Law: Pakistan Penal Code, 1860

Section: 302(B),148,149,34, 109,324, 392, 395, 120-B, 201, 202, 511

Law: Code of Criminal Procedure (CrPC), 1898

Section: 161,164,342,497,498,540,561-A173,342,340(2),382-B

Law: Qanun-e-Shahadat (10 of 1984)

Section: 132,133,140,141,150,151

ORDER

 Wakeel Zafar son of Muzaffar Ahmad, Caste Tatla, resident of Chak No.185/R.B, Abadi Budh Singh Wala, District Faisalabad and Waseem Hassan son of Nabeel Ahmad, Caste Tatla Jutt, resident of Chak No.186/R.B, Abadi Dogran Wala, District Faisalabad, the appellants No.2 and 3/convicts were involved in case F.I.R. No.276-2013, dated 05.05.2013, registered under Sections 302, 148, 149 PPC, at police station, Chak Jhumra, District Faisalabad and was tried by the learned Additional Sessions Judge, Faisalabad. The learned trial court seized the matter vide its judgment dated 03.11.2020 and convicted the appellants No.2 & 3-convicts under Section 302 (B) PPC, and each of them was sentenced to imprisonment for life. The appellants No.2 & 3/convicts were also directed to pay Rs.5,00,000/- each as compensation to the legal heirs of the deceased, and in case of default in payment of the fine amount, each of them would further undergo six months SI. The benefit of Section 382-B of Cr.P.C. was also extended in favor of the appellants No.2 & 3-convicts.

2.    Feeling aggrieved by the judgment of the learned trial court, Wakeel Zafar and Waseem Hassan, appellants No.2 & 3, along with their co- accused, impugned the same by way of filing instant Criminal Appeal No.62458-J of 2020. It would not be out of context to mention here that the legal heirs of the deceased-Safdar Iqbal had entered into a compromise with the appellant No.1-Bilal Muzaffar alias Heera, as the legal heirs of the deceased-Safdar Iqbal had forgiven him (the appellant No.1-Bilal Muzaffar alias Heera) in the name of Almighty Allah and had no objection if the appellant No.1-Bilal Muzaffar alias Heera was acquitted of the charge against him. As a result, appellant No.1, Bilal Muzaffar alias Heera, was acquitted of the charge on 19.04.2022, in terms of a compromise effected between the parties. However, instant appeal was alive only to the extent of appellants No.2 & 3, Wakeel Zafar and Waseem Hassan.
3.    The prosecution story as alleged in the F.I.R lodged on the application (Ex. P-QQ) of Zeeshan Iqbal (since murdered)-the complainant is that the appellants No.2 & 3, Wakeel Zafar and Waseem Hassan along with their co-accused persons, armed with their respective weapons were present at the Dera of Muzaffar Tatla. On 05.05.2013, at about 05:15 p.m. the complainant (since murdered) along with his uncle, Muhammad Riaz, Irfan was on a motorcycle whereas, father of the complainant, Safdar Iqbal (since dead), Ghulam Murtaza alias Gogi Cheema (since dead) and brother-in-law of Gogi Cheema, namely Ali Raza (since dead) were on a car bearing registration No. LEE-9772, driven by Gogi Cheema and the father of the complainant, was sitting in the front seat of the car while Ali Raza (since dead) was sitting in the rear seat. When they reached at Dera of Muzaffar Tatla, as soon as father of complainant, Safdar Iqbal (since dead) de-boarded from the car and sat on a cot, and Ghulam Murtaza alias Gogi Cheema and Ali Raza (since dead) were de-boarding from the car, then the accused persons-Wakeel Zafar and Waseem Hassan, appellants No.2 & 3, along with their co-accused persons while armed with their respective weapons

murdered the father of the complainant namely Safdar Iqbal (deceased), Ghulam Murtaza alias Gogi Cheema (deceased) and Ali Raza (deceased) by making fire shots.
4.    The motive behind the occurrence was that two days ago, a quarrel occurred between “Chachazad” of complainant Umer Nawaz and the accused persons. The same was patched up by the respectable of the locality, but the accused persons nourished the said grudge, resulting in the alleged occurrence.
5.    After registration of the case, initially, the investigation of this case was conducted by Muhammad Hussain, Inspector (PW-17). Muhammad Sajid, S.I. (PW-13), arrested the accused persons, Wakeel Zafar and Waseem Hassan. After that, investigation of this case was entrusted to Abdul Sattar, Inspector, (PW-15) who, having found the appellants No.2 & 3 guilty, prepared a challan under section 173 Cr.P.C. and sent the same to the court of competent jurisdiction while placing the names of all accused persons in Column No.3 of the challan. On 12.10.2020, the trial court formally charge- sheeted appellant Nos. 2 & 3, to which they pleaded not guilty and claimed trial. In support of its version, the prosecution produced as many as nineteen
(19) witnesses.

6.    After the closure of prosecution evidence, appellant Nos. 2 & 3 were examined under Section 342 of Cr.P.C., wherein neither they opted to appear as their own witnesses in terms of Section 340 (2) Cr.P.C. nor to produce any evidence in their defence. In response to a particular question that why this case was against them and why the PWs had deposed against them, the appellants No.2 & 3, Wakeel Zafar and Waseem Hassan made the following depositions: -
“My answer of this question is the same as that of my co-accused Bilal Muzaffar alias Heera s/o Muzaffar Ahmad”.

7.    After recording evidence and evaluating the evidence available on record in light of the arguments advanced by both sides, the trial court found the prosecution version proved beyond any shadow of reasonable doubt, which resulted in the appellants' conviction in the afore-stated terms.
8.    Arguments advanced by the learned counsel for the parties have been heard and available record has been perused.
9.    In the instant case, the incident took place on 5/5/2013 at 5:15 p.m., in the area of Chak No. 185/R.B. Budh Singh Wala, within the limits of Police Station Chak Jhumra, Faisalabad and the same was reported at 06:15
p.m. by Zeeshan Iqbal (since murdered)-the complainant, son of Safdar Iqbal-the deceased, paternal son of Ghulam Murtaza alias Gogi Cheema- deceased through the written application (Ex. PQQ) to Muhammad Hussain Inspector (PW-17) at the place of occurrence, who recorded the police proceedings (Ex. PQQ/2) on it. Muhammad Hussain Inspector (PW-17) sent the same through Muhammad Nawaz 1053/C (not cited as a witness) to the police station Chak Jhumra, District Faisalabad, for formal registration of FIR, based on which first information report (Ex. PQQ/1) was recorded by Arshad Ali 119/HC (PW-14) at 06:30 p.m. with delay of one-hour (1) and fifteen (15) minutes. The inter-se distance between the place of occurrence and the police station is three (3) miles. Zeeshan Iqbal (since murdered)-the complainant was murdered during the trial. On perusal of police proceedings (Ex. PQQ/2) at the bottom of the written application (Ex. PQQ), it reveals that Muhammad Hussain, Inspector (PW-17) reached the spot and incorporated proceedings at 06:15 p.m. on 05.05.2013. Muhammad Hussain, Inspector (PW-17)-investigating officer deposed during examination-in-chief that: -
“—On 05.05.2013, I was posted as Incharge Investigation at P.S Chak Jhumra, Faisalabad. On the same day, after receiving the information regarding the occurrence at police station, I proceeded to the place of occurrence where the complainant of case presented before

me written application Exh.P.QQ and I recorded my police proceedings Exh.P-QQ/2 on it and sent the same through Muhammad Nawaz 1053/C to the police station for registration of formal FIR. I inspected the dead body of Safdar Iqbal deceased and prepared injury statement Exh.P-KK and Inquest Report Exh.P-LL of the said deceased. I also inspected the dead body of Ali Raza deceased and prepared Injury Statement Exh.P-NN and Inquest Report Exh.P-PP of the said deceased. I escorted the dead body of Safdar Iqbal deceased through Irfan Asghar 33757/C, dead body of Ghulam Murtaza through Ghulam Mustafa 6859/C and dead body of Ali Raza through Adil Usman 7161/C to the mortuary of THQ Hospital, Chak Jhumrah, District Faisalabad---”
No family members of Safdar Iqbal, Ghulam Murtaza alias Gogi Cheema, and Ali Raza, the deceased persons, reported the incident to the police soon after the incident. One hour after the incident, police reached the place of the occurrence and Zeeshan Iqbal (since murdered)-the complainant handed over a written application (Ex. PQQ) to Muhammad Hussain Inspector (PW-17) at 6:15 p.m. On perusal of police “Proceeding” endorsed on application/complaint (Exh. PQQ), it revealed that the occurrence was reported at 06:15 p.m. on 05.05.2013. The postmortem examination of the dead bodies was conducted by Dr. Saad Maroof Saeed (PW-12) on 06.05.2013 at 08:00 a.m. of Ghulam Murtaza, at 09:00 a.m. of Safdar Iqbal, and 10:15 a.m. of Ali Raza, respectively with delay of fifteen (15) hours, sixteen (16) hours, and seventeen (17) hours respectfully, then delay in conducting the postmortem examinations was not explained by the prosecution. The fact, however, remains that the post-mortem examination was delayed for fifteen (15) hours, sixteen (16) hours, and seventeen (17) hours, respectively. Dr. Saad Maroof Saeed (PW-12) deposed during examination-in-chief that he received police papers along with the dead body of Ghulam Murtaza at 07:40, at 8:15 a.m. with the dead body of Safdar Iqbal,

and at 8:35 a.m. with the dead body of Ali Raza. Dr. Saad Maroof Saeed (PW-12) deposed during the cross-examination that: -
“---I received the police papers on next day i.e. on 06.05.2013, at 07:40 A.M. I received police papers of three deceased persons at different times that is why the time of receiving of police papers was different---”
If, after endorsing police “proceedings” on the application/complaint (Ex. PQQ) at 06:15 p.m. on 05.05.2013, the dead bodies were shifted to THQ Hospital, Chak Jhumra, District Faisalabad, then the delay in conducting the postmortem examination was not explained by the prosecution. On perusal of inquest reports (Ex. PHH, PLL, and PPP) prepared by Muhammad Hussain, Inspector (PW-17)-investigating officer, reveals that a copy of FIR was not sent with the dead bodies. Dr. Saad Maroof Saeed (PW-12) deposed during the cross-examination that: -
“----Exh.P-FF is the correct carbon copy of post-mortem report of Ghulam Murtaza deceased and Exh.P-FF/1 and Exh.P-FF/2 are the pictorial diagrams showing the seat of injuries, which are in my hand writing and bears my signatures and stamp. I also endorsed injury statement Exh.P-GG and inquest report Exh.P.HH------Exh.P-JJ is the correct carbon copy of post-mortem report and Exh.P-JJ/1 and Exh.P-JJ/2 are the pictorial diagrams showing the seat of injuries which are in my hand writing and bears my signatures and stamp. I also endorsed injury statement Exh.P-KK and inquest report Exh.P-LL----Exh.P-MM is the correct carbon copy of post-mortem report and Exh.P-MM/1 and Exh.P-MM/2 are the pictorial diagrams showing the seat of injuries which are in my hand writing and bears my signatures and stamp. I also endorsed injury statement Exh.P-NN and inquest report Exh.P-PP--”
This also gets support from the contents of the inquest reports (Ex. PHH, PLL, and PPP) wherein it was mentioned as below: -

اور ہمیں صلح کا جھانسہ اپنے ڈیرہ ازاں مظفر تتلہ
پر بلوا کر والدم صفدر علی ، گوگی چیمہ اور علی رضا کو بے دردی کے ساتھ قتل کر دیا۔ وقوعہ ہذا کو میرے علاوہ میرے انکل محمد ریاض اور محمد عرفان ولد غلام مصطفٰی چیمہ سکنہ 160 رب بچشم خود دیکھا۔ ذیادتی ہوئی کاروائی کی جائے ۔ اس تحریر پر مقدمہ درج رجسٹر ہو کر تفتیش مقدمہ میرے سپرد ہوئی ہے۔