PLJ 2021 Cr.C. 1062
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conviction and sentence--Challenge to--Qatl-e-amd--Benefit of doubt--Motive--Dispute over water--Post-mortem of dead body was delayed for twelve to twenty-four hours--No plausible explanation--This creates doubt about time of registration of FIR--PW-3 has not deposed time of occurrence in his Court statement--Complainant got prepared an application for registration of criminal case from one “police official”, whose name was not known to him--Non-mentioning of this fact in application/complaint Ex.PB indicates that complainant PW-3 had not stated complete truth and that F.I.R--Came into existence later on, after due deliberations and consultations, en and where complaint Ex.PB was prepared and author of complaint should have to state that complaint was prepared by him under instructions of complainant--It is also not a case of prosecution that complainant PW-3 asked “police official” to prepare a complaint and accordingly complaint was prepared by “police official” which was shown to complainant, read over to him which was signed by complaint and renders whole of prosecution version doubtful--These aspects of case are sufficient to cast doubt about authenticity of private complaint and F.I.R--This creates serious doubt about genuineness of prosecution story--Delay in lodging private complaint often results in embellishment, which is a creature of an afterthought--According to prosecution case as set forth in private complaint F.I.R complaint un-scaled site plan inquest report and un-scaled site plan as well as in evidence, appellant was assigned role of inflicting a fire-arm injury on right side of head and shoulder of deceased but injury attributed to appellant was an exit wound according to Dr. (CW-4), who conducted post-mortem examination on dead body of deceased and post-mortem report of deceased--Post-mortem report of deceased indicates that there was no fire-arm entry wound present at head and shoulder of deceased as observed by doctor--Fact remains that complainant PWs specifically stated that fire shot made by appellant hit at right side of head and shoulder of deceased, whereas during post-mortem examination, no such injury was found--Injury on right side of head and shoulder was an exit wound which had entry on its left which is attributed to appellant PWs--Thus prosecution version is contradicted by medical evidence, which affects core of prosecution’s case, renders testimony of witness liable to be discredited--In process of running away, bullet will hit from back and not from front--As it was case of prosecution on attack they ran away to save their lives--So it was not possible to witness that whose fire hit whom--Prosecution witnesses i.e. complainant and PWs specifically stated that fire shot made by since acquitted hit on front of lower abdomen of deceased, whereas during post-mortem examination, no such injury was found--injury on lower abdomen of deceased was an exit wound, which had entry on its right buttock--It would not be safe to place any implicit reliance on his testimony unless find some corroboration from any other independent evidence--Above said facts have created a reasonable doubt in my mind as to genuineness of testimony of injured witness and real genesis of incident were suppressed--Motive set up by prosecution in FIR, private complaint and brought on record through deposition of complainant PW-1 have been found by me to have remained un-proved--prosecution case in this regard was vague and could hardly inspire confidence--Prosecution could not prove its case against appellant beyond shadow of doubt--Held: It is well settled law that if there is a single circumstance which creates doubt regarding prosecution case, same is sufficient to give benefit of doubt to accused, whereas, in instant case there is conflict between medical and ocular account--Appeal was accepted.
[Pp. 1069, 1070, 1071, 1072 & 1073] A, B, C, D, E & F
2004 SCMR 1185 and 2009 SCMR 230.
Mr. Faisal Shahzad. Advocate for Appellants.
Ms. Ummul Baneen, Deputy Prosecutor General for State.
Ch. Walayat Ali, Advocate for Complainant.
Date of hearing: 6.2.2019.
PLJ 2021 Cr.C. 1062
[Lahore High Court, Lahore]
Present: Miss Aalia Neelum, J.
WAQAS etc.--Appellants
versus
STATE etc.--Respondents
Crl. A. No. 118259, Crl. Rev. No. 116281 & P.S.L.A.
No. 120552 of 2017, heard on 6.2.2019.
Judgment
Waqas son of Rafique, Caste Arayin, resident of Ahya Pur, Tehsil Sharaqpur, District Sheikhupura, the appellant along with his co-accused Shaukat Ali (since acquitted), Arshad (since acquitted), Muhammad Mansha (since acquitted), Moazzam (since proclaimed offender) and Rana Asad Ullah Khan, Sub Inspector (private complaint was dismissed to his extent) was involved in a private complaint (Ex.PA) dated 01.09.2014, registered under Sections 302, 324, 109, 148, 149, PPC read with Section 155-C of Police Order, 2002, at Police Station, Sharaqpur, District Sheikhupura as well as State case F.I.R. No. 199-2011, dated 02.04.2011, offence under Sections 302, 324, 109, 148, 149, P.P.C., registered at Police Station, Sharaqpur, District Sheikhupura and was tried by the learned Additional Sessions Judge, Ferozwala. The learned trial Court seized with the matter in terms of judgment dated 21.11.2017, convicted the appellant under Sections 302 (b), P.P.C., and sentenced him to Imprisonment for life as Tazir. The appellant was directed to pay Rs. 1,00,000/-as compensation to the legal heirs of the deceased and in default thereof, he would suffer simple imprisonment for a six months.
2. Being aggrieved by the judgment of the learned trial Court, the appellant, Waqas has assailed his conviction and sentence by way of filing instant Criminal Appeal No. 118259 of 2017 whereas the petitioner-complainant, Naseem Akhter being dis-satisfied with the judgment dated 21.11.2017, filed a Criminal Revision No. 116281 of 2017 for enhancement of sentence of the appellant and also filed a Petition for Special Leave to Appeal under Section 417 (2) of Cr.P.C., against acquittal of Respondents No. 2 and 3 namely Shaukat (since acquitted) and Moazzam (since proclaimed offender). As all the matters are arising out of one and the same judgment, therefore, these are being disposed of through a single judgment.
3. The prosecution story as contained in the private complaint (Ex.PA), filed by Naseem Akhter (PW-1)-the complainant is that on 02.04.2011, at about 4/5:00 p.m. the complainant (PW-1) along with her husband was present at her house whereas her sons namely Mukhtar Ali alias Guddu (since dead), Mushtaq Ahmad, Muhammad Akram and Muhammad Aslam were bringing fodder to home from the fields for the cattle on the donkey cart and when they reached near the house of one Asghar Ali son of Din Arayin, two unknown accused persons while riding on a motorcycle Honda CG-125 armed with deadly weapons intercepted the complainant’s sons. In the meanwhile, the accused-Shaukat Ali armed with Kalashnikov, the accused-Waqas son of Rafique equipped with Kalashnikov and the accused-Moazzam armed with Kalashnikov, came at the place of occurrence and started firing. Thereafter, upon hearing the sound of firing, the complainant (PW-1) along with her husband, reached at the place of occurrence and saw her sons running away from the accused persons in order to rescue themselves. The accused-Shaukat Ali made a fire shot with his Kalashnikov, which hit Muhammad Akram near his right shoulder and went across his body. Thereafter the accused-Moazzam made a fire shot with his Kalashnikov, which hit Mukhtar Ali (since dead) on his left buttock whereupon he fell down and thereafter the accused-Waqas fired a burst of bullets with his Kalashnikov which hit Mukhatar Ali (since dead) on the right side of his head. Another fire hit on his right shoulder whereafter the accused-Shaukat made a fire shot which hit Mukhtar Ali (since dead) beneath his bell button. Thereafter, the accused persons after committing aerial firing fled away whereas Mukhtar Ali (since dead) succumbed to the injuries at the spot. The occurrence was witnessed by the complainant (PW-1), her husband, Mushtaq Ahmad, Muhammad Aslam Muhammad Akram and other inhabitants of the village.
4. The motive behind the occurrence was dispute over water which took place between the belligerents about six months back before the alleged occurrence. It is alleged that all the accused persons along with two unknown persons committed murder of complainant’s real son and injured the other one on the instigation of Muhammad Mansha and Muhammad Arshad. It was also mentioned in the complaint that two days prior to the alleged occurrence, in the evening the complainant (PW-1) and her husband had themselves heard the accused persons i.e. Shaukat, Waqas and Moazzam who were hatching a conspiracy along with Muhammad Mansha and Muhammad Arshad for committing murder of their sons whereupon the complainant (PW-1) moved an application for registration of case to the S.H.O Police Station, Sharaqpur but the S.H.O instead of taking any action on the application, with malafide intention made her son namely Muhammad Akram as complainant of case FIR. No. 199-2011 and entrusted the investigation to Asad Ullah, SI, who in connivance with the accused persons, neither bring on the record correct stance of the complainant and her husband nor arrested the accused persons and thereby misused the authority vested in him by the law. The complainant (PW-1) further states that life of complainant’s son namely Muhammad Akram was under threat. After declaration of innocence of accused persons by the police after first round of investigation, the complainant (PW-1) resorted to DIG, Investigation for transfer of application but in vain. Hence, instant private complaint.
5. Earlier on the application (Ex.PC) of Muhammad Akram (PW-3), the F.I.R, was chalked out by Muhammad Nadeem Arif-Head Constable (CW-10). Thereafter, the investigation was entrusted to Asad Ullah Khan, S.I (CW-11)-the Investigating Officer, who visited the place of occurrence, prepared inquest report (Ex.PH), injury statement (Ex.PJ), application for post-mortem (Ex.PK) and took into possession bloodstained earth and sealed them in parcels (Ex.PL and Ex.PM) and recorded statements of the prosecution witnesses under Section 161 of Cr.P.C. Thereafter, the Investigating Officer (CW-11) prepared docket for getting MLC of injured-Muhammad Akram (Ex.PQ/2). On 03.04.2011, Basharat Hussainl886/C produced last worn clothes of the deceased, Mukhtar Ali i.e. Shalwar (P-l), Qameez (P-2), Vest (P-3) and Qameez (P-4) of injured-Muhammad Akram before the Investigating Officer (CW-11), who took the same into possession vide recovery memos (Ex.PD and Ex.PN). Thereafter, the Investigating Officer (CW-11) prepared rough site plan of the place of occurrence (Ex.PP). Thereafter, Zulfiqar Ali, Patwari (since dead) visited the place of occurrence and prepared scaled site plan (Ex.PF). During investigation, the accused persons were found innocent by the Investigating Officer (CW-11). Thereafter, the Investigating Officer (CW-11) prepared report under Section 173 of Cr.P.C. and sent the same to competent Court through the concerned Station House Officer. Later on, the complainant (PW-1) being dissatisfied with the investigation, filed a private compiaint (Ex. PA) against all the accused persons during pendency of the State case before the learned Judicial/Illaqa Magistrate, Police Station, Sharaqpur Sharif, District Sheikhupura. The learned Illaqa Magistrate sent the same to the worthy Sessions Judge, Sheikhupura for its entrustment to the Court of competent jurisdiction. The learned trial Court after hearing preliminary arguments, summoned all the accused persons to face the trial. On 27.02.2015, the learned Additional Sessions Judge, Ferozwala formally charge sheeted the appellant along with others to which they pleaded not guilty and claimed trial.
6. The prosecution in order to substantiate its case produced as many as three (03) prosecution witnesses during the course of trial in private complaint. Ocular account in this case consists of the statements of Naseem Akhter (PW-1)-the complainant whereas Muhammad Aslam (PW-2) and Muhammad Akram-injured (PW-3) are eye-witnesses of the alleged occurrence. The remaining prosecution witnesses were summoned as Court witnesses i.e. CW-1 to CW-13.
7. Imran Shahid, Record Keeper, DHQ Hospital, Sheikhupura appeared as CW-7, whose statement was recorded as secondary evidence with respect to Dr. Muhammad Asif Sheikh who medically examined the injured-Muhammad Akram (PW-3) on 03.04.2011, as Dr. Muhammad Asif Sheikh has proceeded to Saudia Arabia. Dr. Zahoor Ahmad conducted post-mortem and found following injuries on the body of the deceased, Mukhtar Ali alias Guddu:
Injuries.
1. Four fire-arm wound of entry-each measuring 0.5x0.5 cm on left side of head, tattooing present on face and ear, making an exact wound 18x6 cm on right side of head. Scalp, skull, meninges, brain tissues and blood vessels were damaged. The skull bone was broken into small fragments and brain matter partly missing.
2. A fire-arm wound of entry 0.5x0.5 cm on back of right upper chest making an exit wound 2x2 cm on front of right upper chest. On dissection skin muscles blood vessels under lying ribs and right lung were damaged. Chest cavity was full of blood.
3. Firearm wound of entry 0.5x0.5 cm on right buttock making an exit wound 1.5x1.5 cm on front of abdomen 6 cm from umbilicus at 7,O clock. On dissection skin muscles under lying bones bladder and intestines were damaged. Abdominal cavity was full of blood.
4. Firearm wound of entry 0.5x0.5 cm on left buttock making an exit wound 4x4 cm on front of lower abdomen left side. On dissection skin muscles under lying bones and intestines were damaged. Stomach was healthy.
After conducting post-mortem examination, the doctor rendered the following opinion:
Opinion.
“Death occurred due to severe hemorrhage, shock and injury to vital organs. All injuries collectively and individually were sufficient to cause death of a human being in a natural course of death.”
Probable duration between injury and death was immediate whereas time between death and post-mortem was 12-24 hours.
Ex.PE is correct carbon copy of post-mortem report whereas Ex.PE/1 is pictorial diagram.
8. On 23.08.2016, the complainant gave up Muhammad Mansha PW being won over by the defence side whereas Muhammad Alam was given up by the complainant on 20.09.2016 being un-necessary and closed her evidence on 15.09.2017. The learned Deputy District Public Prosecutor tendered the reports of Chemical Examiner and Serologist as Ex.PQ and Ex.PR.
The statements of rest of the prosecution witnesses are formal in nature.
9. After closure of prosecution evidence, the appellant was examined under Section 342 of Cr.P.C., wherein he refused to appear as his own witness in terms of Section 340 (2), Cr.P.C., in disproof of allegations leveled against him in the prosecution evidence but opted to rely upon the documents tendered by co- accused, Shaukat Ali in his statement. While replying to the question that why this case was against him and why the PWs deposed against him, Waqas (the appellant) made following deposition:
“I have been implicated in this case falsely and due to malafide Hamid Mehmood alias Moudi is proclaimed offender in case FIR. No. 66/11, u/s 302, PPC, P.S Sharaqpur Sharif regarding the murder of the father of co-accused Waqas Rafique.”
10. Learned trial Court after evaluating the evidence available on record found version of the prosecution proved beyond any shadow of reasonable doubt against the appellant, resulting into his conviction in the afore-stated terms.
11. Arguments advanced from both sides as well as on behalf of Deputy Prosecutor General have been heard. I have also gone through the record available on file with the able assistance of the learned counsel for the parties.
12. The incident took place on 02-04-2011 at about 6:15 p.m. in the area of Ahyapur in front of house of Asghar Arain within the jurisdiction of police station Sharaqpur. The incident was reported to the police by Muhammad Akram (PW-3) through his written complaint (Exh.PC). The inter-se distance between the place of occurrence and the police station was 11 Kilometers and according to the police karwai endorsed at the end of the written complaint (Exh.PC) which was recorded by Asad Ullah Khan, SI (retired) (CW-11) at the place of occurrence at 6:45 p.m., who referred the written complaint (Exh.PC) to police station through Yousaf 913/Constable, on the basis whereof, formal F.I.R. (Exh.PB) was chalked out on the same day at 7:23 p.m. Muhammad Akram (PW-3) deposed during cross- examination that:
“The FIR was lodged on my written application. The written complaint Ex.P.C was drafted by some police official. I use to sign in English. The complaint Ex.P.C was signed in English. The Ex.P.C is the same which was originally drafted at my statement. I can not recall the name of police official who drafted complaint Ex.P.C.”
Even the request for post-mortem examination (Exh.PK), was made on 03.04.2011 at 11:30 a.m. Whereas, the post-mortem on the dead body of Mukhtar Ali-the deceased was conducted on 03-04-2011 at 06:45 p.m. by Dr. Zahoor Ahmad (CW-4). In this regard Dr. Zahoor Ahmad (CW-4) deposed during examination-in-chief that:
“Stated that on 02.04.2011 at 11:30 am while posted as CMO at DHQ Hospital Sheikhupura I conducted the autopsy on the dead body of Mukhtar Ali alias Godu s/o Noor Muhammad aged 25 years which was brought by Rashid Ali 1870/C and Basharat Ali 1886/C P.S Sharaqpur with history of fire-arm injury and death on 6:45 pm on 02.04.2011 (dated of conduction of autopsy mistakenly written as 02.04.2011 whereas actually it was 03.04.2011).”
“It is correct that during the course of investigation while putting the questionnaire Muhammad Akram s/o Noor Muhammad (alleged injured) replied that he after running away from the place of occurrence he had dived into a moorland/chappar and after half an hour he went to the village of in-laws of Aslam Noor pur Arainan and talked to his father by using his sim in the mobile of wife of brother-in-law of Aslam and thereafter the police was intimated about the occurrence and then the FIR was accordingly registered.”
On the other hand, Muhammad Akram (PW-3) deposed during cross-examination that:
“The night followed by the occurrence was spent by me at our home. My wound was temporarily bandaged by the police official at police station however I was taken to DHQ Hospital Sheikhupura on the next day.”
The Hon’ble Supreme Court of Pakistan held in the case of Iftikahar Hussain and another v. The State (2004 SCMR 1185) that:
“Section 154-First Information Report--FIR being a corner stone of the prosecution case to establish guilt of the accused involved in the crime, has got a very significant role of play--Any doubt in lodging of FIR and commencement of investigation gives rise to a benefit of accused--FIR lodged after conducting an inquiry loses its evidentiary value.”
Thereafter, private complaint (Exh.PA) was filed after a long lapse of time on 06-09-2014 by Naseem Akhtar (PW-1), mother of Mukhtar (the deceased), Muhammad Aslam (PW-2) and Muhammad Akram (PW-3). If there was inaction to deal with the version of Muhammad Akram (PW-3) by the police in the year 2011, there was no reason for the subsequent complainant (PW-1) to wait for more than three years to approach the Court by making a private complaint (Exh.PA). The delay has not been properly explained. Naseem Akhtar (PW-1) admitted during cross-examination that:
“I do not know that whether in my cursory statement I have deposed that me and my husband were at our house at the time of occurrence. I did not get record that fact in my cursory statement. Confronted with cursory statement Ex.DA where it is so recorded. It is correct that in my cursory statement I have recorded that me and my husband came at the spot when we listened the noise of firing.”
Muhammad Akram (PW-3) deposed during cross-examination that:
“Since I had gone to
“After thorough investigation accused persons nominated of FIR and that of abetment were declared innocent by the police on 12.06.2011 vide zimni No. 28 which opinion was endorsement by the SHO Mansab Dar.”
(PW-1) deposed during cross-examination that:
“I have never joined the investigation of FIR lodged by my son Akram PW. It is correct that police did not record my any statement in said FIR. Volunteered I also did not get record my statement to police.”
Asad Ullah SI (retired) (CW-11) the Investigating Officer deposed during examination-in-chief that:-
“As long as investigation of the case remained with me, the complainant remained failed to establish any enmity of the accused party towards them. I rather found that complainant party was having enmity towards Nazeer alias Jeero s/o Mokham Din as real brother of the complainant had abducted sister of Nazeer alias Jeero and had married with her; had transferred in his name share in the property of sister of Nazeer alias Jeero and thereafter had deserted her after subjecting physical torture ensuing with pronouncement of Talaq. Few days before the alleged occurrence wife of Nazeer went outside to collect dry woods for fueling when complainant party subjected her to physical torture. Mansha s/o Din Muhammad stated that upon hearing the firing his wife went outside and I also went behind her while asking about the incident whereupon she explained that she had seen Nazeer alias Jeero making fire shots with his Kalashnikov and sitting on the back of an unknown person driving a motorcycle while a helmet on his face and the Mansha also saw Nazeer alias Jeero and that unknown person decamping from the spot while brandishing his weapon. Said s/o Wali Muhammad explained that at the time of alleged occurrence he was also present nearby place of occurrence when he saw Nazeer alias Jeero holding a Kalashnikov sitting on the back of unknown person with a helmet on, driving a motorcycle going towards the place of occurrence and then after a little while passing him again while coining back from the place of occurrence.”
In the circumstances, I cannot avoid the conclusion that the motive, as alleged, was an afterthought and has not been proved by any credible evidence.
“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 the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right.”
19. In view of what has been noticed and discussed above, Criminal Appeal No. 118259 of 2017 is accepted. The conviction and sentence awarded by the learned Additional Sessions Judge, Ferozwala vide judgment dated 21.11.2017 is set aside and the appellant, Waqas is acquitted of the charges in private complaint under Sections 302, 324, 109, 148, 149, PPC read with Section 155-C of Police Order, 2002 in case F I.R. No. 199 of 2011, dated 02.04.2011, offence under Sections 302, 324, 109, 148, 149, P.P.C., registered at Police Station, Sharaqpur, District Sheikhupura. The appellant-Waqas is in jail. He (the appellant-Waqas), is directed to be released forthwith, if not required in any other case.
20. So far as Criminal Revision No. 116281 of 2017 filed by the complainant, namely Naseem Akhter for enhancement of compensation as well as sentence of the appellant awarded by the learned trial Court is concerned, for the reasons afore-stated, same is devoid of any legal force, which is accordingly dismissed.
21. So far as PETITION FOR SPECIAL LEAVE TO APPEAL No. 120552 of 2017 seeking conviction under Section 302 (b), P.P.C. of Respondent No. 2, Shaukat Ali is concerned, this Court has noted that as the role of the Respondent No. 2, Shaukat / Ali is concerned, for the reasons stated above, the same has no weight. Whereas, Respondent No. 3, Moazzam is still proclaimed offender, so instant petition is dismissed being not maintainable. For what has been discussed above in the light of prosecution evidence, medical as well as documentary evidence, the acquittal of Respondent No. 2, Shaukat Ali does not suffer from any illegality, so as to, call for my interference with the impugned judgment. This Court has also taken note of the settled principle of criminal jurisprudence that unless it can be shown that the judgment of the lower Court is perverse or it is completely illegal and no other conclusion can be drawn except the guilt of the accused or there has been misreading or non? reading of evidence resulting in miscarriage of justice. Even otherwise, when an accused is acquitted by a Court of competent jurisdiction, double presumption of innocence is attached to his case. The acquittal order cannot be interfered with, whereby an accused earns double presumption of innocence as held in Muhammad Mansha Kausar v. Muhammad Asghar and others (2003 SCMK. 477). In this case, the prosecution has not been able to bring on record adequate incriminating evidence against Respondent No. 2, Shaukat Ali, which connects him with the alleged crime. The learned trial Judge has advanced valid and plausible reasons for recording acquittal in favour of Respondent No. 2, Shaukat Ali. The judgment of acquittal does not call for any interference. Consequently, I find no merits in this petition bearing No. 120552 of 2017, which is hereby, dismissed being without merits.
(A.A.K.) Appeal accepted
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