PLJ 2021 Cr.C. (Lahore) 257 (DB)Present: Sadaqat Ali Khan and Shehram Sarwar Ch., JJ.ABDUL MAALIK and another--AppellantsversusSTATE--RespondentCrl. A. No. 816, M.R. No. 243 & PSLA No. 26790 of 2017,heard on 9.11.2020.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conviction and sentence--Challenge to--Benefit of doubt--Qatl-e-amd--Photographic narration of occurrence by all eye-witnesses by assigning specific role to each of accused including appellants in an extreme crisis and panic situation is highly improbable and not believable especially when occurrence took place in dark hours of night and witnesses had statedly seen occurrence in lights of official vehicle as mentioned in FIR--Seven accused mentioned above have already been acquitted by trial Court--In view of motive story, complainant contracted Nikah with injured without consent of her parents who were not ready for her Rukhsati, in this way, complainant was prime target of accused who statedly was present at time of occurrence at place of occurrence but did not receive any injury during occurrence at hands of accused--Blessing him with unbelievable Courtesy and mercy shown to him by accused knowing well that he would depose against them by leaving him unhurt, is absolutely unbelievable story--Recovery of pistols on pointing of appellants in absence of positive report of PFSA regarding matching of crime empties with weapons of offence is inconsequential--Held: It is settled principle of law mat 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 prudent mind about guilt of accused, then he would be entitled to its benefit not as a matter of grace or concession, but as of right--Appeal was accepted. [Pp. 262 & 263] A, B, C & D
2019 SCMR 2006, 2017 SCMR 596 and 2009 SCMR 230.
M/s. Barrister Momin Malik, Advocate and Babar Hussain Warraich, Advocate (on State expense) with Pervaiz Hussain Appellant on bail.
M/s. Munir Ahmad Bhatti, Mehru Munir Bhatti and Mian Asif Hayat, Advocates for Complainant.
Rai Akhtar Hussain, DPG for State.
Date of hearing: 9.11.2020.
Judgment
Sadaqat Ali Khan, J.--Appellants Abdul Maalik and Pervaiz Hussain along with Sardar Bakhsh, Khaliq Dad, Iqbal Hussain, Niaz Mohammad alias Gul Niazi, Shahid Hameed, Mst. Sharifan Bibi and Mst. Kousar Bibi co-accused (since acquitted) have been tried by learned trial Court in private complaint under Sections 302, 324, 334, 336, 337-F(i), 337-A(i), 337-L2, 186, 353, 148, 149, PPC arising out of case FIR No. 174 dated 30.06.2014 Police Station Mankera, District Bhakkar and were convicted and sentenced vide judgment dated 29.3.2017 as under:
1. Abdul Maalik appellant
U/S. 302(b), PPC Sentenced to death as Tazir for committing Qatl-i-Amd of Inayat Ullah deceased with compensation of Rs. 2,00,000/- payable to the legal heirs of deceased under Section 544-A, Cr.P.C. and in default whereof to undergo simple imprisonment for three months.
U/S. 337-F(i), PPC Sentenced to one year R.I. with payment of Daman amounting to Rs. 20,000,/- to Mst. Aasia Bibi injured.
2. Pervaiz Hussain appellant
U/S. 324, PPC Sentenced to ten years R.I. with fine of Rs. 20,000/- for making murderous assault upon Mst. Aasia Bibi and in default whereof to undergo simple imprisonment for two months.
U/S. 336, PPC Sentenced to ten years R.I. as Tazir with payment of ½ of Arsh amounting to Rs. 10,87,288/- to Mst. Aasia Bibi.
U/S. 334, PPC Sentenced to ten years R.I. as Tazir with payment of Arsh equal to Diyat Rs. 21,74,577/- to Mst. Aasia Bibi.
U/S 337-F(i), PPC Sentenced to one year R.I. as Tazir with payment of Daman amounting to Rs. 10,000/- to Mst. Aasia Bibi.
All the sentences were ordered to be run concurrently with benefit of Section 382-Cr.P.C.
2. Appellants have filed this criminal appeal against their convictions and learned trial Court has sent Murder Reference for confirmation of death sentence of Abdul Maalik or otherwise, Ihsan Ullah complainant also filed PSLA against acquittal of accused/ respondents which are being decided through this single judgment.
3. Brief facts of the case have been stated by Ihsan Ullah complainant P.W.8 in his statement before the learned trial Court, which is hereby reproduced for narration of the facts:
Stated that on 23.7.2012. I had contracted Nikah with Mst. Aasia Bibi d/o Haji Muhammad, Caste Cheenah, r/o Chan Yaroo Wala, Mauza Daggar Kotli Shumali, Tehsil Mankera, District Bhakkar but “Rukhsati” did not take place. Haji Muhammad, my father-in-law (Sussar) etc. wanted divorce from me but Mst. Aasia Bibi my wife had not agreed and she wanted to live with me. I tried my level best but my wife had not been given to me. Later on, on 30.6.2014, moved an application under Section 491, Cr.P.C. before learned Sessions Judge Bhakkar for recovery of my wife, Mst. Aasia Bibi. Learned Sessions Judge Bhakkar issued notice to SHO Police Station Sarai Mohajir for attendance of respondents Abdul Maalik etc. for 2.7.2014. I alongwith Inayat Ullah, Imtiaz Hussain, Khaliqdad came at Police Station Sarai Mohajir for pursuance of the petition under Section 491, Cr.P.C. I, Inayat Ullah, Imtiaz Hussain, Khaliqdad alongwith Muhammad Aslam ASI, Intizar Hussain, Akhtar Abbas Constables and one Lady Constable Sadaf reached at 9.00 p.m. on 30.6.2014 at the residential house of Abdul Maalik accused on official vehicle. Muhammad Aslam made noise for serving of the notices. In the meanwhile, Abdul Maalik armed with pistol .30 bore, Pervaiz Hussain armed with gun .12 bore, Khaliqdad armed with pistol .30 bore, Muhammad Iqbal armed with gun .12 bore, Kausar Bibi, Sharifan Bibi and Sardar Bakhsh armed with Sotas, Shahid Hameed empty handed. Niaz Muhammad alias Gul Niazi armed with sota and 4/5 unknown persons armed with deadly weapons came out from their house. First of all Sardar Bakhsh accused chanted lalkara to Inayat Ullah that how can they made courage for coming to their house and asked his co-accused that no person will be left alive. First of all Abdul Maalik accused fired at Inayat Ullah hitting him under the neck at front towards left side. Accused Khaliqdad gave second fire shot of pistol .30 bore to Inayat Ullah hitting him on the back of right palm who fell down. Niaz Hussain alias Gul Niazi gave Sota blow to Inayat Ullah hitting him on his right shin. Mst. Aasia Bibi came forward, in the meantime Pervaiz Hussain accused fired at Mst. Aasia Bibi with his .12 bore gun hitting on fried of her forehead. Pervaiz Hussain accused gave second fire shot to Aasia hitting on her right arm. Iqbal Hussain gave fire shot of .12 bore gun to Mst. Aasia Bibi my wife, which hit on front of her shoulder. Abdul Maalik accused fired to Aasia Bibi hitting on her front at the upper side of her chest towards right side. Pervaiz Hussain accused made fire shot of gun to Aasia Bibi, which hit her at upper front of her left knee, who fell down. Shahid Ameer, Sardar Bakhsh, Kausar Bibi. Sharifan Bibi armed with Dandas, attacked on police party, in result of which, Muhammad Aslam ASI sustained injuries and uniforms of the police officials were also torn. I alongwith Imtiaz Hussain, Khaliqdad rescued themselves while laying down behind the police vehicle and witnessed the occurrence in the light of said vehicle. All the accused persons managed their escape from the spot. I and PWs attended Inayat Ullah and Mst. Aasia Bibi. Inayat Ullah succumbed to the injuries at the spot and put Aasia Bibi on a cot.
Motive part of this occurrence is that I had contracted Nikah with Mst. Aasia Bibi prior to this occurrence but the parents of Mst. Aasia Bibi were not willing the “Rukhsati” of their daughter with me. Due to this reason, all the accused persons in furtherance of their common intention committed the brutal murder of Inayat Ullah and made murderous assault upon Aasia Bibi. On the receipt of information, police received at the spot and I got recorded my statement, which was read over to me and I put my signature on my statement as token of its correctness, which is Ex.P-L Case was registered. Police inspected the dead body of Inayat Ullah deceased and Mst. Aasia Bibi injured and dead body of Inayat Ullah was sent to Tehsil Headquarter Hospital Mankera, whereas Mst. Aasia Bibi was sent to District Headquarter Hospital Bhakkar. Later on, Mst. Aasia Bibi was referred to Nishtar Hospital Multan due to her critical condition.
On 28.8.2014, I again joined the investigation with the Investigating Officer along with Imtiaz. In our presence, Mst. Kausar and Mst. Sharifan Bibi produced their weapons of offence i.e. “Dandas” P-1 arid P-2 respectively and Investigating Officer secured the same vide recovery memo. Ex.P-M and Ex.P-N separately, attested by me and Imtiaz Hussain P.W. Investigating Officer also recorded my statement in this behalf.
From the day one, police did not investigate the case properly and declared the accused Sardar Bakhsh and Khaliqdad as innocent in this case and Investigating Officer also did not record the statement of Mst. Aasia Bibi, my wife correctly, Due to this reason and being dissatisfied with the investigation conducted by the local police, I have filed the instant private complaint Ex.P-O.
4. Arguments heard. Record perused.
Description: A5. Inayat Ullah was done to death whereas Mst. Aasia Bibi P.W.9 and Muhammad Aslam ASI P.W. 11 sustained injuries during the occurrence took place on 30.06.2014 at 9:00 p.m. at the vacant place in front of house of the appellants, FIR was lodged on the same night i.e. 30.06.2014 at 11:00 p.m. the statement Ex.P.J made by Ihsan Ullah complainant P.W.8 (cousin of Inayat Ullah deceased). Mst. Aasia Bibi injured P.W.9 is daughter of Haji Muhammad who allegedly contracted marriage with the complainant without consent of her parents. Ihsan Ullah complainant P.W.8, Mst. Aasia Bibi injured P.W.9, Imtiaz Hussain P.W. 10, Muhammad Aslam ASI injured P.W. 11 and Akhtar Abbas Shah constable P.W. 13 claim themselves to be the eye-witnesses of the occurrence. Abdul Maalik and Pervaiz Hussain (appellants), Sardar Bakhsh, Khaliq Dad, Iqbal Hussain, Niaz Mohammad alias Gul Niazi, Shahid Hameed, Mst. Sharifan Bibi and Mst. Kousar Bibi co-accused (since acquitted) have been introduced as accused in this case. Khaliq Dad co-accused was attributed firearm injury on the right hand of Inayat Ullah deceased, who was found innocent during the investigation and nothing was recovered from him. Likewise, Niaz Mohammad alias Gul Niazi was attributed sota blow which landed on the right shin of Inayat Ullah deceased, this accused has also been acquitted by the learned trial Court. Iqbal Hussain was attributed firearm injury on the left shoulder of Mst. Aasia Bibi injured P.W.9 but has been acquitted by the learned trial Court through the impugned judgment. Eye-witnesses (Ihsan Ullah complainant P.W.8, Mst. Aasia Bibi injured P.W.9, Imtiaz Hussain P.W.10, Muhammad Aslam ASI injured P.W.11 and Akhtar Abbas Shah constable P.W.13) stated in their statements before the learned trial Court that Abdul Maalik appellant made fire shot which hit on the neck of Inayat Ullah deceased. Pervaiz Hussain appellant made fire shot with .12-bore gun which hit on the forehead of Mst. Aasia Bibi injured P.W.9, his second fire shot hit on right arm of said Mst. Aasia Bibi. Fire shot made by Abdul Maalik appellant hit on upper right side of chest of Mst. Aasia Bibi injured P.W.9. Fire shot of Pervaiz appellant hit on left knee of Mst. Aasia Bibi injured PW.9. Shahid Hameed, Sardar Bakhsh, Mst. Sharifan Bibi and Mst. Kausar Bibi accused (since acquitted) armed with Dandas caused injuries on the person of Muhammad Aslam ASI injured P.W.11. Photographic narration of the occurrence by all the eye-witnesses by assigning specific role to each of the accused including appellants in an extreme crisis and panic situation is highly improbable and not believable especially when occurrence took place in the dark hours of night and witnesses had statedly seen the occurrence in the lights of official vehicle as mentioned in the FIR. Seven accused mentioned above have already been acquitted by the learned trial Court. Reliance is placed on case titled “Muhammad Ahmed and others vs. The State and others” (2019 SCMR 2006).
6. Shoukat Khan S.I. C.W.1 admitted in his cross-examination that FIR No. 136 dated 04.07.2014 under Section 155-C of the Police Order at Police Station Sarai Mohajir was registered against Muhammad Aslam ASI P.W. 11 with the allegation that he had illegally raided the house of the accused (appellants) of this murder case as their house was situated in Chak No. 210/TDA out of jurisdiction of his own police station i.e. Sarai Mohajir on the direction of learned Sessions Judge, Bhakkar. Muhammad Aslam ASI P.W. 11 to save his skin had shown himself as injured witness and appeared before the medical officer on 01.07.2014 i.e. following day of occurrence 30.06.2014 at 9:00 p.m. Dr. Abid Ali Khan P.W.4 observed one skin scratch on his head, one swelling on right side of his head and declared them as Shujjah-i-Khafifah. Considering the nature of injuries on his person and peculiar circumstances of this case possibility of fabrication in this respect cannot be ruled out.
Description: B7. In view of motive story, Ihsan Ullah complainant P.W.8 contracted Nikah with Mst. Aasia Bibi injured P.W.9 without consent of her parents who were not ready for her Rukhsati, in this way, Ihsan Ullah complainant P.W.8 was the prime target of the accused who statedly was present at the time of occurrence at the place of occurrence but did not receive any injury during the occurrence at the hands of the accused. Blessing him with unbelievable courtesy and mercy shown to him by the accused knowing well that he would depose against them by leaving him unhurt, is absolutely unbelievable story. Reliance is placed on case titled “Mst. Rukhsana Begum and others vs. Sajjad and others” (2017 SCMR 596).
Description: C8. Recovery of pistols on pointing of the appellants in absence of positive report of PFSA regarding matching of crime empties with weapons of offence is inconsequential.
Description: D9. In view of the above discussion, we entertain serious doubt in our minds regarding participation of the appellants and acquitted accused (Sardar Bakhsh, Khaliq Dad, Iqbal Hussain, Niaz Mohammad alias Gul Niazi, Shahid Hameed, Mst. Sharifan Bibi and Mst. Kousar Bibi) in the present case. It is settled principle of law mat 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 the 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 Akram vs. The State” (2009 SCMR 230).
10. For the foregoing reasons, the instant criminal appeal is accepted and conviction and sentence of the appellants awarded by the learned trial Court through the impugned judgment are hereby set aside. Abdul Maalik and Pervaiz Hussain appellants are acquitted of the charges. Abdul Maalik appellant is directed to be released forthwith if not required in any other case. Pervaiz Hussain appellant is on bail. His surety stands discharged. Murder Reference is answered in NEGATIVE and death sentence of the appellant Abdul Maalik is NOT CONFIRMED.
11. In view above decision, PSLA filed by the complainant against acquittal of respondents/accused having no merits is dismissed.
(A.A.K.) Appeal accepted
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