PLJ 2021 Cr.C. (Lahore) 56 (DB)
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b)/34--Conviction and sentence--Challenge to--Qatl-e-amd--Deceased was murdered on 02.06.2014 at 5:30 a.m. in his fields regarding which FIR was registered on 02.06.2014 at 8:35 a.m. on written application moved by complainant (real brother of deceased) with unexplained delay of three hours whereas distance between place of occurrence and police station is about 4-K.Ms--Well mentioned in column No. 4 of FIR appellant has been nominated in FIR whereas appellants were not nominated in FIR and have been introduced as accused on 30.6.2014 by moving written application by complainant P.W.3 on basis of extra-judicial confession made by them before complainant P.W.3 and P.W.6 as Stated by them complainant P.W.3 and P.W.6) in their statements (examination-in-chief) which being joint one is inadmissible evidence--Complainant P.W.3 and P.W.6 (eye-witnesses) further stated in their statements (examination-in-chief) that on 02.06.2014 at about 5:30 a.m. deceased went to his field (square No. 55) for watering crops through his servant (appellant), they went out for asking about turn of water and saw that in Kila No. 22, three unknown persons caught hold of deceased from his legs and arms and forcibly lay down on ground, meanwhile, appellant gave Kassi blow which landed on neck of deceased--Complainant P.W.3 stated in his cross-examination that his house is situated at a distance of five square from place of occurrence--P.W.6 stated in his
cross-examination that he and (given up P.W) did not have turn of water--Scaled site plan shows that houses of these two
eye-witnesses are no: situated near place of occurrence which is situated out of Abadi of village--Both these witnesses, were chance witnesses, but have failed to establish their presence at time of occurrence at place of occurrence with their stated reasons--Post-mortem report shows that post-mortem on dead body of deceased was conducted on 02.06.2014 at 3:30 p.m. with delay of about 10-hours--Such delay is generally suggestive of a real possibility that time had been consumed by police in procuring and planting eye-witnesses and in cooking up a story for prosecution before preparing police papers necessary for getting a post-mortem examination of dead body conducted--In view of above discussion, we entertain serious doubt in our minds regarding participation of appellants in present case. It is settled principle of law that for giving benefit of doubt, it is not necessary that there should be many circumstances creating doubt--If there is a circumstance which creates reasonable doubt in the prudent mind about the guilt of an accused, then he would be entitled to its benefit not as a matter of grace or concession, but as of right.
[Pp. 62, 63 & 64] A, B & C
2017 SCMR 564 and 2011 SCMR 1190.
Mr. Shafiq Ahmad Bhutta, Advocate for Appellants.
Mr. Luqman Ayub, Advocate for Respondents/Complainant.
Rai Akhtar Hussain, DPG for State.
Date of hearing: 16.1.2019.
PLJ 2021 Cr.C. (Lahore) 56 (DB)Present: Sadaqat Ali Khan and Shehram Sarwar Ch., JJ.MUHAMMAD TARIQ etc.--AppellantsversusSTATE etc.--RespondentsCrl. A. No. 131-J, Crl. Rev. No. 352 and M.R. No. 153 of 2016,heard on 16.1.2019.
Judgment
Sadaqat Ali Khan, J.--This single judgment shall dispose of Criminal Appeal No. 131/J of 2016 filed by Muhammad Tariq, Muhammad Abid and Muhammad Azeem appellants (against their convictions), Criminal Revision No. 352 of 2016 filed by Umar Bahadar complainant P.W.3 and Murder Reference No. 153 of 2016 sent by the learned trial Court for confirmation of death sentence of Muhammad Tariq (appellant) or otherwise as all the above mentioned matters have arisen out of the same judgment dated 21.01.2016 passed by learned Addl. Sessions Judge, Tandlianwala, District Faisalabad according to which appellants were convicted and sentenced as under:
U/S 302(b)/34 PPC
Sentenced to death for committing Qatl-i-Amd of Ameer Hamza with compensation of Rs. 1,00,000/-
to the legal heirs of the said deceased under section 544-A Cr.P.C. and in default whereof to undergo S.I, for six months.
2. Muhammad Imran appellant
U/S 302(b)/ 34 PPC
Sentenced to imprisonment for life as Tazir for committing Qatl-i-Amd of Ameer Hamza with compensation of Rs. 1,00,000/- to the legal heirs of the said deceased under section 544-A Cr.P.C. and in default whereof to undergo S.I. for six months. Benefit of Section 382-B Cr.P.C. was extended to him.
3. Muhammad Azeem appellant
U/S 302(b)/ 34 PPC
Sentenced to imprisonment for life as Tazir for committing Qatl-i-Amd of Ameer Hamza with compensation of Rs. 1,00,000/- to the legal heirs of the said deceased under section 544-A Cr.P.C. and in default whereof to unaergo S.I. for six months. Benefit of Section 382-B Cr.P.C. was extended to him.
in case FIR No. 285 dated 02.06.2014 under Section 302/34 PPC, Police Station Tandlianwala, District Faisalabad.
2. The facts of the case have been stated by Umar Bahadar Complainant P.W.3 (real brother of Ameer Hamza deceased) in his statement before the learned trial Court which is hereby reproduced for narration of the facts:
Stated that on 2.6.2014 at about 5.30 A M. Amneer Hamza my brother went to square No. 55, for watering crops through his servant Mohammad Tariq. I alongwith Ahmad Hassan and Barkat Ali went out for asking out turn of watering, we saw that in Killa No. 22, three a unknown persons caught hold my brothers from his logs and arms and forcibly lay down on the land. We saw that Tariq accused made Kassi blows which hit on neck of any brother, we raised lalkara and accused fled away. We rushed towards my brother, but he succumbed to the injuries in my lab. Accused took shirt of my brother which contain Rs. 1800/- cell phone, mobile phone and Motor cycle CD.70. Motive behind this occurrence is that accused Tariq had taken, advance money from my brother, my brother asked about the return money on this grudge accused murder my brother. I left the dead body of my brother in the safe custody of Ahmad Hassan and Barkat Ali and went out for registration of FIR. in the way to police station when 1 reached in Jalla More I met with Mohammad Mansha S.I and I submitted application Ex.PB which bears my signature as Ex.PB/1 Police came at the place of occurrence with me and I.O. took blood stained earth into possession through recovery memo. Ex.PC which bears my signature as Ex.PC/1 and also signed by Ahmad Hassan and Barkat Ali. On 2.6.2014 we took my brother for, post-mortem and after post-mortem I received the dead body of my brother through receipt Ex.PD. which bsars my signature as Ex PD/1. On 3-06-14 I filed application to ASP T/wala for nominated of accused Muhammad Azeem and Mohammad Imran. These accused confessed their guilt before me, Ahmad Hassan and Barkat Ali PWs. I fully identified these accused. Application for nomination of accused is Ex.PB/2. Accused be punished.
3. After registration of the case, investigation started and on completion of the same report under Section 173 Cr.P.C was submitted in the trial Court.
4. Learned trial Court after observing legal formalities provided under the Criminal Procedure Code framed the charge against the appellants to which they pleaded not guilty and prosecution evidence was summoned.
5. The prosecution produced following witnesses during the trial before the learned trial Court:
Muhammad Akram
P.W.1
Muhammad Rafique
P.W.2
Umar Bahadar (Complaisant)
P.W.3
Safdar Ali
P.W.4
Muhammad Ibrahim
P.W.5
Ahmad Hassan
P.W.6
Muhammad Mansha S.I.
P.W.7
Dr. Zaid Ali
P.W.8
Mehmood Akbar Nizami
P.W.9
Dost Muhammad
P.W.10
whereas P.W. Barkat Ali has been given up being unnecessary and while tendering curtain documents i.e. Ex.P.A. to Ex.P.Q closed its evidence.
6. Medical evidence was furnished by Dr. Zaid Ali P.W.8 who conducted post-mortem examination on the dead body of Ameer Hamza deceased and observed as under:-
“INJURIES
1. Incised wound measuring 5 inch x 2 inch in front and lower part of neck in transverse position, major arteries of neck and wind pipe cutted.
2. Skin cut injury measuring 02 inch x ½ inch infront and middle of neck. 01 inch above from injury No. 1.
3. incised wound 01 inch x ¼ inch at frontal and upper part of neck (skin deep).
4. Multiple abrasion on right side of face and front of chest and back. 1 ½ inch above from injury No. 2.
Opinion: injury No. 1 was the cause of death. This injury was cutted larynx and trachea (wind pipe) which leads to respiratory arrest and leading to death.
After post-mortem examination, I handed over stitched dead body, clothes and all relevant papers related to post-mortem were handed over to Muhammad Rafique 238-C. Carbon copy of post-mortem report No. 12/14 which is Ex.P.N in my handwritings and bear my office seal and signature. I also prepared pictorial diagram showing the seat of injury which is Ex.P.N/1 is also in my handwriting and bears seal and signature. I also endorsed injury statement as Ex.P.N/2 which bears my office seal and signature. I also endorsed inquest report which is Ex.P.N/3 which also bears my office seal and signature.
7. On the other hand, statements of the appellants were recorded under Section 342 Cr.P.C. in which they refuted the allegations levelled against them by the prosecution. The appellants neither opted to appear as witness under Section 340(2) Cr.P.C. nor produced any oral as well as documentary defence evidence. In reply to the question “Why this case against you and why the PWs deposed against you?” Muhammad Tariq appellant replied as under:
“The occurrence was unseen and blind murder. Complainant falsely roped me in this false case. The PWs are related interse and falsely deposed against me.”
Likewise, in reply to the question “Why this case against you and why the PWs deposed against you?” Muhammad Imran appellant replied as under:
“I was servant with the deceased and complainant. I left the job. Complainant involved me in this false case only to force me to carry on this job without salary. I was not nominated in the FIR, later on pws in connivance with the complainant falsely roped me in this false case and prepared false story of extra judicial confession against me. PWs are related interse and have falsely deposed against-me.”
In the same manner, in reply to the question ‘Why this case against you and why the PWs deposed against you?” Muhammad Azeem appellant replied as under:
“I was servant with the deceased and complainant. I left the job. Complainant involved me in this false case only to force me to carry on this job without salary. I was not nominated in the FIR, later on PWs in connivance with the complainant falsely roped me in this false case and prepared false story of extra judicial confession against me. PWs are related interse and have falsely deposed against me.”
8. After conclusion of the trial, learned trial Court convicted the appellants with above stated sentences. Hence this appeal and criminal revision.
9. Learned counsel for the appellants has contended that:
i. the judgment of the trial Court is against law and facts and is liable to be set-aside;
ii. it is submitted that the story of the prosecution is improbable and not believable;
iii. it is further submitted that prosecution has failed to prove its case against the appellants beyond shadow of doubt and the learned trial Court wrongly convicted appellants in surmises and conjectures;
iv. and lastly submitted for the acceptance of the appeal of the present appellants and their acquittal.
10. On the other hand, learned DPG assisted by learned counsel for the complainant has vehemently opposed the appeal and submitted that the prosecution has proved its case beyond any shadow of doubt against the appellants with solid evidence and prayed for the dismissal, of the present appeal. Learned counsel for the complainant while arguing criminal revision submits that the learned trial Court has wrongly awarded lessor punishment to the respondents/Convicts (Muhammad Imran and Muhammad Azeem) and lastly prayed for enhancement of sentence of the said respondents/convicts.
11. We have heard the learned counsel for the appellants as well as learned DPG assisted by learned counsel for complainant and perused the record.
12. The detail of prosecution case has already been given in para 2 of this judgment, therefore, there is no need to repeat the same to avoid duplication and repetition.
13. Ameer Hamza was murdered on 02.06.2014 at 5:30 a.m. in his fields regarding which FIR Ex.P.E was registered on 02.06.2014 at 8:35 a.m. on the written application Ex.P.B moved by Umar Bahadar complainant P. W.3 (real brother of Ameer Hamza deceased) with unexplained delay of three hours whereas the distance between the place of occurrence and police station is about 4-K.Ms. well mentioned in column No. 4 of FIR Ex.P.E. Muhammad Tariq appellant has been nominated in the FIR whereas Muhammad Imran and Muhammad Azeem appellants were not nominated in the FIR and have been introduced as accused on 30.6.2014 by moving written application Ex.P.B/2 by Umar Bahadar complainant P.W.3 on the basis of extra-judicial confession made by them before Umar Bahadar complainant P.W.3 and Ahmad Hassan P.W.6 as Stated by them (Umar Bahadar complainant P.W.3 and Ahmad Hassan P.W.6) in their statements (examination-in-chief) which being joint one is inadmissible evidence. Umar Bahadar complainant P.W.3 and Ahmad Hassan P.W.6 (eye-witnesses) further stated in their statements (examination-in-chief) that on 02.06.2014 at about 5:30 a.m. Ameer Hamza deceased went to his field (square No. 55) for watering crops through his servant Muhammad Tariq (appellant), they went out for asking about turn of water and saw that in Kila No. 22, three unknown persons caught hold of Ameer Hamza deceased from his legs and arms and forcibly lay down on the ground, meanwhile, Muhammad Tariq appellant gave Kassi blow which landed on neck of Ameer Hamza deceased. Umar Bahadar complainant P.W.3 stated in his cross-examination that his house is situated at a distance of five square from the place of occurrence. Ahmad Hassan P.W.6 stated in his cross-examination that he and Barkat Ali (given up P.W) did not have turn of water. Scaled site plan Ex.P.O shows that houses of these two eye-witnesses are not situated near the place of occurrence which is situated out of Abadi of village. Both these witnesses were the chance witnesses, but have failed to establish their presence at the time of occurrence at the place of occurrence with their stated reasons. Reliance is placed on case titled “Arshad Khan vs. The State” (2017 SCMR 564) in which Hon’ble Supreme Court of Pakistan has observed at pages 566 and 567 as under:
“Both the eye-witnesses produced in this case, i.e. Zahid Khan complainant (PW8) and Muhammad Sadiq (PW9) were very closely related to Mst. Naheed Akhtar deceased and they were admittedly chance witnesses. The said witnesses had maintained before the trial Court that at the relevant time they were proceeding towards a mosque in order to offer Fajar prayers but a bare look at the site-plan of the place of occurrence shows that the houses of the said eye-witnesses were not situated close to the house of occurrence and they were situated so far away that they could not find any mention in the site-plan of the place of occurrence at all. No mosque near the house of occurrence had been shown in the said site-plan and, thus, the stated reason for presence of the said eye-witnesses near the place of occurrence never stood established on the record through any evidence whatsoever.”
14. Post-mortem report Bx.P.N shows that post-mortem on the dead body of Ameer Hamza deceased was conducted on 02.06.2014 at 3:30 p.m. with delay of about 10-hours. Such delay is generally suggestive of a real possibility that time had been consumed by the police in procuring and planting eye-witnesses and in cooking up a story for the prosecution before preparing police papers necessary for getting a post-mortem examination of the dead body conducted. Reliance is placed on case titled “Irshad Ahmad vs. The State” (2011 SCMR 1190).
15. Umar Bahadar complainant P.W.3 stated regarding motive of the occurrence that Muhammad Tariq appellant had taken advance money from Ameer Hamza deceased, who asked him to return the same, on this grudge, the appellants have committed murder of Ameer Hamza deceased. Both these eye-witnesses (Umar Bahadar complainant P.W.3 and Ahmad Hassan P.W.6) did not give any detail of the money. Ahmad Hassan P.W.6 stated in his cross-examination that accused had no previous enmity with Ameer Hamza deceased. Considering the peculiar circumstances of this case, prosecution has failed to prove the motive.
16. Ahmad Hassan P.W.6 stated in his statement (examination-in-chief) that on 13.07.2014 Muhammad Tariq appellant during interrogation disclosed and got recovered Kassi P-4 from Dhari of Zakir Tarana from the room, of Imran appellant, which is not in exclusive possession of Muhammad Tariq appellant, hence, this recovery is not believable.
17. In view of the above discussion, we entertain serious doubt in our minds regarding participation of the appellants in the present case. It is settled principle of law that for giving benefit of doubt, it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in the prudent mind about the guilt of an accused, then he would be entitled to its benefit not as a matter of grace or concession, but as of right. Reliance is placed on case reported as “Muhammad Akrarn vs. the State” (2009 SCMR 230).
18. For the foregoing reasons, this appeal is allowed, conviction and sentences of Muhammad Tariq, Muhammad Imran and Muhammad Azeem appellants awarded by the learned trial Court through impugned judgment are hereby set aside and they are acquitted of the charges. They (Muhammad Tariq, Muhammad Imran and Muhammad Azeem appellants) are directed to be released forthwith if not required in any other case. Murder Reference is answered in NEGATIVE and death sentence of Muhammad Tariq appellant is NOT CONFIRMED.
19. In view of above decision, Crl. Revision filed by Umar Bahadar complainant P.W.3 has become infructuous and is disposed
of.
(A.A.K.) Appeal allowed
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