MUHAMMAD NADEEM Versus THE STATE

Khurram Hayat through Criminal Appeal No.289 of 2000 and Muhammad Nadeem through Criminal Appeal No.417 of 2000 have called in question the validity of the judgment, dated 29‑2‑2000 passed by the Additional Sessions Judge, Lahore whereby both of them were convicted under section 302(b), P.P.C. for the murder of Anwar‑ul‑Haq and each one of them was sentenced to imprisonment for life by way of Ta'zir. Five years of the term of imprisonment was ordered to be rigorous imprisonment and the remaining as simple imprisonment. However, rigorous imprisonment was ordered not to run consecutively for two years, each one of the appellants was also ordered to pay Rs.50,000 as compensation to the heirs of the deceased under section 544‑A, Cr.P.C. and on the failure to pay compensation which was to be recovered as arrears of land revenue each convict was also directed to undergo six months' R.I. Benefit of section 382‑B, Cr.P.C. was allowed.

2. Vide the same judgment Nauman Hayat alias Nomi, Muhammad Ashraf and Shahida Parveen were acquitted.

3. Razia Begum has filed Criminal Revision No.335 of 2000 for enhancement of sentence of the appellants from life imprisonment to death.

4. Since all the matters arise out of one judgment I intend to dispose them of through this single judgment.

5. The occurrence which resulted in the death of Anwar‑ul‑Haq took place on 20‑11-1997 at 10‑30 a.m. in Street No.90, situated in the area of Aslam Park, Shahdara Town lying within the vicinity of Police Station Shahdara Town. The complaint was made by Mst. Razia Begum, mother of the deceased, which was recorded by Riaz Ahmad, S.I./S.H.O. Police Station Shahdara Town on 20‑11‑1997 at the place of occurrence at 11‑30 a.m. The complainant was sent to the police station for registration of the case which was duly registered by Nazir Ali, S.I. at 11‑40 a.m.

6. The allegation contained in the First Information Report, authored by Razia Begum, is that she alongwith her children are resident of Gali No.70, House No. 1, Mohallah Kagazwala, Shahdara Town. On 20‑11‑1997 she alongwith her sons Anwar‑ul‑Haq and Dildar‑ul‑Haq sons of Umar Hayat and brother of Liaqat Ali son of Muhammad Ali were going to their counsel towards the wagon stand on foot. At about 10‑30 a.m. when they reached Gali No.90, Islam Park they saw Khurram Hayat alias Chand armed with a pistol, Nauman alias Nomi also armed with pistol and ‑their one brother whose name and particulars were not known armed with a pistol all of them were sons of Umar Hayat her husband from his another wife Shahida Parveen accompanied by Muhammad Ashraf their maternal‑uncle coming from the front. Muhammad Ashraf raised a Lalkara that Anwar‑ul‑Haq should be murdered and he should not be spared as he has to be taught a lesson for not vacating the house and demanding the share in the property of his father. On his exhortation Khurram Hayat alias Chand, Nauman alias Nomi and their brother, whose particulars were not known, but can be identified if he is brought before the first informant started firing with their respective pistols, which hit her son Anwar‑ul‑Haq and he fell to the ground after getting injured. The first informant alongwith her other son Dildar‑ul- Haq and brother Liaqat Ali took refuge along the wall and saved their lives. Anwar‑ul‑Haq died at the spot and the accused while firing and raising Lalkaras succeeded in running away.

7. Motive for the occurrence is that her husband Umar Hayat married for the second time Mst. Shahida Parveen from whose womb Khurram Hayat and other four sons were born and there was a dispute regarding distribution of property. Her husband Umar Hayat was murdered in May, 1996 upon which second wife of Umar Hayat, namely, Shahida Parveen got a murdered case lodged against her son Anwar‑ul‑Haq deceased and Dildar‑ul‑Haq regarding murder of their father in which case both of them were on bail. Mst. Shahida Parveen had meted out threats to the first informant that if she does not give possession of the house to her and if share in the property was demanded Anwar‑ul‑Haq would be murdered. Due to this grievance Khurram Hayat alongwith four persons on the abetment of Shahida Parveen in furtherance of their common intention murdered Anwar‑ul‑Haq.

8. Riaz Ahmad, S.I./Investigating Officer after recording statement of the complainant examined the dead body, prepared the inquest report Exh P.G. and sent the dead body for autopsy through Constables. Blood stained earth was collected from the spot and taken the same in possession vide memo. Exh.P.B. Three empties Exh.P.4 to Exh.P.6 were also taken in possession vide memo. Exh.P.C. Supplementary statement of the complainant was recorded on the same day. Through draftsman prepared scaled site plan Exh.P.F. in which he prepared his notes in red ink. On 9‑12‑1997 the investigation eras transferred to D.S.P. Headquarters, Lahore.

9. Syed Zafar Ali, S.H.O. Police Station Shahdara Town on 4‑4‑1998 conducted investigation and on 17‑4‑1998 he arrested the accused.

10. Dr. Javaid Iqbal Khokhar; Demonstrator, Department of Forensic Medicines conducted the post‑mortem examination on the dead body of Anwar‑ul‑Haq on 21‑11‑1997, who found corresponding holes in the shirt at the, time of inspection of the injuries. He found the following injuries on the person of the deceased:‑‑

1‑A. 1.0 x 1.0 c.m. circular lacerated wound with collar of abrasion all around, chest cavity deep, present on front of left shoulder 16 c.m. to the left of anterior midline 15 c.m. from the left nipple at 1'O Clock position (entry wound).

1‑B. 1.0 x 1.0 c.m. circular lacerated wound present on front of right shoulder 17 c.m. to the right of anterior midline 7 c.m. below top of right shoulder (exit wound).

2‑A. 1.0 x 1.0 c.m. circular lacerated wound, chest cavity deep present on front of left chest with collar of abrasion, 12 c.m. below axilla 7.0 c.m. from left nipple at 4'O position (entry wound).

2‑B. 1.0 x 1.0 c.m. circular, lacerated wound present on back of left chest, 15 c.m. to the left of posterior midline, 7.0 c.m. below left inferior angle of scapula (exit wound).

In. the opinion of the doctor injuries were ante‑mortem and caused by fire arm weapon. The cause of death was damage to both pleura and arch of aorta under injury No. 1 leading to profuse haemorrhage shock and death. Injury was sufficient to cause death in the ordinary course of nature. Probable time that elapsed between injuries and death was within five minutes and between death and post‑mortem was between 18 to 30 hours.

11. After submission of challan in the Court the appellants were indicted, they denied the charge, pleaded not guilty and claimed a trial. Prosecution examined as many as 12 witnesses. The ocular testimony account was given by Mst. Razia Begum complainant P. W.1 and her son Dildar‑ul- Haq P.W.2.

12. Appellants when examined under section 342, Cr.P.C. denied their participation in the occurrence, however, it was admitted by Khuram Hayat that his father was murdered for which a criminal case was brought against Anwar‑ul‑Haq, Dildar‑ul‑Haq and Razia Begum at his instance, which case is still pending adjudication in the Court of Additional Sessions Judge, Lahore. In reply to the question as to why the prosecution has brought the case against him he answered as under:

"I have been falsely implicated in this case for the reason that I was the complainant in Case F.I.R. No. 151 of 1996, dated 18‑5‑1996, Police Station Shahdara Town, Lahore in respect of murder of my father Umar Hayat, deceased, Anwar‑ul‑Haq P.W., Dildar‑ul‑Haq, complainant and Mst. Razia Begum are the nominated accused in the said F.I.R. My co‑accused Muhammad Ashraf is a recovery witness in the said case, whereas Nauman Hayat, my co- accused/real brother is an eye‑witness in the said case. The case aforementioned is still pending adjudication in the Court of Mr. Allah Bakhsh Ranjha, learned Additional Sessions Judge, Lahore. The prosecution had deliberately not produced Rana Farooq, S.I./Investigating Officer who prepared the report under section 173, Cr.P.C. The other Investigating Officers had not found me guilty as alleged in the F.I.R. The prosecution has also failed to lead any evidence in respect of section 201, Cr.P.C."

12. Similarly Muhammad Nadeem in reply to the question as to why the prosecution had brought the case against him made the following answer.

"I had been a neighbour of Anwar‑ul‑Haq, deceased alongwith my family. I have been working with Dildar‑ul‑Haq as an apprentice with one Tufail, Goldsmith and was known by name and by face since childhood to whole of the family of Anwar‑ul‑Haq and Dildar ul‑Haq, P.Ws. On 22-6‑1995 Anwar‑ul‑Haq and Dildar‑ul‑Haq P. Ws. murderously assaulted me and I got a criminal case registered vide F. I. R. No. 199 of 1995 against them in Police Station Shahdara Town, Lahore. In the first instance, Mst. Razia Begum named one an unknown brother of Khurram Hayat and. Nauman Hayat, co -accused persons as accused in her statement under section 154, Cr.P.C. Since Mst. Razia Begum and the other P.Ws. were not aware of the name or 'features of rest of the brothers of Khurram Hayat and Nauman Hayat, therefore, at a very belated stage, she allegedly named me as the third accused at the instance of Dildar‑ul- Haq against whom, I had lodged the abovesaid case as they nourished grudge against me due to the afore cited case. The whole of the investigation of this case has been conducted dishonestly at the instance of the complainant party. The evidence has been fabricated and concocted and the Zimnies and the other relevant papers were fabricated, manipulated and changed subsequently, in order to implicate me in this case. The eye‑witnesses were not present at the place of occurrence. This case was investigated by a number of times by Senior Police Officers but they have not been produced and Farooq Ahmad, Investigating Officer/Sub‑Inspector who submitted his report under section 173, Cr.P.C. was deliberately withheld by the prosecution and only secondary evidence was led which fact has prejudiced the case against me. Moreover, the relevant record duly summoned by the Court was also not produced by the prosecution resulting a serious prejudice to my case and have caused gross miscarriage of justice."

13. Learned counsel for the prosecution criticising the evidence produced stated that the witnesses were highly inimical towards the appellants, they were not present at the place of occurrence, Nadeem was not nominated in the F.I.R.; there are contradictions between medical evidence and the ocular testimony so much so that motive has not been proved. There, being no corroborative evidence no conviction can be based on the inimical testimony of two eye‑witnesses. Conversely learned counsel for the complainant alongwith counsel for the State have submitted that the trial Judge has already taken a lenient view in a case where prosecution has proved its case beyond shadow of doubt and in ordinary circumstances punishment of death should have been awarded for which he has brought the revision petition. However, it was stated that in any case the conviction recorded by the trial Judge was to hold the field.

14. I have considered the arguments of the respective counsel and have also gone through the voluminous record.

15. Ocular testimony account has been furnished by Mst. Razia complainant who appeared as P. W.1 and her son Dildar as P. W .2. It has been admitted by P.W.1 that there was a lingering dispute between herself and Mst. Shahida, the other wife of Umar Hayat deceased regarding his property. It has further been admitted both by P. W .1 and P. W .2 that they were the accused persons named by appellant Khurram Hayat for the murder of Umar Hayat which case was pending adjudication at the time when the present occurrence took place. Anwaar deceased and his brother Dildar had been bailed out. It has also been admitted by P.W.1 that Umar Hayat got a case registered vide F.I.R. No.24 of 1993 under sections 448/511, P.P.C. with Police Station Shahdara Town, Lahore against her and her sons on 24‑1‑1993. In the murder case of Umar Hayat, Anwaar deceased, Dildaz P.W. and Razia were arraigned as accused alongwith one Shahid. Khurram appellant was the complainant whereas Nauman and Ashraf acquitted accused were witnesses. It has also been admitted by P.W.1 that she has filed a civil suit against Mst. Shahida widow of Umar Hayat. All these facts conclusively prove that the complainant on one hand and the accused alongwith their mother Shahida on the other hand have deep‑seated enmity which was continuing as the complainant party insisted that the accused should give them possession of the house where they were residing which belonged to Umar Hayat and they should give up the claim to the property of Umar Hayat. Admittedly the ocular testimony has been furnished by Razia P.W. and her son Dildar. Their statements have to be scrutinized very carefully because of rancour and enmity mentioned above.

16. Undoubtedly enmity cuts both ways, it provides motive for the accused to commit offence and also false implication by the complainant cannot be ruled out. Recovery of three empties in this case is of no use because weapon of offence was not recovered from the accused. In such‑like cases Courts always look for corroboration from some source either direct or circumstantial.

17. The prosecution story is that on the fateful day when, the occurrence took place Anwaar deceased was accompanied by P.W.1 and P.W.2 and Liaqat brother of P, W.1, who has not been produced, statedly going to the Court to see their counsel. On the said date the only case fixed was the complaint of Khurram Hayat appellant in which preliminary evidence had to be recorded as it is apparent from the perusal of Exh.D.O., which is certified copy of the order sheet in the complaint filed by Khurram Hayat. The accused, namely, the P.Ws. were not required to attend the Court. In the F.I.R. recorded by P.W.1 no mention has been made regarding seat of injuries and their attribution to the accused who caused the same. Similar is the omission in the statement of P.W.2 Dildar. Both the witnesses could not point out as to who fired first followed by the name of the accused who fired subsequently. Only mention made is that all the three accused fired, who have been named to be Khurram Hayat and Nauman. However, the third accused who is stated to have fired at the deceased was an unnamed brother of Khurram Hayat and Nauman. In the supplementary statement recorded at 1‑30 p.m. as deposed by Riaz, S.I. who appeared as P.W.11 it is for the first time that Mst. Razia P.W. named Nadeem as accused who is said to have fired at her deceased son in collaboration with Khurram Hayat appellant and Nauman acquitted accused. It is admitted by the first informant that at the time when she was getting the complaint recorded her son Dildar was present. The position is also acknowledged by Riaz, S.I. P.W.11 Razia P.W.1 further admits that she knew Nadeem by name and face before the murder of his son took place because Nadim alongwith other family members were their immediate neighbours living in the house of one Javed for two years as tenants. Nadim and Dildar have been admitted to work together with Tufail a goldsmith. If this is the position then it is strange that the first informant omitted to nominate Nadim in the F.I.R. by name but stated that third accused was brother of Khurram Hayat and Nauman whose name she has forgotten but can be identified if he was produced before her. In the supplementary statement‑ reference to which has been made earlier, Nadim was nominated as an accused who fired alongwith Khurram Hayat and Nauman. It may not be out of place to mention that Nadim had lodged F. I. R. No.199 with Police Station Shahdara Town against Dildar P.W.2 and Anwaar deceased on 24‑6‑1995 under section 337‑F(ii), P.P.C. in which a razor injury was caused to him at the hands of Dildar P.W.2 who also admits this fact in his statement. The close exegesis lends support to the lurking suspicion in mind that Nadim was subsequently, nominated as an accused in the supplementary statement because of ill‑will, grudge and enmity with Dildar. The name of third accused, stated in the F.I.R. to be the brother of Khurram Hayat, was given up, probably by then it was realised, that such a course was hazardous and could not stand the rigorous of trial, therefore, Nadeem was substituted for the third brother. Admission of P.W.1 that Nadim had no connection with the property of Umar Hayat or failure by the witnesses to prove the complicity of Nadim with Khurram Hayat and others leads only to the conclusion that he has been named to fill in the gap created by the first informant regarding the third accused who is stated to have fired at the deceased because of enmity with Dildar. The assertion in the F.I.R. that the third accused stated to have fired at the deceased was brother of Khurram Hayat and Nauman who could be identified if produced and the subsequent nomination of Nadim also throws doubt on the prosecution case to the extent that the occurrence was not seen by P. W. 1 and P. W .2. The mention of wall where refuge was taken by Razia and Dildar P.Ws. having not been shown to the Investigating officer and also fortunate enough to come out unscathed from the occurrence when they were equally guilty for the alleged murder of Umar Hayat having been named as an accused by Khurram Hayat throws doubt regarding their presence at the time of occurrence. Non‑mention of seat of injuries and the sequence in which the firing took place further confirms their absence at the time when the deceased was done to death.

18. The most astonishing fact which has emerged from the evidence is that neither P.W.1 or any other witness informed the police about the occurrence once it was complete. Investigating Officer Riaz when examined as P. W. 11 did not know the name of the person who informed him at 10‑45 a.m. about the occurrence, rather the whole matter is shrouded in mystery. This again is a pointer to the fact that the occurrence was not witnessed by either P.W.1 or P.W.2. The first reaction when the occurrence is complete is to inform the police and naturally only those persons who are closely connected with the deceased take upon themselves the responsibility to inform the police lest some damaging facts may not be revealed by any other informant.

19. Zafar Iqbal another Investigating Officer when examined as P. W. 9 stated that during his investigation he found that there was no worthwhile evidence connecting the accused with the commission of offence and his investigation revealed that only one person with pistol was seen running away from the scene of occurrence.

20. In a murder case where question of life and death is involved qualms of conscience require a. very close scrutiny of the evidence when a case is bristling with previous enmity between the parties corroboration shall always be a rule. I am afraid except statements of P.W.1 and P.W.2 there is no corroboration. Three persons were given role of firing at the deceased and both the witnesses are unanimous that four shots were fired, the recovery of three empties from the spot and two injuries on the person of the deceased having been found to be fire‑arm Wounds by the doctor who performed the post‑mortem examination further has created dents in the prosecution case. In the ultimate analysis benefit of all this doubt has to go to the accused. Nominating totally innocent persons and changing the stance subsequently has driven the last nail in the coffin of the prosecution case. In these circumstances for the safer dispensation of criminal justice I am convinced in my mind that benefit of doubt created has to go to the accused. Resultantly their appeals succeed and conviction and sentence recorded by the trial Judge vide his judgment, dated 29‑2‑2000 is set aside. Appellants shall be released forthwith if not required in any other case.

21. Criminal Revision for reasons rendered in this judgment has no merit and is dismissed.

H.B.T./M‑459/L Appeals accepted.