PLJ 2021 Cr.C. (Note) 33
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Criminal Procedure Code, (V of 1898), S. 410--Conviction and sentence--Challenge to--Benefit of--It is not denied that out of eleven accused, 10 were acquitted by trial is Court on same evidence--As per contents of First Information Report role attributed to present appellant was that he made fire shot with Rifle hitting on right side of chest of deceased--Ocular account was furnished by PW-7 complainant and PW-8--While before Court both witnesses deviated from their earlier statements recorded u/S. 161, Cr.P.C. qua mode, venue and kind of weapon used by accused during occurrence--It is an admitted fact that this case was investigated twice by two different agencies--Right from first day of incident till conclusion of second investigation, prosecution case was that present appellant made fire shot with Rifle on right side of chest of deceased--S.I. who was first Investigating Officer of this case while appearing before Court as PW-11 in cross examination stated that during investigation none of PWs including complainant got recorded any supplementary statement for correction of record regarding accused appellant being armed with Pistol instead of Rifle--It is an admitted fact that fire-arm injuries assigned to co-accused since acquitted on neck and chin were not found on person of deceased by PW-10 Dr. who provided medical evidence--Moreover, if size and locale of wounds as mentioned in PMR are taken into consideration it cannot be said with certainty that those were caused with Rifle--So, medical evidence is irreconcilable with ocular account--Admittedly eye-witnesses were closely related to deceased--While appearing before Court they made dishonest improvements just to make case compatible with prosecution version contained in First Information Report--Motive for occurrence was that present appellant wanted to marry with daughter of “B” who was already engaged with deceased and their marriage was going to be solemnized three days before Ramzan-ul-Mubarak--In this context three days prior to occurrence a scuffle also took place between appellant and deceased in which appellant extended threats of dire consequences to deceased in case he did not desist from marrying with “N”--Neither during investigation nor before Court “N” or her father was produced to support prosecution case--So, in absence of their statements who were most relevant witnesses of motive, it could not be said that prosecution had succeeded to prove motive part of occurrence beyond reasonable doubt--In this backdrop, stance taken by defence during trial seems to be more plausible--Overall analysis of prosecution evidence produced leads to conclusion that there are a number of circumstances that create doubt as to veracity of testimony of prosecution witnesses whereas a single instance of this nature creating reasonable doubt is sufficient to record acquittal by giving benefit thereof to accused--Appeal was allowed.
[Para 8, 10 & 11] A, B, C, D & E
M/s. Ch. Khalid Mehmood Arain,-I and Syed Badar Raza Gillani, Advocates for Appellant.
Mehr Fakhar Raza Ajmal Malana, Advocate for Complainant.
Ch. Muhammad Iftikhar-ul-Haq, Addl. Prosecutor General for State.
Date of hearing: 26.4.2018.
PLJ 2021 Cr.C. (Note) 33[Lahore High Court, Multan Bench]Present: Qazi Muhammad Amin Ahmed and Ch. Mushtaq Ahmad, JJ.MUHAMMAD FAZIL etc.--AppellantsversusSTATE and another--RespondentsCrl. A. Nos. 215 & 297 of 2014 & M.R. No. 47 of 2014,heard on 26.4.2018.
Judgment
Ch. Mushtaq Ahmad, J.--Appellant Muhammad Fazil along with 10 others was tried by learned Additional Sessions Judge, I Mian Channu in case FIR No. 289 dated 7.7.2011 registered under Sections 302, 109, 148, 149, PPC at Police Station Saddar Mian Channu, District Khanewal. Murder Reference No. 47 of 2014 for confirmation of death sentence awarded to convict Muhammad Fazil is also before the Court. Complainant Allah Ditta also preferred Criminal Appeal No. 297 of 2014 against acquittal of Respondents No. 2 to 11. We propose to dispose of all these matters through this single judgment.
2. On conclusion of trial appellant was convicted under Section 302(b), PPC and sentenced to Death. He was also held liable to pay
Rs. 5,00,000/- as compensation recoverable as arrears of land revenue to the legal heirs of deceased Muhammad Fazil in terms of Section 544-A, Cr.P.C. vide judgment dated 30.4.2014 passed by learned Additional Sessions Judge, Mian Channu. The remaining accused, namely, Muhammad Sharif, Manzoor, Muhammad Ramzan alias Farooq, Muhammad Yar, Muhammad Ramzan S/o Fareed, Mazhar, Feroze, Muhammad Adil, Sajjad alias Sajid and Sarfraz were acquitted.
3. FIR (Exh.PC) was lodged on written application (ExhPD) of Allah Ditta (PW-7) mentioning therein that on 7.7.2011 at 5.30 p.m. he along with his brother Hafiz Umer Draz (deceased), Muhammad Zaman and Fateh Sher proceeded to Chak No. 127/15-L to purchase Buffaloes; that as soon as they reached near Square No. 121, Killa No. 22 owned by Fida, accused Fazil, Sharif, Fareed, Farooq all armed with Rifles, Manzoor and Muhammad Yar both armed with Pistols came out from bushes around water course; on seeing Umer Draz, accused Farooq raised Lalkara that they would teach him a lesson for giving beating to Adil; that within the sight of PWs Fazil (appellant) made a fire shot with Rifle hitting on right side of chest of Umer Draz, fire shot made by Manzoor with .30 bore pistol hit Umer Draz on his neck, Ramzan made fire shot with Rifle which hit Umer Draz on his chin whereas fire shot made by Muhammad/with .30 bore pistol hit Umer Draz on right side of his wrist, likewise fire shot made by accused Farooq passed over the head of Umer Draz; that on receiving fire shots Umer Draz fell on the ground and succumbed to the injuries whereas accused Farooq and Sharif kept on making aerial firing. According to complainant aforesaid incident took place on the instigation of co-accused Adil, Sajid, Sarfraz, Feroze and Mazhar whose Conversation was neard by PWs Muhammad Nawaz and Ahmed on the fateful day at 8.00 a.m. prior to the occurrence.
Motive behind the occurrence was that accused Fazil wanted to marry with Nadia Mai Daughter of Bashir with whom complainant’s brother Umer Draz, two month prior to the occurrence, had already been engaged and their marriage was to be solemnized three days prior to Ramzan-ul-Mubarak. In this regard a few days prior to the occurrence a scuffle took place between Fazil and Umer Draz when Fazil extended threats of dire consequences to Umer Draz in case he married with Nadia. Even at early hours of the day of occurrence at 7.00 a.m. some hot words were exchanged between Umer Draz and Adil, as a result of which, Umer Draz gave beating to Adil who was subsequently admitted in the hospital. So, in order to take revenge all accused by making an unlawful assembly duly armed with fire-arm weapons assaulted on complainant party and thus, caused death of complainant’s brother Umer Draz.
4. To prove the charge against accused prosecution got examined eleven witnesses. After closing prosecution case on 12.3.2014, statements of accused including present appellant Fazil under Section 342, Cr.P.C. were recorded on 16.1.2014 wherein they denied the charge. In answer to a question why this case against him and why the PWs deposed against him, appellant replied as under:
“Complainant and the PWs are inter se close relatives. Both the PWs named Fateh Shair and Ahmad Yar, are brother-in-law (Behnoi) of the complainant. No independent witness appears either before the I. O. or before the Court to support the version of the complainant. The deceased Umer Draz was killed during dacoity.The I.O. Muhammad Iqbal, S.I. while appearing as PW-11 admitted in his deposition before the Court that on search of the dead body nothing was recovered from him at all which shows that dacoits had killed the deceased after looting him. Neither the complainant nor anyone else was present on the venue nor any body saw the happening of this occurrence. When actual culprits were not traced, the complaint and the PWs after consultation, involved us in this case due to suspicion on account of altercation which took place between my father Aadil and Umer Draz, deceased in the early morning. The complainant and the PWs deposed falsely against us. I am innocent.”
On conclusion of trial appellant was convicted and sentenced as mentioned in the opening paragraph of this judgment.
5. Learned counsel for the appellant argued that judgment passed by the trial Court was against law and facts of the case; that on the same evidence co- accused having pivotal role were acquitted by disbelieving the ocular account; that it was an unwitnessed occurrence as the prosecution witnesses could not prove their presence at the spot at the relevant time beyond reasonable doubt; that post-mortem of deceased was conducted after considerable delay which indicated that police consumed time to cook up a false story; that there were material contradictions between the statements of both the eye-witnesses qua ocular account of the occurrence; that the witnesses made dishonest improvement while appearing before the trial Court which created reasonable doubt in the veracity of prosecution version and that the learned trial Court has not correctly appreciated the evidence produced.
6. Conversely, learned Deputy Prosecutor General assisted by learned counsel for the complainant has opposed the contentions and argued that ocular account of the prosecution was consistent regarding time, place and mode of occurrence; that there was no conflict between medical evidence and ocular account coupled with positive report of FSL and that learned trial Court wrongly acquitted co-accused who were also liable to be convicted.
7. Arguments heard. Record perused.
8. It is not denied that out of eleven accused, 10 were acquitted by the trial Court on the same evidence. As per contents of First Information Report (Exh.PC) role attributed to present appellant was that he made fire shot with Rifle hitting on right side of chest of Umer Draz, (deceased). Ocular account was furnished by PW-7 Allah Ditta (complainant) and PW-8 Fateh Sher. While appearing before the Court both the witnesses deviated from their earlier statements recorded u/S. 161, Cr.P.C. qua mode, venue and kind of weapon used by accused during occurrence. It is an admitted fact that this case was investigated twice by two different agencies. Right from the first day of incident (i.e.7.7.2011) till conclusion of second investigation, prosecution case was that present appellant made fire shot with Rifle on right side of chest of Umer Draz, deceased. Muhammad Iqbal, S.I. who was the first Investigating Officer of this case while appearing before the Court as PW-11 in cross examination stated that during investigation none of the PWs including complainant got recorded any supplementary statement for correction of record regarding accused Fazil (appellant) being armed with Pistol instead of Rifle. He further stated that except two empties of .30 bore Pistol no empty of any other kind of weapon was collected from the spot. In size and shape of these two weapons Pistol and Rifle there is a lot of difference which cannot be ignored. Both these witnesses improved their version before the Court qua kind of weapon used by the appellant. It is an admitted fact that fire-arm injuries assigned to co-accused Manzoor and Ramzan (since acquitted) on neck and chin were not found on the person of deceased by PW-10 Dr. Muhammad Akbar who provided medical evidence. Moreover, if size and locale of wounds as mentioned in PMR are taken into consideration it cannot be said with certainty that those were caused with Rifle. So, medical evidence is irreconcilable with ocular account. Admittedly eye-witnesses were closely related to the deceased. While appearing before the Court they made dishonest improvements just to make the case compatible with prosecution version contained in the First Information Report.
9. Another important fact which belied presence of eye-witnesses at the spot was delayed post-mortem examination of dead body. As per opinion of doctor (PW-10) duration between injuries and death was instantaneous whereas death and post-mortem was within about 10 to 11 hours. It appears that nobody knew about actual culprits and complainant party consumed time and after consultation implicated the accused by throwing wide net in respect of an witnessed occurrence.
10. Motive for the occurrence was that present appellant wanted to marry with Mst. Nadia daughter of Bashir who was already engaged with Umer Draz, deceased and their marriage was going to be solemnized three days before Ramzan-ul-Mubarak. In this context three days prior to the occurrence a scuffle also took place between appellant and deceased in which appellant extended threats of dire consequences to the deceased in case he did not desist from marrying with Mst. Nadia. Neither during investigation nor before Court Mst. Nadia or her father Bashir was produced to support prosecution case. So, in absence of their statements who were the most relevant witnesses of motive, it could not be said that prosecution had succeeded to prove motive part of the occurrence beyond reasonable doubt.
11. In this backdrop, the stance taken by the defence during trial seems to be more plausible. The overall analysis of prosecution evidence produced leads us to the conclusion that there are a number of circumstances that create doubt as to the veracity of testimony of prosecution witnesses whereas a single instance of this nature creating reasonable doubt is sufficient to record acquittal by giving benefit thereof to the accused. Reliance may be placed upon “Ghulam Qadir vs. The State” (2008 SCMR 1221).
12. For the reasons recorded above, this criminal appeal is allowed. The conviction and sentence of appellant Muhammad Fazil vide impugned judgment dated 30.4.2014 handed down by learned Additional Sessions Judge, Mian Channu is set aside. He is acquitted of the charge. Appellant shall be released from jail forthwith, if not required in any other.
13. As a sequel to the above, Murder Reference No. 47 of 2014 for confirmation of death sentence awarded to convict Muhammad Fazil is answered in the Negative.
14. Criminal Appeal No. 297 of 2014 filed by Allah Ditta, complainant against acquittal of Respondents No. 2 to 11 in view of findings recorded above is dismissed.
(A.A.K.) Appeal allowed
0 Comments