PLJ 2021 Cr.C. 1295
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b), 449, 337-F(3), 337-F(1), 337-F(3) & 324--Conviction and sentence--Challenge to--Benefit of doubt--Delay in FIR--Credibility of witness--Motive--Dispute of plot--Medical evidence--Alleged recovery of pump action--Delay is normally occasioned due to incomplete police papers necessary to be handed over to Medical Officer to conduct postmortem examination of dead body of deceased which happens only when complainant and police remain busy in consultation and preliminary inquiry regarding culprits in such cases of unwitnessed occurrence--It was case of complainant in FIR and stated by him before trial Court that appellants along with their co-accused fired at deceased and he narrated specific seat/locale of injuries on their person--Scrutiny of prosecution evidence reflects falsity of eye-witnesses as occurrence was committed within--a few minutes and it was humanly impossible to provide such minute details in such a photographic manner or to assign specific role and furnish detailed description of same, which would rather infer to falsely rope in accused persons, as such lodging of FIR with such minutest details of case rules out possibility of truthfulness and narratives of FIR suggest exaggeration and improvements made by eye-witnesses admittedly inimical towards appellants--Motive behind occurrence as alleged in FIR was dispute of plot between complainant and Mehram, measuring eight-marlas situated in village and due to that revenge, accused in consultation with each other committed occurrence--No cogent/convincing evidence qua motive part of incident was produced by prosecution during trial Moreover no independent witness qua motive was produced during course of investigation or brought in witness box at trial--So far as alleged recovery-of pump action at instance of appellant is concerned same is immaterial because report of PFSA qua said weapon is in negative--No recovery was effected at instance of co-accused during course of investigation--As far as medical evidence is concerned, same may confirm ocular account with regard to receipt of injury, locale of injury, kind of weapon used for causing injury, duration between injury and death but it would not tell name of assailants--Held: It is by now well established principle of law that it is prosecution, which has to prove its case against accused by standing on its own legs and it cannot take any benefit from weaknesses of tine case of defence--In instant case, prosecution remained failed to discharge its responsibility of proving case against appellant.
[Pp. 1300, 1301, 1302] A, B, D, E, F & G
2011 SCMR 1190, 2016 SCMR 1628, 2015 SCMR 840, 2011 SCMR 323, 1995 SCMR 599 and 2009 SCMR 230.
Credibility of witness--
----It is a settled law that credibility of a witness is looked with serious suspicion if his statement under Section 161, Cr.P.C. is recorded with delay without offering any plausible explanations. [P. 1301] C
1998 SCMR 570.
Benefit of doubt--
----It is also well established that if there is a single circumstance which creates doubt regarding prosecution case, same is sufficient to give benefit of doubt to accused, whereas, instant case is replete with number of circumstances which have created serious doubt about prosecution story. [P. 1302] H
M/s. Andaz Jilani Khan, Rai Tariq Saleem and Ijaz-ul-Hassan Mughal, Advocates for Appellants.
Rai Ashfaq Ahmad Kharal, Advocate for Appellant (Imtiaz).
Ch. Muhammad Akram Tahir, District Public Prosecutor and Atif Khan, Deputy District Public Prosecutor for State.
M/s. Khadim Hussain Sidhu and Rana Sarfraz Yousaf, Advocates for Complainant.
Date of hearing: 25.6.2021.
PLJ 2021 Cr.C. 1295
[Lahore High Court, Lahore]
Present: Shehram Sarwar Ch., J.
MUHAMMAD HAYAT etc.--Appellants
versus
STATE etc.--Respondents
Crl. A. No. 899-J of 2016 & Crl. Rev. No. 170 of 2017,
heard on 25.6.2021.
Judgment
Muhammad Hayat, Atta Ullah, Allah Ditta, Muhammad Abbas and Imtiaz @ Baata (appellants) along with their co-accused namely Parveen Bibi w/o Allah Ditta, Muhammad Nawaz, Muhammad Ashraf and Parveen Bibi, w/o Abbas were tried by learned Addl. Sessions Judge, Nankana Sahib in case FIR No. 435 dated 04.11.2012, offence under Sections 302, 324, 452, 109, 148 and 149, PPC, registered at Police Station Bara Ghar District Nankana Sahib for murder of Mst. Daulat Bibi, Sajida Bibi and Nosheen Bibi, wife, daughter and daughter-in-law of the complainant and launching murderous assault upon the complainant party. Vide judgment dated 08.12.2016 passed by the learned trial Court, the appellants have been convicted and sentenced as under:--
“(i) Under Section 302(b), PPC read with Section 149, PPC “Imprisonment of life on three counts” with the direction to pay compensation of Rs. 100,000/- each under Section 544(A), Cr.P.C., to the legal heirs of all three deceased. In default of payment of compensation they shall further undergo S.I for six months each.
(ii) Under Section 449-PPC read with Section 149, PPC Rigorous imprisonment of 10 years each with fine of
Rs. 20,000/- each, in default of payment they shall undergo S.I for one month each.
(iii) Under Section 337-F(3), PPC read with Section 149-PPC three years R.I as Tazir and Daman of Rs. 20,000/-. Under Section 337-F(6), PPC R.I of five years and Daman of Rs. 50,000/- for causing hurt to Shanzal Naveed.
(iv) Under Section 337-F(1), PPC R.I. of one year and Daman of Rs. 5,000/-. Under Section 337-F(6) R.I of five years and Daman of Rs. 50,000/- for causing hurt to PW Ghulam Rasool.
(v) Under Section 337-F(3), PPC three years R.I and Daman of Rs. 20,000/-. Under Section 337-F(6) five years R.I and Daman of Rs. 50,000/-. Under Section 334, PPC R.I of 10 years and Arsh of 1/10th of diyat for causing hurt to Razia Bibi.
(vi) Under Section 324, PPC read with Section 149, PPC R.I of 06 years with the fine of Rs. 10,000/-. In default of payment of fine they shall undergo S.I for six months each.
41. All the sentences shall run concurrently, benefit of Section 382-B, Cr.P.C. is extended to the accused………”
Through the same judgment, Parveen, Bibi w/o Allah Ditta and Parveen Bibi w/o Abbas, Co-accused of the appellants were acquitted of the charge by extending them benefit of doubt and no appeal against their acquittal was filed either by the State or the complainant, as conceded by learned Law Officers as well as learned counsel for the complainant. Whereas, Muhammad Nawaz and Muhammad Ashraf, co-accused of the appellants were acquitted on the basis of compromise arrived at between them and legal heirs of the deceased and injured persons. Assailing the above convictions and sentences, the appellants have filed the appeal in hand, whereas the complainant has also filed a Crl. Revision No. 170 of 2017 for enhancement of sentences awarded to the appellants as well as compensation amount, Since both these matters have arisen out of the same judgment, therefore, shall be decided together through this single judgment.
2. Prosecution story, as set out in the FIR (Ex.PA) registered on the written application (Ex.PA/1) of Abdul Ghafoor, complainant (PW.2) is that on the night of 03.11.2012 at around 11.00/12.00 p.m. (night), he was present in his house along with, his son Sohail Abbas, other family members and Ghulam Rasool (guest), who had come to see his daughter Nosheen alias Noshi daughter-in-law (bahu) of complainant. A bulb was lit in the Courtyard of house and the complainant party was talking to each other. Meanwhile, Muhammad Irshad alias Shado armed with kalashnikov, Allah Ditta armed with pistol, Abbas armed with kalashnikov, Hayat armed with .12 bore double barrel gun, Atta armed with pistol, Nawaz, Muhammad Ashraf both armed with .12 bore double barrel gun, Mehram and Imtiaz both armed with pistols entered the house by scaling over the wall. Mehram raised lalkara to kill the complainant party. Whereupon, Muhammad Irshad and Allah Ditta fired with their Respective weapons hitting Dolat Bibi alias Dolan wife of complainant on her chest, abdomen above umbilicus, left flank and right side of back, who succumbed to the injuries on the spot. Abbas, Hayat and Atta Ullah made fires with their respective weapons which landed on left ribs, right thigh and left arm of Sajida Bibi daughter of complainant. The fire shots made by Nawaz, Mehram, Imtiaz and Muhammad Ashraf hit on left thigh, right thigh, left biceps, right biceps and left side of abdomen of Nosheen alias Noshi; both thighs of Ghulam Rasool; on right foot, both calves, right knee of Sanjal Naveed paternal grandson of complainant and also on right leg, right knee, finger of left foot, right wrist and right flank of Razia Bibi daughter of complainant. Sajida Bibi, Nosheen alias Noshi, Razia Bibi, Ghulam Rasool and Sanjal Naveed fell on the ground while sustaining injuries. On hearing report of firing, Zulfiqar Ali, Amjad and respectables of the locality attracted to the spot and witnessed the occurrence. Having seen them, the accused decamped from the scene of occurrence. The injured were shifted to DHQ Hospital, Nankana Sahib but Nosheen alias Noshi succumbed to the injuries on the way while Sajida Bibi breathed her last in the hospital whereas other injured Razia Bibi, Ghulam Rasool and Sanjal Naveed were admitted in the hospital. It was alleged that the occurrence was committed on the abetment of Parveen wife of Allah Ditta and Parveen Bibi wife of Abbas. Motive behind the occurrence as alleged in the FIR was dispute of plot between the complainant and Mehram, measuring eight marlas situated in the village and due to that revenge, the accused in consultation with each other committed the occurrence. The complainant moved an application on 06.11.2012 and introduced Mushtaq Ahmad and Allah Ditta as witnesses of abetment.
3. It is pertinent to mention here that as pointed out by learned counsel for the parties and affirmed by learned Law Officers, Muhammad Abbas has died in jail while serving his sentence, therefore, this appeal to his extent stands abated. During investigation, Mehram, co-accused of the appellants became fugitive from law and he was declared proclaimed offender whereas Irshad @ Shado, co-accused had died in police encounter. After completion of investigation, report under Section 173, Code of Criminal Procedure was submitted in this case. The appellants along with their co-accused namely Parveen Bibi w/o Allah Ditta, Muhammad Nawaz, Muhammad Ashraf and Parveen Bibi w/o Abbas were summoned by learned Addl. Sessions Judge, Nankana Sahib to face the trial whereas the learned trial Court refused to summon Intizar Hussain, co-accused, who was nominated through supplementary statement of the complainant, Copies of relevant documents were provided to them, as required under Section 265-C, Code of Criminal Procedure and formal charge was framed against them, to which they pleaded not guilty and claimed trial. Statements of the appellants under Section 342 of the Code of Criminal Procedure were recorded wherein they refuted all the prosecution allegations levelled against them and professed their innocence.
4. I have heard arguments of learned counsel for the parties as well as the learned Law Officers for the State at a considerable length and have also gone through the record very minutely.
5. This tragic incident wherein three ladies namely Mst. Dolat Bibi alias Dolan, Mst. Sajida Bibi and Mst. Nosheen alias Noshi lost their lives whereas Razia Bibi (PW-3) Ghulam Rasool (PW.9) and a minor child Sanjal Naveed sustained firearm injuries, as per prosecution, took place on 03.11.2012 at 11/12:00 night in the area of Thatha Parbaira situated within the territorial limits of Police Station Bara Ghar District Nankana Sahib. The distance between the place of occurrence and the police station is one kilometer. The matter was reported to the police through application (Ex.PA/1) of Abdul Ghafoor, complainant (PW.2) on 04.11.2012 at 1:00 a.m. and formal FIR (Ex.PA) was got registered. The medical examination of the injured persons was conducted on the same night at 2:30 a.m. to 3:10 a.m., respectively i.e. with a delay of about three hours after the occurrence. The facts and circumstances of the case suggest that the FIR was not registered at the time as mentioned in the FIR because Allah Ditta (PW.10) who was son-in-law of complainant has stated in his cross-examination that’ I was along with the complainant at the time of registration of FIR, FIR was registered at about 9/10 A.M. in the morning” Even the postmortem examination of the dead bodies of Mst. Dolat Bibi alias Dolan, Mst. Sajida Bibi and Mst. Nosheen alias Noshi was conducted on 04.11.2012 at 1:30 p.m. 2:30 p.m. and 2:40 p.m. respectively, i.e. after about 13 to 15 hours of the incident. It has been held repeatedly by the Hon’ble Supreme Court of Pakistan that such noticeable delay is normally occasioned due to incomplete police papers necessary to be handed over to the Medical Officer to conduct the postmortem examination of dead body of the deceased which happens only when the complainant and police remain busy in consultation and preliminary inquiry regarding the culprits in such cases of unwitnessed occurrence. Reliance is placed on case law titled as “Irshad Ahmed vs. The State” (2011 SCMR 1190) and “Nazeer Ahmed vs. The State” (2016 SCMR 1628).
6. The ocular account in this case has been furbished before the learned trial Court by Abdul Ghafoor, complainant (PW.2), Mst. Razia Bibi (PW.3) and Ghulam Rasool (PW.9), who were closely related to the injured as well as deceased of this case. It was case of the complainant in the FIR and stated by him before the learned trial Court that the appellants along with their co-accused fired at the deceased and he narrated the specific seat/locale of injuries on their person. The scrutiny of prosecution evidence reflects the falsity of eye-witnesses as the occurrence was committed within. a few minutes and it was humanly impossible to provide such minute details in such a photographic manner or to assign the specific role and furnish detailed description of the same, which would rather infer to falsely rope in the accused persons, as such lodging of the FIR with such minutest details of the case rules out the possibility of truthfulness and narratives of the FIR suggest the exaggeration and improvements made by the eye-witnesses admittedly inimical towards the appellants. In this regard, reliance may be placed on the case law reported as “Irfan Ali vs. The State” (2015 SCMR 840). I have further observed that there are material contradictions in the statements of all the witnesses of ocular account. Complainant (PW.2) has stated in his cross-examination that “All the accused entered jointly in my room however, they separately fired at once. The firing which were made by the accused persons were received by all the persons who were present at that time” whereas Mst. Raiza Bibi (PW.3) has stated in her cross-examination that “It is correct that all the persons who were available in the room received injuries. Again stated my father Ghafoor and Sohail Abbas did not receive injury. All the accused persons entered into the room where the instant occurrence took place and all of them started indiscriminate firing. All the injured persons and deceased persons received firearm injuries in the respective cots on which they were sitting.” Likewise Ghulam Rasool (PW.9) has stated in his cross-examination that “All the accused persons suddenly entered into the room and immediately made indiscriminate firing upon the persons who were present in the said room. All the male and female persons who were present in the room received fire shot injuries”. Moreover, the above said PW.9 in his examination-in-chief did not attribute any specific injury to the appellants allegedly caused by them on the person of deceased as well as injured. Moreover, complainant (PW.2) has stated in his cross-examination that the accused indulged in firing from the distance of 2/3 feet each from the cots which were lying inside the room but the doctors (PW.11 & PW.12) who furnished medical evidence did not observe any blackening, burning or tattooing around the wounds of the deceased as well as injured persons. Admittedly, the occurrence took place on 03.11.2012 whereas the statements of Mst. Razia Bibi (PW.3) and Ghulam Rasool (PW.9) under Section 161, Cr.P.C.were recorded on 19.11.2012 and 10.11.2012, respectively which fact has been conceded by learned Law Officers, present in the Court. It is a settled law that credibility of a witness is looked with serious suspicion if his statement under Section 161, Cr.P.C. is recorded with delay without offering any plausible explanations. Reliance is placed on case law titled as “Muhammad Khan vs. Maula Bakhsh and another” (1998 SCMR 570). The argument of the learned Law Officers as well as learned counsel for the complainant that presence of Mst. Razia Bibi (PW.3) and Ghulam Rasool (PW.9) cannot be doubted at the place of occurrence due to the injuries on their person, has no substance because merely the injuries on the body of a person would not stamp him/her a truthful witness. Reliance is placed on case law titled as “Amin Ali and another vs. The State” (2011 SMR 323). Therefore, I hold that the evidence of above three eye-witnesses was not consistent, truthful and confidence inspiring.
7. Motive behind the occurrence as alleged in the FIR was dispute of plot between the complainant and Mehram, measuring eight marlas situated in the village and due to that revenge, the accused in consultation with each other committed the occurrence. No cogent/ convincing evidence qua motive part of incident was produced by the prosecution during the trial. Moreover no independent witness qua motive was produced during the course of investigation or brought in the witness box at trial. Therefore, in my view, the prosecution has not been able top substantiate the alleged motive behind the occurrence and the same has rightly been disbelieved by the learned trial Court in Paragraph No. 35 of the impugned judgment.
8. So far as alleged recovery of pump action at the instance of Muhammad Hayat (appellant) is concerned the same is immaterial because the report of PFSA qua the said weapon is in the negative. I have further noted that no recovery was effected at the instance of Atta Ullah, Allah Ditta and Imtiaz @ Baata during the course of investigation.
9. As far as medical evidence is concerned, the same may confirm the ocular account with regard to the receipt of injury, locale of injury, kind of weapon used for causing the injury, duration between the injury and the death but it would not tell the name of the assailants. Reliance is placed on “Ata Muhammad and another versus The State” (1995 SCMR 599).
10. So far as the defence pleas taken by the appellants in their statements under Section 342, Code of Criminal Procedure are concerned, since the prosecution evidence is doubtful in nature, therefore, there is no need to discuss the same which are exculpatory in nature.
11. I have considered all the pros and cons of this case and have come to this irresistible conclusion that the prosecution could not prove its case against the appellants beyond any shadow of doubt. It is by now well established principle of law that it is the prosecution, which has to prove its case against the accused by standing on its own legs and it cannot take any benefit from the weaknesses of the case of the defence. In the instant case, the prosecution remained failed to discharge its responsibility of proving the case against the appellants. It is also well established that if there is a single circumstance which creates doubt regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused, whereas, the instant case is replete with number of circumstances which have created serious doubt about the prosecution story. In this regard, reliance may he placed on the case law reported as “Muhammpd Akram versus The State” (2009 SCMR 230),
12. For the foregoing reason, the appeal in hand filed by Muhammad Hayat, Atta Ullah, Allah Ditta, and Imtiaz @ Baata (appellants) is allowed, convictions and sentences awarded to them
vide judgment dated 08.12.2016 passed by the learned Addl, Sessions Judge, Nankana Sahib are set aside and they are acquitted of the charges while extending them benefit of doubt. Muhammad Hayat, Atta Ullah, Allah Ditta and Imtiaz alias Baata (appellants) are in jail. They shall be released forthwith if not required to be detained in any other case. It is clarified that the observations made in this judgment are relevant only for the disposal of this appeal, which shall not prejudice the case of co-accused of the appellants, who was absconder at the time of pronouncement of impugned judgment.
13. In view of above dispassion, Crl. Revision No. 170 of 2017 filed by the complainant for enhancement of sentence and compensation amount imposed upon the appellants having no merits is dismissed.
(A.A.K.) Appeal allowed
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