PLJ 2021 Cr.C. 1673 (DB)
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conviction and sentence--Challenge to--Qatl-e-amd-- Prosecution has failed to prove its case beyond shadow of doubt against accused--Appellant admitted killing of deceased in his statement recorded under Section 342, Cr.P.C. with his defence plea that deceased while armed with 12-bore gun tried to fire at co-accused (since P.O.), he tried to snatch repeater 12-bore just to save his brother but unfortunately fire hit on chest of deceased which is sufficient proof of his guilt, has no substance because law is settled by now that if prosecution fails to prove its case against an accused person as in present case then accused person is to be acquitted even if he had taken a plea and had thereby admitted killing of deceased--Held: Law is equally settled that statement of an accused person recorded u/S. 342, Cr.P.C. is to be accepted or rejected in its entirety--Appeal was accepted. [Pp. 1676 & 1677] A
2008 SCMR 1064 and 2013 SCMR 383.
Ms. Sheeba Qaiser, Advocate for Appellant.
Mr. Muhammad Nadeem Sh, Advocate for Complainant.
Sardar Ahmad Kamal Noon, P.G for State.
Date of hearing: 8.6.2021.
PLJ 2021 Cr.C. 1673 (DB)
[Lahore High Court, Lahore]
Present: Sadaqat Ali Khan and Muhammad Tariq Nadeem, JJ.
MEHMOOD ALI--Appellant
versus
STATE and another--Respondents
Crl. A. No. 81414, M.R No. 563 & PSLA No. 89888 of 2017,
heard on 8.6.2021.
Judgment
Sadaqat Ali Khan, J.--Appellant Mehmood Ali along with Asad Mushtaq, Maqsood Ahmed, Shahid Ali, Ejaz, Mujahid Ali, Yousaf Ali co-accused (since acquitted) has been tried by learned trial Court in private complaint under Sections 302, 337-F(i), 337-F(ii), 337-F(v), 337-L2, 337-A(i), 337-A(ii), 148, 149, PPC arising out of case FIR No. 111 dated 28.02.2015 Police Station Saddar Jaranwala, District Faisalabad and was convicted and sentenced vide judgment dated 27.09.2017 as under:-
Mehmood Ali appellant
U/S. 302 (b), PPC Sentenced to death as Tazir for committing Qatl-i-Amd of Abdur Razzaq deceased with compensation of Rs. 5,00,000/- payable to the legal heirs of deceased under Section 544-A, Cr.P.C., recoverable as arrears of land revenue and in default whereof to Undergo simple imprisonment for six months.
2. Appellant has filed this criminal appeal against his conviction and learned trial Court has sent Murder Reference for confirmation of his death sentence or otherwise, whereas Rustam Ali complainant filed PSLA against the acquittal of respondents/accused, which are being decided through this single judgment.
3. Brief facts of the case have been stated by Rustam Ali complainant P.W.2 in his statement before the learned trial Court, which is hereby reproduced for narration of the facts:
On 28.02.2015 at about 05:00 P.M I along with my father Mohabbat and brother Abdur Razzaq were present in our agricultural land and were cutting the crop of “Sarson”. All of sudden accused Shahid armed with .222 bore rifle, Mujhaid armed with sota, Ejaz armed with pistol, Yousaf armed with hatchet, Maqsood armed with pistol and daang, Mehmood armed with .12 bore gun, Dilber armed with pistol and sota, Asad armed with sota came there. Ejaz raised lalkara that we be taught a lesson for cutting the crop of “Sarson”. On which Yousaf accused made a hatchet blow which landed on the left side of my head, Maqsood gave a sota blow which landed on my left shoulder. Blood started oozing from my head. Abdur Razzaq came forward to rescue me, than Yousaf made hatchet blow on Abdur Razzaq which landed on his head. Mehmood accused made a fire of .12 bore which landed on the chest of Abdur Razzaq on right side and Abdur Razzaq died at the spot. Maqsood made a sota blow which landed on the left ankle of my foot. Shahid hold me in japha and Asad made a sota blow which landed on my right foot. Ejaz gave a blow of handle of pistol which landed on my right elbow. My father Mohabat want forward to rescue us then Dilber gave sota blow on my father which landed on his right wrist. Accused escaped from the place of occurrence. Motive behind the occurrence is that previously the land of Rana Anwar was being cultivated by accused party and then he gave the said land for cultivation to us. Accused have committed this occurrence due to this grudge. Abdul Sattar also witnessed this occurrence. I made statement Exh.PA before the police which bears my thumb impression. Police conducted dishonest investigation and have not effected recoveries from the accused. Being aggrieved by the investigation I filed present complaint Exh.PB which was thumb marked by me.
4. After hearing learned counsel for the parties, learned DPG and on perusal of record with their able assistance, we have observed as under:
i) Abdul Razzaq was done to death whereas Mohabat (not produced as witness), Rustam Ali complainant P.W.2 sustained injuries during the occurrence took place in the field on 28.02.2015 at 5:00 p.m., FIR was lodged on the same evening at 5:50 p.m. (28.02.2015) on the written application moved by Rustam Ali complainant P.W.2 (brother of Abdul Razzaq deceased) who and his cousin Abdul Sattar P.W.3 claim themselves to be the eye-witnesses of the occurrence. Rustam Ali complainant P.W.2 stated in his statement before the learned trial Court regarding the role of the accused that Yousaf co-accused (since acquitted) gave two hatchet blows, one landed on left side of his head and other landed on the head of Abdul Razzaq deceased, Maqsood co-accused (since acquitted) gave sota blow landed on his left shoulder, Mehmood appellant made fire shot of .12-bore gun hitting on the chest of Abdul Razzaq (deceased), Maqsood co-accused (since acquitted) gave sota blow on his left ankle, sota blow made by Asad co-accused (since acquitted) landed on his right foot, blow of butt of pistol given by Ejaz co-accused (since acquitted) landed on his right elbow, contrary to this, Abdul Sattar P.W.3 did not state in his statement before the learned trial Court that Mehmood Ali (appellant) while armed with .12-bore gun caused firearm injury on the chest of Abdul Razzaq (deceased) as stated by Rustam Ali complainant P.W.2 rather he simply stated that Mahmood Ali appellant was armed with Daang, further stated that hatchet blow of Yousaf co-accused (since acquitted) landed on chest of Abdul Razzaq (deceased) and did not state that hatchet blow of Yousaf co-accused (since acquitted) landed on the head of Abdul Razzaq deceased as stated by Rustam Ali complainant P.W.2 which is a firearm wound and is not blunt injury. Above discussed contradictions between these two eye-witnesses qua the role of the appellant and others are not ignorable rather create doubt in the prosecution story shattering their credibility.
(ii) Rustam Ali complainant P.W.2 stated regarding motive of the occurrence that previously land of Rana Anwar was being cultivated by the accused party, subsequently, same was given to the complainant party but Rana Anwar being material witness has not been produced to establish motive story. Further Abdul Sattar P.W.3 being cousin of Rustam Ali complainant P.W.2 did not utter even a single word regarding this motive which is not believable.
(iii) Muhammad Aslam S.I. C.W.7 stated in his statement before the learned trial Court that on 18.03.2015 Mehmood Ali appellant during interrogation disclosed and got recovered .12-bore gun P-6 from his house, attested by Rustam Ali complainant P.W.2 whose house does not exist around the place of recovery/house of the appellant in site plan Ex.P.C/1, The I.O did not associate any person from the locality to witness the recovery proceedings, hence, the recovery is not believable. Reliance is placed on case titled “Ghulam Akbar and another vs. The State” (2008 SCMR 1064).
5. For the foregoing reasons, instant criminal appeal is accepted, conviction and sentences of the appellant awarded by the learned trial Court through the impugned judgment are hereby set aside. Mehmood Ali appellant is acquitted of the charge, 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 (Mehmood Ali) is NOT CONFIRMED.
6. In view above decision, PSLA filed by the complainant against acquittal of respondents/accused having no merits is dismissed.
7. Before parting with this judgment, it is observed that Dilbar co-accused is still P.O., his case shall be decided by the learned trial Court on its own merits without being influenced from this judgment whenever he is arrested.
(A.A.K.) Appeal accepted
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