PLJ 2021 Cr.C. (Lahore) 219
----Ss. 394, 460, 302(b), 324 & 337-F(iv)--Conviction and sentence--Challenge to--Occurrence took place in complainant's house at night--Complainant's father PW-6 and a brother sustained fire-arm injuries during occurrence--Injured, however, succumbed to injuries when he was being shifted to Allied Hospital, Faisalabad--Complainant's mother (PW-2) maternal aunt and wife (since given up) were also present in house at time of occurrence--As per FIR, occurrence was committed by five unknown accused--Prosecution has relied upon evidence of test identification parade of appellants and co-accused who being juvenile was tried separately and was convicted--He has also challenged his conviction and sentence through separate appeal--Identification parade was conducted under supervision of Judicial Magistrate Faisalabad PW-15--Appellants were picked up by complainant and PWs during identification parade but features of unknown assailants were not given in FIR--PW-1 during cross examination was confronted with his application whereby he nominated appellants and co-accused as actual culprits in this case on 05.02.2011--However, in cross examination complainant PW-1 stated that his signatures were obtained by Investigating Officer on blank paper--In cross examination complainant PW-1 also stated that appellants were not known to him prior to this occurrence--He was put multiple questions by defence as to his knowledge about names and whereabouts of appellants but he remained consistent on point that he did not have any sort of interaction with appellants prior to this occurrence--Despite that, source from which complainant came to know about names of appellants, was not disclosed--In such backdrop, identification parade in this case was not reliable--Ocular account furnished by PW-1, PW-2 and PW-6 was not worthy of credence--As regards medical evidence, PWr-12 medically examined PW-6 injured and also conducted post mortem examination on dead body of--Factum of injuries of PW-6 and death of as a result of fire-arm injuries is not denied--However, as none of accused was attributed any specific injury and their involvement in this case as observed in preceding paragraph was a doubtful affair? medical evidence was not helpful to prosecution--As far as recoveries are concerned, Investigating Officer PW-16 collected 09 empties of 30-bore on his first spot inspection, which were taken into possession vide recovery--Pistols 30-bore from each accused were recovered during investigation which were also taken into possession vide recovery--Report of forensic science agency was tendered in prosecution evidence as showing that pistol recovered from co-accused Shahbaz Ahmad matched with three empties of 30-bore--As per said report, only three empties of 30-bore and two empties of .9 MM were available with Agency and that two parcels were received in Punjab Forensic Science Agency, Lahore on 19.02.2011 and 08.04.2011--However, none of prosecution witnesses claimed to have submitted any parcel containing empties or pistols on said dates--PW-8 Riffat Iqbal 96/C in his examination in chief stated chat he transmitted a parcel containing blood stained earth in office of Chemical Examiner on 19.02.2011 and also submitted two parcels containing a pistol and three bullets each in office of Punjab Forensic Science Agency, Lahore on 22.03.2011--There is no evidence on record to show transmission of 09 empties to Punjab Forensic Science Agency, Lahore--In such backdrop, evidence of recoveries introduced in this case is of no help to prosecution's
case--Appeal were allowed. [Pp. 223 & 224] A, B & C
Mrs. Nasreen Khattak, Advocate for Appellant (in Criminal Appeal No. 214-J, of 2013).
Mr. Zubda-tul-Hassan, Advocate for Appellant (in Criminal Appeal No. 991 of 2013).
Mr. Muhammad Hanif Dahar, Advocate for Appellant (in Criminal Appeal No. 1183 of 2013).
Mr. Muhammad Nawaz Shahid, Deputy Prosecutor General for State.
Mr. Muhammad Aamir Javed Bhatti and Humayoun Rashid, Advocates for Complainant.
Date of hearing: 7.12.2020.
PLJ 2021 Cr.C. (Lahore) 219
Present: Ch. Mushtaq Ahmad, J.
versus
STATE--Respondent
Crl. A. Nos. 214-J, 991 & 1183 & Crl. Rev. No. 835 of 2013,
heard on 7.12.2020.
Judgment
Appellant Asif has challenged his conviction and sentence through Criminal Appeal No. 214-J of 2013. Appellants Tanvir Jehangir and Tanvir Abbas have challenged their conviction and sentences through Criminal Appeals Nos. 991 of 2013 and 1183 of 2013, respectively. They were tried by learned Additional Sessions Judge, Pindi Bhattian in case FIR No. 73 dated 05.02.2011 registered at Police Station Pindi Bhattian District Hafizabad for the offences under Sections 302, 460, 324, 397, 337-A(i), 337-A(ii), 337-F(iv), 337-L(ii), 148, 149, PPC. On conclusion of trial, vide judgment dated 27.06.2013, appellants were convicted and sentenced as under:
(i) Each of the appellants convicted under Section 394, PPC and sentenced to rigorous imprisonment for four years each with fine Rs. 10,000/- each, or in default, delinquent convict to undergo three months' simple imprisonment.
(ii) Each of the appellants convicted under Section 460, PPC and sentenced to undergo life imprisonment each.
(iii) Each of the appellants convicted under Section 302(b), PPC and sentenced to undergo imprisonment for life as ta'zir each with payment of compensation to the tune of Rs. 2,00,000/-eaeh under Section 544-A, Cr.P.C. or in default, delinquent convict to further undergo six months' simple imprisonment.
(iv) Each of the appellants convicted under Section 324, PPC and sentenced to undergo rigorous imprisonment for five years each with fine Rs. 10,000/- each or in default delinquent convict to further undergo simple imprisonment for three months.
(v) Each of the appellants convicted under Section 337-F(iv), PPC and sentenced to undergo rigorous imprisonment for three years each as ta'zir with payment of daman to the tune of Rs. 10,000/- each to injured Sultan Ahmad.
All the sentences were ordered to run concurrently. Benefit under Section 382-B, Cr.P.C. was extended to the appellants.
Complainant has filed Criminal Revision No. 835 of 2013 seeking enhancement of sentence of appellants. All the matters arising out of same judgment dated 27.06.2013, will be decided through this single judgment.
2. FIR was registered on the complaint made by Rizwan Ali (PW-1), alleging therein, briefly, that on 05.02.2011 at about 01:00 A.M. five unknown duly armed persons trespassed into his house and snatched on gun point ear rings from his mother Maqboolan Bibi (PW-2) and maternal aunt Matloob Bibi (since given up), mobile phone, cash Rs. 700/-, National Identity Card and Service card from complainant. On resistance was offered by complainant and his family members, whereupon accused caused three fire-arm injuries to his brother Amjad Ali and a fire-arm injury to his father Sultan Ahmad (PW-6). Accused fled away from the spot. Both the injured were shifted to hospital. However, Amjad Ali succumbed to injuries on the way to hospital.
3. Investigation was conducted by Gulzar Hussain SI PW-16. All the appellants alongwith co-accused Shahbaz Ahmad during investigation got recovered pistols .30-bore. One pair of ear rings, cash Rs. 200/- and a mobile phone was got recovered by Asif appellant. They were sent up to face trial. Formal charge was framed by learned trial Court against appellants, to which they pleaded not guilty and claimed for trial. Prosecution examined as many as sixteen witnesses at trial, whereas Nazia Bibi, Mutloob Bibi, Sana-Ullah and Imtiaz Ahmad witnesses were given up by learned ADPP being unnecessary. On completion of prosecution evidence, statements of appellants were recorded under Section 342, Cr.P.C. All of them pleaded innocence. None of the appellants opted to appear in witness box under Section 340(2), Cr.P.C. They also did not choose to produce evidence in their defence. On conclusion of trial, appellants were convicted and sentenced as mentioned in opening paragraph of this judgment, hence this appeal.
4. I have heard learned counsel for the parties, learned Deputy Prosecutor General and have gone through the record with their able assistance.
.30-bore on his first spot inspection, which were taken into possession vide recovery memo. Ex.P-C. Pistols .30-bore from each accused were recovered during investigation which were also taken into possession vide recovery memos. Ex.P-J, Ex.P-K Ex.P-U and Ex.P-L. Report
of forensic science agency was tendered in prosecution evidence as Ex.P-X showing that pistol recovered from co-accused Shahbaz Ahmad matched with three empties of .30-bore. As per said report, only three empties of .30-bore and two empties of .9 MM were available with Agency and that two parcels were received in Punjab Forensic Science Agency, Lahore on 19.02.2011 and 08.04.2011. However, none of the prosecution witnesses claimed to have submitted any parcel containing empties or pistols on said dates. PW-8 Riffat Iqbal 96/C in his examination in chief stated chat he transmitted a parcel containing blood stained earth in office of Chemical Examiner on 19.02.2011 and also submitted two parcels containing a pistol and three bullets each in office of Punjab Forensic Science Agency,
7. On re-appraisal of evidence, I have come to conclusion that prosecution had failed to prove charge against appellants beyond reasonable doubt. Therefore, findings of conviction and sentence recorded by learned trial Court in the impugned judgment are not sustainable, which are hereby set aside allowing Criminal Appeals in hand. Consequently, appellants Asif, Tanvir Tehangir and Tanvir Abbas are acquitted of the charge. They are in jail. They be released forthwith if not required in any other case.
8. As the appellants have been acquitted of the charges while allowing their appeals against conviction as mentioned in preceding paragraph, no question arises of enhancing their sentences. Therefore, Criminal Revision No. 835 of 2013 is dismissed.
(A.A.K.) Appeals allowed
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