PLJ 2021 Cr.C. 1205
----S. 302(b)--Conviction and sentence--Challenge to--Qatl-i-amd--Medical evidence--Benefit of doubt--Motive--Altercation took place--“A” was murdered and “M” injured PW-3 sustained injuries during occurrence while sitting in a car near house of appellant on 27.07.2014 at regarding which FIR was registered on written application moved by complainant PW-2 on 27.07.2014 at 7.30 a.m. with delay of more than two hours--Distance between place of occurrence and police station is of 14-killometers well mentioned in column No. 4 of FIR--Postmortem report shows that postmortem examination was conducted on dead body of deceased on 27.07.2014 at 2.00 p.m. with delay of about more than 8-hours--Medico legal report pertaining to injured PW-3 shows that he arrived in hospital through police on 27.07.2014 at 5.35 a.m. and his condition was satisfactory but he did not make any statement before police for lodging FIR--Complainant PW-2 stated regarding motive of occurrence in his Statement (examination-in-chief) that on 26.07.2014 some altercation took place between his son deceased and appellant on dispute of goats--He (deceased) on same day at 04/05 p.m. was tortured by appellant, near Bethak of appellant and on noise of deceased, Asif not PW and Tariq PW (since given up) reached there and they quarreled each other above said Asif not PW and Tariq PW (since given up) are real sons of complainant PW-2 but did not appear before trial Court to establish above said motive--Prosecution has failed to prove motive--Nothing was recovered from appellant during interrogation rather he was present at his house at time of occurrence as stated by S.I. CW-7, I.O of this case in his cross-examination--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--Appeal was allowed. [Pp. 1212, 1215 & 1216] A, B & C
2009 SCMR 230.
M/s. Munir Husain Bhatti, Ch. Zafar Iqbal and Kamran Javed Malik, Advocates for Appellants.
Mr. Abdul Khaliq Safrani, Advocate for Complainant.
Mr. Tariq Javed DPP for State.
Date of hearing: 25.10.2018.
PLJ 2021 Cr.C. 1205
[Lahore High Court, Lahore]
Present: Sadaqat Ali Khan and Shehram Sarwar Ch.
MUHAMMAD RIAZ--Appellant
versus
STATE--Respondent
Crl. A. No. 55082-J & M.R No. 280 of 2017, heard on 25.10.2018.
Judgment
Sadaqat Ali Khan, J.--This single judgment shall dispose of Criminal Appeal No. 55082-J of 2017 filed by Muhammad Riaz and Nazim Hussain appellants (against their convictions) and M.R No. 280 of 2017 sent by trial Court for confirmation of death sentence of Muhammad Riaz or otherwise, as both the above stated matters have arisen out of the same judgment dated 30.03.2017 passed by learned Additional Sessions Judge, Gujranwala according to which appellants were convicted and sentenced as under:-
Muhammad Riaz appellant
U/S. 302(b), PPC | He was sentenced to DEATH along with compensation Rs. 3,00,000/- payable to legal heirs of the deceased under Section 544-A, Cr.P.C. and in default thereof to further undergo six months simple Imprisonment. |
U/S. 324/34, PPC | He was sentenced to ten years R.I along with fine Rs. 30,000/- and in default thereof to further undergo 03 months S.I. |
U/S. 427, PPC | He was sentenced to two years R.I along with fine Rs. 10,000/- and in default thereof to further undergo 01 month S.I. |
Nazim Hussain appellant
U/S. 302(b)/34, PPC | He was sentenced to imprisonment for life along with compensation Rs. 2,00,000/- payable to legal heirs of the deceased under Section 544-A, Cr.P.C. and in default thereof to further undergo six months simple Imprisonment. |
U/S. 324, PPC | He was sentenced to ten years R.I along with fine Rs. 30,000/- and in default thereof to further undergo 03 months S.I. |
u/S. 427, PPC | He was sentenced to two years R.I along with fine Rs. 10,000/- and in default thereof to further undergo 01 month S.I. |
Benefit of Section 382-B, Cr.P.C. was also extended to both the appellants by the trial Court.
Whereas their co-accused namely Muhammad Faryad, Muhammad Irshad, Abdul Razzaq, Muhammad Hussain and Abdul Shakoor were acquitted in private complaint arising out of case FIR No. 366 dated 27.7.2014 police station, Sadar Kamoki District Gujranwala.
2. Facts of the case have been stated by Muhammad Siddique complainant (PW2) in his statement before the learned trial Court, which is hereby reproduced for narration of the facts:
“Muhammad Hussain accused has land adjacent to my agricultural land situated at Moza Lombray. On 26.07.14 my 03 goats entered into the
On next day at about 05:00 am Tariq, Imran, Arslan and myself proceeded to purchase fertilizer. When we reached near Bethak of Muhammad Riaz, he armed with .44 bore, Tajammal armed with .44 bore, Nazim armed with .44 bore, Bashir, Faryad armed with pump action, Allaudin alias Malah ud Din armed with gun .12 bore, Irshad pistol .30 bore, Abdul Razzaq armed with Kalashnikov, Muhammad Hussain empty hands and Abdul Shakoor armed with gun .12 bore and 3/4 persons had already way laid there. Muhammad Hussain raised lalkara, upon which Riaz accused made fired which after crossing door of car hit Arslan on his hip region. Tajammal made second fire which hit Arslan on his right foot Nazim made fire which after crossing door of car hit Imran on his left foot. Other accused persons made firing with their respective weapons at the car; which hit at its different parts of vehicle including radiator and tyre,
3. After filing of private complaint, learned trial Court recorded the cursory evidence produced by the complainant and thereafter summoned the appellants to face the trial.
4. Learned trial Court after observing legal formalities provided under the Criminal Procedure Code framed the charge against the appellants and their co-accused mentioned above (since acquitted) to which they pleaded not guilty and prosecution evidence was summoned.
5. Prosecution produced seventeen witnesses (PW-1 to PW-9) and (CW-1 to CW-8).
6. Medical evidence has been furnished by Dr. Muhammad Ijaz PW-4, Dr. Abdul Shakoor PW-8 and Dr. Muhammad Shahbaz PW-9 whose details are as under:
“Dr. Muhammad Iiaz MO PW-4 stated that on 27.7.2014 he conducted medico legal examination of injured Imran and observed following injuries on his person:-
Injury No. 1.
A fire-arm lacerated wound 0.50 x 0.50 cm into muscle deep on left side of dorsum of foot below left malleolus.
Patient was referred to DHQ Hospital Gujranwala for further treatment. No other injury was found on the body. Later on X-ray report and treatment notes received from
Dr. Abdul Shakoor Radiologist PW-8 stat that on 27.7.2014, Dr. Sarwar Radiologist (since retired) did X-say of left foot C.T scan No. 6394 dated 29.8.14 of Muhammad Imran s/o Muhammad Siddique. I have been working as a colleague with Dr., Sarwar and identify his handwriting. After X- rays, Dr. Sarwar endorsed the same facts in reporting register of X-rays, which is in his handwriting and I identify the same.
The following was report of X-rays and C.T scan of left foot.
There was fracture of calcaneous bone with multiple metallic foreign bodies in the bone as well as in the soft tissue. The report sent to the CMO THQ Hospital Komoke,
Dr. Muhammad Shahbaz WMO PW-9 stated that he conducted postmortem examination on the dead body of Arslan deceased and observed as under:
Injuries:
01. A lacerated wound 0.5 cm x 0.5 cm going deep with blackened burnt margin, circular in shape on the upper part of left ilic region a wound of inlet.
02. A wound of outlet 02.cm x 01.cm on the left side of anal canal.
03. A crushed firearm wound with blackened burnt margin on the inner side of right ankle joint.
Opinion.
All injuries are antimortem caused by fire-arm weapon. Death in my opinion has occurred as a result of excessive hemorrhage leading to shock and death. Probable time between injury and death is immediate. Probable time between death and postmortem is about 09 hours and 30 minutes.”
7. On the other hand, statements of Muhammad Riaz and Nazim Hussain appellants and their co-accused mentioned above (since acquitted) were recorded under Section 342, Cr.P.C., who refuted the allegations so leveled against them. Appellants did not opt to appear as witness under Section 340(2), Cr.P.C., however, they produced Muhammad Maalik as DW-1 in oral defence evidence and also produced documents (Ex.DA to Ex.DK) and (Mark-A to Mark-C) in documentary defence evidence and in reply to question “why this case against you and why the PWs deposed against you?” Muhammad Riaz appellant replied as under:
“I am innocent and have been falsely implicated in this case only because of relationship with Muhammad Hussain and Nazim accused. I did not participate in the occurrence. I was un-able to walk as my right foot was severely injured due to the accident of a tractor. I remain admitted in Irshad Hospital Sadhoke and Chatha Hospital Gujranwala for treatment. I was sleeping in my house at the time of occurrence. The prosecution story is also highly improbable, not believable and not plausible one. The way or the mode through which I have been assigned the role of firing is also not believable. ‘The complainant and P.Ws are related inter-se and are also inconsistent with each other. The complainant has also mentioned the names of one Rafaqat and Anwar in his private complaint. Said Rafaqat and Anwar were the close relatives of Alla-ud-Din accused (since P.O). ‘The complainant has a criminal history. He is expert in fabricating false stories and involving innocent persons in different cases. Infact, complainant made firing at my Tharra, where Rafaqat, Anwar and some un-known persons were standing, who also made aerial firing. A fire shot made by complainant accidentally hit Arsalan, who died subsequently. The story of taking him in injured condition in a car and then changing the bursted tyre is fake”.
Likewise, in reply to question “why this case against you and why the PWs deposed against you?” Nazim Hussain appellant replied as under:
“I am innocent and have been falsely implicated in this case. The fact of them matter is that on the proceedings, evening of the fateful day that is at 07:00 p.m on 26.07.14, when I was going to my house passing through the street while passing near the house of complainant party, Arsalan deceased, Imran alleged injured and Tariq P.W gave me severe beating and tortured as I forbade not to enter their goats in our field. After receipt of beating from the said persons, I got him medically examined from
8. After conclusion of the trial, learned trial Court while acquitting co-accused mentioned above convicted the appellants with above said sentences. Hence this appeal.
9. Learned counsel for the appellants have contended that:
(i) Impugned judgment of the trial Court is against law and facts on the file and is liable to be set-aside.
(ii) prosecution has failed to prove its case against the appellants/convicts as there are many major discrepancies in the statements of the PWs and the learned trial Court has convicted the appellants on the basis of surmises and conjectures;
(iii) it is contended that the impugned judgment of the trial Court is not maintainable in the eyes of law;
(iv) lastly submitted that instant appeal may be accepted and impugned judgment of the trial Court may kindly be set aside and appellants/convicts may be acquitted.
10. On the other hand, learned D.P.P assisted by learned counsel for the complainant has vehemently opposed the appeal and submitted that:
(i) prosecution has proved its case beyond any shadow of doubt against the appellants/convicts with solid evidence and prayed for the dismissal of the appeal.
11. We have heard the learned counsel for the parties as well as learned D.P.P., on perusing the record with their assistance observed as under:-
i. The detail of prosecution case has already been given in para-2 of this judgment; therefore, there is no heed to repeat the same to avoid the duplication and repetition.
iii. It is revealed from reading of MLR, Exh.PG that different pens and carbon papers were used which create doubt regarding authenticity of this document. Further it has been mentioned in the MLR Exh.PG that Fayaz Ahmad constable PW-6 had got medically examined Muhammad Imran injured PW-3 but he (Fayaz Ahmad injured PW-6) while appearing before the trial Court did not utter even a single word in this respect in his Statement (examination-in-chief).
iv. Muhammad Siddique complainant PW-2 and Muhammad Imran injured PW-3 stated in their Statements (examination-in-chief) that at the time of occurrence they along with Arslan deceased and Tariq PW (since given up) were present in the car. It is not mentioned in the written application Exh.PB moved by Muhammad Siddique complainant PW-2 for registration of FIR that who was driving the car. It is mentioned in the FIR that all the accused (Tajamal Hussain, Alla-uddin (since p.os.) Nazim Hussain, Muhammad Riaz (appellants), Muhammad Faryad, Muhammad Irshad, Abdul Razzaq and Abdul Shakoor (since acquitted)) made firing upon the car. It is also mentioned in Para 3 of private complaint Exh.PC that all the accused mentioned above made firing upon the car wherein they (Arslan (deceased) Muhammad Imran injured PW-3, Tariq PW (since given up) and Muhammad Siddique complainant PW-2) Were sitting. Admittedly Tariq PW (since given up) and Muhammad Siddique complainant PW-2 did not receive any injury during the occurrence which falsifies their story. Muhammad Siddique complainant PW-2 did not state in his Statement (examination-in-chief) that who was driving the car at the time of occurrence. However, he (Muhammad Siddique complainant PW-2) stated in his cross-examination that Muhammad Imran (Injured PW-3) was driving the car. Muhammad Imran injured PW-3 has Stated in his Statement (examination-in-chief) that he was driving the car at the time of occurrence but contrary to this complainant Muhammad Siddique PW-2 stated in Para 4 of his private complaint Exh.PC as under:
"یہ کہ فائر لگنے کی وجہ سے گاڑی بند ہو گئی لیکن میرے بیٹے طارق نے گاڑی دوڑا دی۔"
v. Muhammad Siddique complainant PW-2 and Muhammad Imran injured PW-3 stated in their Statements (examination-in-chief) that Muhammad Riaz appellant who was statedly armed with rifle .44-bore made fire shot which after crossing door of car hit Arslan deceased on his hip region, Tajamal accused (since p.o) who was statedly armed with .44-bore rifle made fire shot which hit Arslan on his right foot. Nazim Hussain appellant who was statedly armed with .44-bore rifle made fire shot which after crossing door of car hit Muhammad Imran (injured PW-3) on his left foot. However, other accused persons (Muhammad Faryad, Muhammad Irshad, Abdul Razaq, Abdul Shakoor (since acquitted), Alla-Uddin and Tajamal Hussain (since p.os) also made firing with their respective weapons at the car, which hit at its different parts including radiator and tyre. Contrary to this Dr. Muhammad Ijaz PW-4 who medically examined Muhammad Imran injured PW-3 observed a fire-arm lacerated wound 0.50 x 0.50 cm into muscle deep on left side of dorsum of foot below left malleolus. He (Dr. Muhammad Ijaz PW-4) further Stated in his Statement (examination-in-chief) that according to report of radiologist, fracture of calcaneous bone is seen along with multiple radioopque foreign bodies of metallic density in the bone and soft tissue found.
vi. Dr.Abdul Shakoor PW-8 also stated in his statement (examination-in-chief) that there was fracture of calcaneous bone with multiple metallic foreign bodies in the bone as well as in the soft tissue of Muhammad Imran injured PW-3. He (Dr. Abdul Shakoor PW-8) admitted in his cross-examination that over the report of Serial No. 5208/5209, the report is bearing date as 15.08.14. Further Dr. Muhammad Shahbaz PW-9 while conducting postmortem examination on the dead body of Arslan observed a lacerated wound 0.5 cm x 0.5 cm going deep with blackened burnt margin, circular in shape on the upper part of left ilic region a wound of inlet, a crushed fire-arm wound with blackened burnt merging on the inner side of right ankle joint. Considering this we are of the view that above said injuries on the persons of Arslan deceased and Muhammad Imran injured PW-3 could not be the result of fire shots which after piercing through door of car hit Arslan deceased and Muhammad Imran injured PW-3 as stated by eye-witnesses (Muhammad Siddique PW-2 and Muhammad Imran injured PW-3) discussed above rather it could not be result of direct firing with close range which is not the case of prosecution. This contradiction between ocular account and medical evidence is not ignorable.
vii. The argument of the learned counsel for the complainant that presence of Muhammad Imran injured PW-3 cannot be doubted at the place of occurrence due to his injury has no substance because merely the injury on his person would not stamp him truthful witness. Reliance is place on case titled “Amin Ali and another v. The State” (2011 SCMR 323).
viii. Muhammad Faryad, Muhammad Irshad, Abdul Razzaq, Abdul Shakoor (since acquitted), accused were also attributed fire shots on the car in which Muhammad Siddique complainant PW-2, deceased Arslan, Muhammad Imran injured PW-3 and Tariq PW (since given up) were sitting at the time of occurrence but they (Muhammad Faryad, Muhammad Irshad, Abdul Razzaq and Abdul Shakoor) have been acquitted by the trial Court through the impugned judgment by disbelieving the evidence of above said witnesses, same evidence cannot be believed against appellants in absence of independent corroborative evidence which is conspicuously missing in the present case. Reliance is placed on case titled “Shahbaz vs. The State” (2016 SCMR 1763)
ix. Learned DPG submits that during investigation I.O has introduced Rafaqat and Muhammad Anwar accused but complainant Muhammad Siddique PW-2 did not make them accused in his private complaint well mentioned in Para 7 of private complaint.
xi. Nothing was recovered from Nazim Hussain appellant during interrogation rather he was present at his house at the time of occurrence as stated by Adnan Shahzad S.I. CW-7, I.O of this case in his cross-examination.
xii. Recovery of Rifle .244-bore C1 on pointing out of Muhammad Riaz appellant is inconsequential in presence of negative report of Punjab Forensic Science Agency, Lahore Exh.PP rather has adverse effect.
“The nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then he would be entitled to its benefit not as a matter of grace of concession, but as a matter of right.”
13. For the foregoing reasons, this appeal is allowed, convictions and sentences of Muhammad Riaz and Nazim Hussain appellants awarded by the trial Court through impugned judgment are hereby set aside, they (Muhammad Riaz and Nazim Hussain appellants) are acquitted of the charges and are directed to be released forthwith if not required in any other case. M.R is answered in NEGATIVE and death sentence of Muhammad Riaz appellant is NOT CONFIRMED.
14. Before parting with this judgment, it is observed that Tajamal and Alla-uddin co-accused of the appellants are still P.Os. Their case shall be decided by the learned trial Court on its own merits without being influenced from this judgment whenever they are arrested.
(A.A.K.) Appeal allowed
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