PLJ 2021 Cr.C. (Lahore) 569 (DB)
Present: Sadaqat Ali Khan and Shehram Sarwar Ch., JJ.
EHSAN SHAH--Appellant
versus
STATE--Respondent
Crl. A. No. 732 & M.R. No. 253 2016, heard on 1.2.2021.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b), 324, 149 & 149--Conviction and sentence--Challenge to--Qatl-e-amd--Motive--Medical Officer did not observe any fire-arm injury on his belly attributed to appellant rather observed two entry wounds on back of left chest of injured PW4, who in order to bring case in line with medical evidence while making dishonest improvements before trial Court stated that appellant made firing on his back, his fire hit on his spinal cord, who was confronted with his earlier statement where it was not so recorded--Relevant portion is hereby reproduced--Held: Conflicts between ocular and medical evidence is not ignorable rather creates doubt in prosecution story--Motive of occurrence is that Sohaib co-accused (since P.O) Slapped nephew of Mubashar Hussain complainant PW3, who (shoaib Ashraf) did not appear in support of motive story which is not believable--Recovery of 30-bore pistol on pointing out of appellant in absence of positive report of PFSA regarding matching of crime empties with weapon of offence is inconsequential in present case--Held: 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 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. [Pp. 572 & 574] A, B, C, D & E
2008 SCMR 6.
M/s. Munir Ahmad Bhatti and Muhammad Zubair Khalid Cheema, Advocates for Appellant.
Rana Manzoor Ahmad, Advocate for Complainant.
Mr. Munir DPG. Ahmad Sial for State.
Date of hearing: 1.2.2021.
Judgment
Sadaqat Ali Khan, J.--Appellant Ehsan Shah) along with co-accused Sher Khan (since dead) and Mst. Munaza Bibi (since acquitted) has been tried by learned trial Court in case FIR No. 505 Dated 02.07.2011 offences under Sections 302/324/337-A(i)/148/149, PPC P.S. Cantt. Gujranwala and was convicted and sentenced vide judgment dated 30.03.2016 as under:
Ehsan Shah (Appellant)
U/S. 302(b)/149, P.P.C.
sentenced to DEATH on two counts for the murders of Faiz Ahmad and Muhammad Mansha (deceased) along with compensation Rs. 500, 000/- each under Section 544-A, Cr.P.C. to be paid by him to the legal heirs of both the deceased and in default thereof to further undergo 6-months S.I.
U/S. 324/149, P.P.C.
sentenced to imprisonment for 5-years R.I. for murderous assault on Hafiz Awais along with compensation Rs. 50, 000/- to be paid by him to injured Hafiz Awais and in default thereof to further undergo 3-months S.I.
u/S. 148, PPC
Sentenced to imprisonment for 2-years R.I Sentences of the appellant were ordered to be run concurrently with benefit of Section 382-B, Cr.P.C.
Appellant has filed this appeal against his convictions and learned trial Court has sent Murder Reference for confirmation of his death sentence or otherwise which are being decided through this single judgment.
2. The facts of the case have been stated by Mubashar Hussain complainant PW3, in his statement before the learned trial Court, which is hereby reproduced for narration of the facts:
“States that about three years and 10 months ago the occurrence took place at 06:30 pm. I along with Faiz Ahmad, Muhammad Mansha (since dead), Hafiz Awais and Muhammad Imran was present at my Dera. It was on 02.07.2011. At 04:00 pm my nephew Shoaib Ashraf went out to purchase some article from Ghulshan Colony. At Ghulshan Colony Sohaib accused (since P.O.) slapped my nephew. After return of my nephew home from Ghulshan colony, he informed me that he was slapped by Sohaib accused. I alongwith Muhammad Mansha , Faiz Ahmad, Muhammad Imran and Hafiz Awais proceeded to the house of Sher Khan to make protest against the slapping of my nephew by Sohaib accused. When we reached near the house of Ali Raza Shah, Sher Khan also met us. We lodged complaint to Sher Khan who levelled serious allegation against my nephew. Hot words were exchanged between us. Then and there Sher Khan called his sons from his house which was 80/100 feet away from the place. Munazza Bibi armed with danda, Mohaib armed with pistol, Sohaib armed with gun, Nabeel armed with pistol and Ahsan Shah armed with pistol reached the place of occurrence. Mohaib, Sohaib, Nabeel, Ahsan Shah made straight firing on us. Mohaib fired at Faiz Ahmad hitting fire on the chest and belly of Faiz Ahmad. Nabeel and Sohail fired at Muhammad Mansha hitting on his hands and arms and chest. Ahsan Shah fired at Hafiz Awais. Munazza Bibi hit with her Danda on the head of Muhammad Imran. We implored the accused party to spare them. Sher Khan was also injured by unknown person. Volunteered that he was injured by the firing of the accused. I went to the police station. I got written an application Ex.PW from my friend Ghulam Mustafa for registration of FIR which bears my signatures. Muhammad Mansha and Faiz Ahmad fell down on the ground after sustaining injuries. Hafiz Awais also fell down on the ground. We put the injured in a Van 1122 and on their waying to the hospital Mansha and Faiz succumbed to their injures. Hafiz Awais injured was referred by the DHQ Gujranwala to Mayo Hospital Lahore.”
3. Arguments heard. Record perused.
4. Faiz Ahmad and Muhammad Mansha were done to death whereas Hafiz Awais (Hafiz Awais Ahmad) injured PW4 and Imran (not PW) sustained injuries during the occurrence took place on the road on 02.07.2011 at 6.30 pm, regarding which FIR Exta.PA was lodged on the same evening i.e. 02.07.2011 at 7.45 p.m. on the written application Exh.PL moved by Mubashar Hussain complainant PW3. Ehsan Shah appellant has not been attributed any injury on the persons of Faiz Ahmad and Muhammad Mansha (deceased), the only allegation against him is that he made two fire shots which hit on the belly of Hafiz Awais (Hafiz Awais Ahmad) injured PW4 well mentioned in the FIR Exh.PA, relevant portion of which is hereby reproduced:
احسان شاہ نے دستی پسٹل سے یکے بعد دیگرے 2 فائر اویس پر کیے جو اُسے پیٹ پر لگے۔
Hafiz Awais (Hafiz Awais Ahmad) injured PW4 also stated in his statement Exh.DA got recorded by him before Muhammad Azam S.I. I.O. of the case PW13 that Ehsan Shah appellant made two fire shots which hit him on his belly. Relevant portion of the statement Exh.DA is hereby reproduced:-
احسان شاہ نے اپنے پسٹل سے یکے بعد دیگرے دو فائر مجھ پر کئے جو مجھے سامنے پیٹ پر لگے۔
Medical Officer did not observe any fire-arm injury on his belly attributed to appellant rather observed two entry wounds on back of left chest of Hafiz Awais (Hafiz Awais Ahmad) injured PW4, who in order to bring the case in line with medical evidence while making dishonest improvements before the trial Court stated that Ahsan Shah appellant made firing on his back, his fire hit on his spinal cord, who was confronted with his earlier statement Exh.DA where it was not so recorded. The relevant portion is hereby reproduced.
“Ahsan Shah accused had fired on my back. (Confronted with Ex.DA where it is mentioned that the fired which hit in my belly.”
This witness (Hafiz Awais (Hafiz Awais Ahmad) injured PW4) also made the following dishonest improvements:
I have recorded in my statement under Section 161, Cr.P.C. that Shoaib went to Tandoor at Ghulshan Colony for purchasing Naans. Confronted with Ex. DA where it is not so recorded). I also recorded in my statement under Section 161, Cr.P.C. that soon after return from Tandoor Shoaib told to Mansha, Faiz and Mubashar Hussain complainant of the case as to slapping at the hands of accused Sohaib. (Confronted with Ex.DA where the names of the afore-said persons including complainant are not mentioned). In the month of July “Azan” of “Maghrib” is made at about 07:05 pm. I have got recorded in my statement u/S. 161, Cr.P.C. that I went to the mosque to say my Maghrib prayer. (Confronted with Ex. DA where it is not so recorded). I have also got recorded in my statement under Section 161, Cr.P.C. that Sher Khan accused called his sons from his house. (Confronted with Ex. DA where the calling from his house is not mentioned). I have also got recorded in my statement under Section 161, Cr.P.C. that I went for rescue of Mansha deceased. (Confronted with Ex.DA where it is not so recorded). I have also got recorded in my statement under Section 161, Cr.P.C. that Munazza and Nabeel co-accused gave Danda blows to him. (confronted with Ex.DA where it is not so recorded). I have also got recorded in my statement under Section 161, Cr.P.C. that I remained under treatment for two months. (Confronted with Ex. DA where it is not so recorded. I have also got recorded in my statement under Section 161, Cr.P.C. that from Mayo Hospital Lahore I had been shifted to Gurki Hospital where doctor told me that my spinal cord has been damaged (confronted with Ex. DA where it is not so recorded).”
Mubashar Hussain complainant PW3 also to bring the case in line with medical evidence while making dishonest improvements stated in his statement before the trial Court that Ahsan Shah appellant fired at Hafiz Awais (Hafiz Awais Ahmad) injured PW4 but did not state whether his firing hit on belly of Hafiz Awais (Hafiz Awais Ahmad) injured PW4 as mentioned in the FIR Exh.PA or on his back. This witness (Mubashar Hussain complainant PW3) also made following dishonest improvements which is hereby reproduced:-
“I have mentioned in the application Ex.PW that the accused Mohaib, Sohaib, Khalil and Ahsan made straight firing on us. (Confronted with Ex.PW where it is not so recorded). I have mentioned in Ex.PW that Mohaib made fire at chest of Mansha and Faiz. (confronted with Ex.PW where it is not so recorded)”
The above dishonest improvements of both the PWs shatter their credibility. Reliance is placed on case titled “Akhtar Ali and others v. The State” (2008 SCMR 06). Above discussed conflicts between ocular and medical evidence is not ignorable rather creates doubt in the prosecution story.
5. Hafiz Awais (Hafiz Awais Ahmad) injured PW4 stated in his statement before the trial Court that accused Mst. Munaza Bibi (since acquitted) and Nabeel (since P.O.) gave beating on his legs. Mubashar Hussain complainant PW3 also stated in his statement before the trial Court that Mst. Munaza Bibi gave Danda blow on the head of Muhammad Imran (not pw) who (Mst. Munaza Bibi accused) has been acquitted by the learned trial Court through the impugned judgment by disbelieving the evidence of both the PWs (complainant/State has not filed any appeal against her acquittal). Accused Sher Khan (since dead) also sustained injuries during the occurrence.
6. Motive of the occurrence is that Sohaib co-accused (since P.O) Slapped the nephew (Shoaib Ashraf) of Mubashar Hussain complainant PW3, who (shoaib Ashraf) did not appear in support of motive story which is not believable.
7. Recovery of .30-bore pistol on pointing out of the appellant Ehsan Shah in absence of positive report of PFSA Exh.PMM regarding matching of crime empties with weapon of offence is inconsequential in the present case.
8. In view of the above discussion, we entertain serious doubt in our minds regarding participation of appellant 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 accused, then he would be entitled to its benefit not as a matter of grace or concession, but as of right.
9. For the foregoing reasons, this appeal filed by the appellant is allowed, conviction and sentence of appellant (Ehsan shah) awarded by the learned Trial Court through impugned judgment are hereby set-aside and he is acquitted of the charges. He is directed to be released forthwith, if not required in any other case. Murder Reference is
answered in NEGATIVE and death sentence of appellant (Ahsan (Etsan shah) on all counts is NOT CONFIRMED.
10. Before parting with this judgment, it is observed that co-accused (sohaib and Nabeel) are still P.Os. their case shall be decided by the learned trial Court on its own merits without being influenced from this judgment on their arrest.
(A.A.K.) Appeal allowed
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