution case/evidence produced at the trial mentioned above for
the reason that the appellant was not convicted and sentenced in view
of the above said documents lost/destroyed by the processionists but
was found guilty on the charge mainly in view of evidence of the eye-
witnesses, medical evidence coupled with the motive part of the
prosecution story. The case-law relied upon by the learned counsel for
the appellant is distinguishable to the facts and circumstances of the
instant case.

15. Both the learned Courts i.e. the learned trial Court and the
Honourable High Court in our considered opinion have appraised the
entire evidence including the defence version in its true perspective to
which no exception could be taken, hence; the findings of guilt arrived
at by both the learned Courts are not open to any interference by this
Court. Thus; for the foregoing reasons, this criminal appeal being
without any substance is dismissed.

M.H./H-14/SC Appeal dismissed.

;