PLJ 2021 Cr.C. 1381 (DB)
Delay in Reporting of FIR--
----No plausible explanation--Therefore, we hold that, this delay in setting the machinery of law into motion speaks volumes against the veracity of prosecution version. [P. 1385] A
2019 SCMR 274.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b), 394 & 411--Conviction and sentence--Challenge to--Qatl-e-amd--Delay in lodging FIR--Benefit of doubt--There is another intriguing aspect of case that no features of assailants have been mentioned in FIR--Appellant was arrested in this case under Section 54, Cr.P.C. and was sent to judicial lock up for purpose of identification parade which was conducted with delay of nine days--It evinces that fathers of appellants made extra judicial confession before PW-9 and beseeched for exoneration of accused--When prosecution has already nominated appellant as accused in this case then subsequent proceedings of identification parade are nullity in eye of law and has no evidentiary worth--Identification parade was not conducted in accordance with law--Courts have always deprecated such kind of statements, which are made with purpose to strengthen case of prosecution on behest of police officials or some other ulterior motives to get suspect convicted by hook or by crook--Nomination through supplementary statements have always been deprecated and disliked by Hon’ble Supreme Court and has never been appreciated for same being afterthought--Appellants have been involved on evidence of supra mentioned PWs, with suspicion that persons who met in their presence to accused (since acquitted) were appellants--said co-accused has been acquitted of charge through judgment impugned herein--When evidence of PWs has been disbelieved to extent of co-accused then their evidence cannot be believed against appellants--Both witnesses of above said recovery memo are police constables--Alleged place of recovery is an open place and accessible to everyone--In this backdrop, recovery regarding pistol at pointation of appellant has no evidentiary worth--Even otherwise mandatory provisions of Section 103, Cr.P.C. had flagrantly been violated hence this piece of evidence is also of no avail to prosecution--Similarly on recovery of pistol 30 bore along with amount of Rs. 10,000/- with denomination of ten notes of Rs. 1000/- , one mobile phone Nokia along with two sims were taken into possession on pointation of appellant from room of his house--Both witnesses namely are witnesses of ocular account--Court have already disbelieved statements of supra PWs with respect to ocular account--Even otherwise police has not associated any independent witness of vicinity, for reason, evidence of PWs is of no avail to prosecution--As regards report of PFSA is concerned that is only to effect of mechanical condition of pistol and no comparison was made because crime empty was not sent for analysis--In eventuality of above said facts report of PFSA is inconsequential--As regards others recoveries, i.e. CMC which
was recovered at pointation of appellant, recovery of amount of
Rs. 14,000/- and mobile phone on pointation of appellant are concerned, that no number of notes have been mentioned in FIR nor in recovery memo--Currency notes are easily available and can also be planted easily--As Court have already discarded main evidence then above mentioned corroborative piece of evidence has no value in eye of law--Prosecution has failed to prove its case against appellants--Appeal was allowed by extending them the benefit of doubt. [Pp. 1385, 1386 & 1387] B, D, E, F & G
2019 SCMR 79 & 2017 SCMR 898.
M/s. Sheeba Qaiser and Ghulam Abbas Tarar, Advocates for Appellants.
Mr. Muhammad Nawaz Shahid, Deputy Prosecutor General for State
Mr. Muhammad Ali Khatana, Advocate for Complainant in appeal and petitioner in revision.
Date of hearing: 9.6.2021.
PLJ 2021 Cr.C. 1381 (DB)
[Lahore High Court, Lahore]
Present: Sadaqat Ali Khan and Muhammad Tariq Nadeem, JJ.
SHAFQAT ALI etc.--Appellants
versus
STATE etc.--Respondents
Crl. A. No. 94042-J, Crl. Rev. No. 111715 & M.R. No. 572 of 2017, heard on 9.6.2021.
Judgment
Muhammad Tariq Nadeem, J.--Ghulam Rasool and Shafqat Ali alias Shafoo appellants along with Muhammad Shahbaz (co-accused since acquitted) were tried by the learned trial Court in case FIR No. 274 dated 25.07,2014 for offences under Sections 302/394/411, PPC registered at Police Station Sahianwala, District Faisalabad and vide judgment dated 04-10-2017 while acquitting Muhammad Shahbaz, convicted and sentenced the appellants as
Ghulam Rasool
Under Section 302(b), PPC death as Tazir for the murder of Nazar Abass (deceased) along with compensation under Section 544-A, Cr.P.C.of Rs. 4,00,000/- to the legal heirs of deceased and in default thereof to further undergo 06 months S.I.
Under Section 394, PPC Life Imprisonment along with fine of Rs. 1,00,000 and in default thereof to further undergo 01 month S.I.
Under Section 411, PPC for a period of three years.
All the sentences were ordered to run concurrently. Benefit of Section 382-B Cr.P.C. was extended to him.
Shafqat Ali alias Shafoo
Under Section 302(b), PPC life imprisonment as Tazir for the murder of Nazar Abbas (deceased) along with compensation under Section 544-A, Cr.P.C. of Rs. 2,00,000/- to the legal heirs of deceased and in default thereof to further undergo 06 months S.I.
Under Section 394, PPC life Imprisonment along with fine of Rs. 1,00,000/and in default thereof to further undergo 01 month S.I.
Under Section 411, PPC for a period of three years.
All the sentences were ordered to run concurrently. Benefit of Section 382-B, Cr.P.C. was extended to the convict.
The appellants have filed appeal against their convictions and sentences whereas the learned trial Court has sent Murder Reference for the confirmation of death sentence of Ghulam Rasool appellant or otherwise, while criminal revision has been preferred by Azhar Abbas petitioner for enhancement of sentences of Respondent Nos. 1 and 2. Since common questions of law and facts are involved, therefore, all these matters are being disposed of by means of this single judgment.
2. The facts of the case have been stated by Syed Azhar Abbas complainant (PW7) in his statement before the learned trial Court, which are hereby reproduced for narration of the same:
“On 25.07.2014, I along with PW Saparas Ali was going to purchase the spare parts of peter engine. My brother Nazar Abbas aged about 34/35 years, who used to collect electricity bills of co-villagers to pay off the same in the Habib Bank Chak No. 13/JB Sar Murad Wala. It was about 11.30 a.m,. my brother Nazar Abbas left for Chak No. 13/JB by his motor cycle. He was having Rs. 100,000/- . My brother Nazar Abbas was ahead of us and we were following him on our motor cycle. When he reached bridge Jhal Moti Raam, Jhang Branch Canal, where two persons, who were not known to us them, who were lateron identified by us Ghulam Rasool accused, present in the Court today, during identification parade proceedings in jail whereas second Shafqat Hussain accused, present in the Court today, we identified him after his apprehension in the police station Both of them tried to stop my brother Nazar Abbas on gunpoint but he did not stop. Ghulam Rasool accused, present in the Court, armed with .30 bore pistol fired upon Nazar Abbas, which landed of his right buttock and went through and through. My brother fell down. Both the accused persons stated above snatched Rs. 100,000/- from him and decamped from the scene while making fire shots. We did not interfere due to threat of fire-arms. We witnessed the occurrence with our eyes. We transported Nazar Abbas in critical injured condition to Allied Hospital, Faisalabad where he remained struggling for his life. I had a doubt that some one had tipped the accused persons that Nazar Abbas was travelling with amount. The name of their co-accused, who tipped them, during investigation came to our knowledge was Shahbaz, who is also present today in the Court. We on taking care of Nazar Abbas found his I.D, Card missing and that too was taken away by the culprits. I went to police station, where I presented written application Exh. PF.
Police came to the place of occurrence and collected blood-stained earth from the spot, sealed it into a parcel and took into possession vide recovery memo Exh. PG, attested by me and PW Saparas Ali.
On 26.07.2014 at about 03.15 a.m. night, my brother Nazar Abbas breathed his last in the hospital.
3. Arguments heard and record perused.
4. As per contents of FIR, the alleged incident took place on 25.07.2014 at 11:00 a.m. and the matter was reported to the police on 25.07.2014 at 07:10 p.m. i.e. about 7 hours and 40 minutes after the incident. The distance between police station and the place of occurrence is 10 kilometers. No plausible explanation for the aforesaid delay has been brought on record. Even while appearing before the learned trial Court the prosecution witnesses did not utter even a single word about the above said delay. Therefore, we hold that this delay in setting the machinery of law into motion speaks volumes against the veracity of prosecution version. Reliance is placed on case law titled as “Altaf Hussain vs. The State”(2019 SCMR 274).
Description: A5. After going through the record we have noticed that according to the prosecution story Azhar Abbas complainant (PW-7) and Saparas Ali (PW8) escorted the Nazar Abbas (since deceased) in injured condition to the Allied Hospital on 25.07.2014 who remained admitted there till 26.07.2014 but astonishingly he was not got medically examined, similarly, his medico legal certificate is not available which speaks volume regarding the authenticity of prosecution story.
Description: B6. There is another intriguing aspect of the case that no features of the assailants have been mentioned in the FIR. Ghulam Rasool appellant was arrested in this case under Section 54, Cr.P.C. on 25.08.2014 and was sent to judicial lock up for the purpose of identification parade which was conducted on 03.9.2014, i.e. with the delay of nine days. After going through the record it evinces that on 26.8.2014 fathers of the appellants made extra judicial confession before Muhammad Fareed (PW-9) and beseeched for exoneration of accused. When the prosecution has already nominated the appellant Ghulam Rasool as accused in this case then subsequent proceedings of identification parade are nullity in the eye of law and has no evidentiary worth. Furthermore, the identification parade was not conducted in accordance with law. Syed Masood Hussain Zaidi, learned Special Judicial Magistrate (PW-11) has admitted in his cross-examination that he had not checked the register of jail to verify as to whether, as per his instruction the accused Ghualm Rasool was allowed to see some visitor or not. Similarly, he further admitted that Azhar Abbas PW did not mention the description/features of the accused at the time of his statement before him in the jail to identify the accused and same is the position of statement of Saparas Ali PW. In the light of above mentioned facts, we hold that identification in this case is not helpful to the prosecution.
Description: C7. Insofar as the case of Shafaqat Ali alias Shafoo appellant is concerned, we have noted that the said appellant has been nominated in this case through supplementary statement of the complainant which was recorded on 26.08.2014, i.e. after the delay of one month. The Courts have always deprecated such kind of statements, which are made with the purpose to strengthen the case of the prosecution on the behest of the police officials or some other ulterior motives to get the suspect convicted by hook or by crook. Nomination through supplementary statements have always been deprecated and disliked by the Hon’ble Supreme Court and has never been appreciated for the same being afterthought. Here, we would like to refer to the cases of “Kashif Ali vs. The Judge, Anti-terrorism, Court No. II, Lahore and others” (PLD 2016 SC 951) and “Akhtar Ali and others VS. The State” (2008 SCMR 06).
8. According to the prosecution case, on 25.07.2014 at about 10.40 a.m. Muhammad Fareed (PW9) and Ashfaq Hussain (PW10) were present near dera of one Nawaz, Shahbaz (acquitted co-accused) was standing at the corner of his house. Two persons who were not known to them (to whom both the PWs identified in the Court) came to Shahbaz accused (since acquitted) on a motorcycle. They talk with Shahbaz for some time and then both the appellants Ghulam Rasool and Shafqat Ali alias Shafoo went towards Chak No. 17/JB, thereafter, Shahbaz accused remained busy on his mobile at about 12.00 (noon). Both the supra mentioned PWs came to know that Nazar Abbas has been fired and an amount of Rs. 1,00,000/- of electrify bills of the villagers have been snatched from him. They have a strong suspicion that the above mentioned appellants have committed this occurrence.
Description: DIt is pertinent to mention here that the appellants have been involved on the evidence of supra mentioned PWs, with the suspicion that the persons who met in their presence to Shahbaz accused (since acquitted) were the appellants. The said Shahbaz co-accused has been acquitted of the charge through judgment impugned herein. When the evidence of op-cit PWs has been disbelieved to the extent of Shahbaz co-accused then their evidence cannot be believed against the appellants. A reference in this context may be made to the case reported as “Munir Ahmad and another vs. The State and another” (2019 SCMR 79).
Description: E9. Now we advert to recoveries affected from the appellants in this case. According to the prosecution case on 05.09.2014 recovery of pistol 30 bore (P-1) was taken into possession vide memo Exh. PK on the pointation of Ghulam Rasool appellant from the area of Chak No. 129 adjacent to reeds plant after digging the earth. Both the witnesses of above said recovery memo are police constables. The alleged place of recovery is an open place and accessible to everyone. In this backdrop, the recovery regarding pistol (P1) at the pointation of Ghulam Rasool appellant has no evidentiary worth. Even otherwise the mandatory provisions of Section 103, Cr.P.C. had flagrantly been violated hence this piece of evidence is also of no avail to the prosecution. Reference in this context may be made to the case of “Muhammad Ismail and others vs. The State” (2017 SCMR 898).
Description: FSimilarly on 08.09.2014 recovery of pistol 30 bore along with amount of Rs. 10,000/- with the denomination of ten notes of Rs. 1000/- one mobile phone Nokia along with two sims were taken into possession vide memo Exh. PK on the pointation of Ghulam Rasool appellant from the room of his house. Both the witnesses namely Saparas Ali and Azhar Abbas are the witnesses of ocular account. We have already disbelieved the statements of supra mentioned PWs with respect to the ocular account. Even otherwise the police has not associated any independent witness of the vicinity, for the reason, the evidence of above mentioned PWs is of no avail to the prosecution. As regards the report of PFSA is concerned that is only to the effect of mechanical condition of the pistol and no comparison was made because the crime empty was not sent for analysis. In the eventuality of the above said facts the report of PFSA is inconsequential.
Description: G10. As regards the others recoveries, i.e. CNIC Exh, PA which was recovered at the pointation of Ghulam Rasool appellant, recovery of amount of Rs. 14,000/- and mobile phone on the pointation of Shafqat Ali alias Shafoo appellant are concerned, we have noticed that no number of notes have been mentioned in the FIR nor in recovery memo. Currency notes are easily available and can also be planted easily. As we have already discarded the main evidence then the above mentioned corroborative piece of evidence has no value in the eye of law.
11. Resume of the above discussion is that the prosecution has failed to prove its case against the appellants beyond any shadow of doubt, therefore, we accept appeal filed by Ghulam Rasool and Shafqat Ali alias Shafoo appellants, set aside their convictions and sentences recorded by the learned trial Court and acquit them of all the charges by extending them the benefit of doubt. The appellants are in jail, they be released from the jail forthwith if not required in any other case. Murder Reference is answered in the NEGATIVE and the sentence of death of Ghulam Rasool appellant is NOT CONFIRMED.
12. As a natural corollary, criminal revision filed by Azhar Abbas complainant for enhancement of sentences of Respondent Nos. 1 and 2 is dismissed.
(A.A.K.) Appeal allowed
0 Comments