PLJ 2021 Cr.C. (Lahore) 392 (DB)
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302, 324, 449, 148 & 149--Sentence--Challenge to--Ocular account--Firearm injuries--Injured witness--Presence of the injured witnesses cannot be doubted at the place of incident, but the question is as to whether he is truthful witness or otherwise, because merely the injuries on the person of injured PW would not stamp him truthful witness. [P. 399] A
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302, 324, 449, 148 & 149--Sentence--Challenge to--Death by causing multiple firearm injuries--Ocular account--Supplementary statement--Failed to disclose specific injury--Weight of supplementary statement--Held: It is by now settled that any statement or further statement of the first informant recorded during the investigation by police would neither be equated with First Information Report nor read as part of it and the involvement of additional accused in such statement was fake improvement which made the basis for other eye-witnesses as well for false implication. [P. 400] B
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302, 324, 449, 148 & 149--Sentence--Challenge to--Not given specification of firearm weapon of any of unknown accused in first statement--Evidence was silent regarding injuries disclosed by prosecution--Even otherwise, both the witnesses of wajtakker, who told the complainant that after the occurrence they had seen acquitted accused alongwith his co-accused when the said witnesses were irrigating their paddy crop and they identified with the help of their torch, have not been produced and they have been given up by the prosecution, thus no sanctity is attached to their version and the same cannot be considered for maintaining or awarding conviction in a case of capital punishment. [P. 401] C
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 129(g)--Criminal Procedure Code, S. 161--Witness-- by the prosecution during the trial in spite of the fact that their statements under Section 161, Cr.P.C. were duly recorded by the Investigating Officer and such feature of the case has left High Court with no other option but to draw an inference in accordance with the provisions of Article 129, Illustration (g) of Qanun-e-Shahadat Order, 1984, that had they entered the witness-box they would have deposed against the prosecution. [P. 401] D
Motive--
----Scope of--Projected motive--Death by causing firearm--Injuries--Neither Nikahnama of cauple was brought on record nor any witness of nikah was produced--Date and place of nikah or name of nikahkhawan was not brought on record-- If at all, motive as set up by prosecution was having it some shred of truth, it could very easily be proved on basis of above mentioned evidence--Moreso, marriage of deceased-couple could also easily be proved through Nikah Nama and Nikahkhawan but no such effort was made by prosecution neither at stage of investigation nor during trial--It has brought on record that prior to registration of F.I.R. abductee herself filed a petition under Section 22-A & 22-B, Cr.P.C. for registration of F.I.R. against co-accused etc.--Motive set up by prosecution could have best been proved through production of abductee before trial Court but she had not been produced by prosecution--Motive part of the prosecution case remained unproved--Failure to establish motive as set out in FIR is a factor, which goes against the prosecution--Prosecution, though is not obliged to prove the motive in each and every case, however, once the motive is setup then it must be established.
[Pp. 402 & 403] E, F & G
Dying declaration--
----Inquest report prepared subsequent to death of deceased--A dying declaration is an exception to hearsay rule and, thus, same is to be scrutinized with due care and caution--It needs no mention that for a dying person, a doctor is like nothing less than an angel and last ray of hope for him in his capacity as a savior of his life--In this backdrop, a doctor can be best person to endorse dying declaration as it is expected from a dying person to tell whole truth to doctor-- We have not been able to trace any explanation from perusal of record that as to why statement of deceased was not recorded in presence of doctor as it does not bear his signatures to verify contents of statement of deceased. It is further noticed that inquest report which was prepared subsequent to death of deceased finds no mention regarding his dying declaration. Such feature of case raises further questions over veracity and correctness of dying declaration as well as opinion of doctor, according to which deceased was fit to make statement at relevant time--Perusal of record reveals that Investigating Officer made no effort to procure attendance of any unconnected witness, though it could easily be done from concerned hospital--In these peculiar circumstances we have decided not to place any reliance upon such a document.
[P. 404] H & I
Capital Punishment--
----Sentence--If evidence of witnessesis not worthy of credence--Maintaining of convicted--Law is settled that if the eye-witnesses have been disbelieved against some accused persons attributed effective roles then the same eye-witnesses cannot be believed against another accused person attributed a similar role unless such eye-witnesses receive independent corroboration qua the other accused person. [P. 405] J
Interested witness--
----Rule of abundant causion--Benefit of doubt--Case in hand is dubious in nature as from its very appearance, it is of wider net, ocular account produced therein is furnished by interested witnesses, who were disbelieved against similarly placed four acquitted accused persons--Their statements apparently are found to be in conflict with medical evidence and even after subjecting to scrutiny from motive and recovery, prosecution case failed to get required corroboration--Hence, as a rule of abundant caution, we are swayed not to place explicit reliance upon them. [Pp. 405 & 406] K
2010 SCMR 385, 2011 SCMR 323, 2010 SCMR 97 and
2010 SCMR 1959 ref.
M/s. Asghar Ali Gill, Tazheer Shahzad Tarar & Falak Sher Bakhsh Gill, Advocates for Appellants (in Crl. Appeal No. 1569 of 2014, Crl. Appeal No. 58619-J of 2019).
M/s. Muhammad Ahsan Bhoon, Ch. Asif Mahmood &
Malik Ilyas Ahmad Awan, Advocates for Appellant (in Crl. Appeal
No. 76153-J of 2017).
M/s. Imtiaz Ahmad Gondal & Sajjad Tarar, Advocates for Complainant.
Rai Asif Mehmood, Deputy Prosecutor General for State.
Date of hearing: 1.3.2021.
PLJ 2021 Cr.C. (Lahore) 392 (DB)
Present: Sardar Muhammad Sarfraz Dogar and Asjad Javaid Ghural, JJ.
versus
STATE and others--Respondents
Crl. A. No. 1569 & M.R. No. 289 of 2014, Crl. A. No. 76153-J, 47599, Crl. Rev. No. 47602 & M.R. 427 of 2017, Crl. A. No. 58619-J of 2019, heard on 1.3.2021.
Judgment
Sardar Muhammad Sarfraz Dogar, J.--The gory incident of bloodbath took place at about 3.00 a.m. (night) on 18.7.2009 inside the house of the complainant situated in the area of village Thatha Phiray Tehsil Phalia District Mandi Bahauddin falling within the territorial jurisdiction of Police Station Phalia, in which three persons namely, Muhammad Ashraf, Ansar Bibi and Shakeela Bibi were done to death by causing multiple firearm injuries on different parts of their bodies besides causing of injuries to Zahid Iqbal and Farkhanda Bibi (both injured) in the backdrop of a motive, according to which Zahid Iqbal injured PW had abducted Farkhanda Bibi daughter of Muhammad Zaman accused 1½ months ago and contracted Court marriage and in this regard case F.I.R. No. 258/2009 was registered against Zahid Iqbal and others. In consequence whereof, nine nominated accused alongwith six unknown accused were indicted in case FIR No. 310 dated 18.7.2009 registered at Police Station Phalia under Sections 302, 324, 449, 148/149, PPC on the "Fard Bayan" allegedly made by Moazzam Shahzad complainant before the local police.
2. Muhammad Zaman, Muhammad Iqbal, Shahid Iqbal and Saif Ullah (appellants in Crl. Appeal No. 1569 of 2014) along with three other co-accused, namely, Shabbir Ahmed, Sikdandar Mehmood and Ehsan Ullah were tried by learned Additional Sessions Judge, Phalia District Mandi Bahauddin and on conclusion of the trial, vide judgment dated 15.07.2014 co-accused Shabbir Ahmed, Sikdandar Mehmood and Ehsan Ullah were acquitted, however, the learned trial Court proceeded to convict and sentence the appellants Muhammad Zaman, Muhammad Iqbal, Shahid Iqbal and Saif Ullah in the following terms:
Under Section 449, PPC, 10 years S.I. each.
Under Section 302(b), P.P.C. to suffer death sentence on three counts each for committing murders of Ansar Bibi, Muhammad Ashraf and Shakila Bibi. They were also directed to pay compensation of Rs. 3,00,000/- each to the legal heirs of each of deceased under Section 544-A, Cr.P.C. and in default whereof to undergo simple imprisonment for six months each.
Under Section 148, PPC, 1 year R.I. each.
Under Section 324/148, PPC, 5 years R.I. each with fine of Rs. 20,000/- each and in case of non-payment, to further suffer one month S.I. each.
3. Since Zaka Ullah and Qamar Zaman alias Qamri, who became absconders after the occurrence and on their arrest, through a subsequent trial held by the learned Additional Sessions Judge, Phalia, vide judgment dated 25.05.2017 while acquitting Qamar Zaman alias Qamri co-accused proceeded to convict and sentence Zaka Ullah (appellant in Crl. Appeal No. 76153-J of 2017 in the following terms:
Under Section 302(b), P.P.C. to suffer death sentence on three counts for committing murders of Ansar Bibi, Muhammad Ashraf and Shakila Bibi. He was also directed to pay compensation of Rs. 3,00,000/- to the legal heirs of each of deceased under Section 544-A, Cr.P.C. and in default whereof to undergo simple imprisonment for six months.
Under Section 449, PPC, 10 years R.I. with fine of
Rs. 20,000/-and in case of non-payment of fine, to further undergo S.I. for one month.
Under Section 148, PPC, 1 year R.I.
Under Section 324/149, PPC, 5 years R.I. with fine of
Rs. 20,000/- and in case of non-payment, to further suffer one month S.I.
Benefit of Section 382-B, Cr.P.C. was extended to him and all the sentences of imprisonment were directed to run concurrently.
4. Likewise, Adnan (appellant in Crl. Appeal No. 58619-J of 2019) being juvenile was tried separately by the learned Additional Sessions Judge, Phalia, who vide judgment dated 25.5.2017 convicted and sentenced the appellant in the following terms:
Under Section 302(b), P.P.C. to suffer imprisonment for life on three counts as Tazir for committing murders of Ansar Bibi, Muhammad Ashraf and Shakila Bibi. He was also directed to pay compensation of Rs. 3,00,000/- (one lac each to the legal heirs of each deceased) under Section 544-A, Cr.P.C. and in default whereof to undergo simple imprisonment for six months.
Under Section 449, PPC, 10 years R.I. with fine of
Rs. 20,000/-and in case of non-payment of fine, to further undergo S.I. for one month.
Under Section 148, PPC, 1 year R.I..
Under Section 324/149, PPC, 5 years R.I. with fine of
Rs. 20,000/- and in case of non-payment, to further suffer one month S.I.
Benefit of Section 382-B, Cr.P.C. was extended to him and all the sentences of imprisonment were directed to run concurrently.
5. Challenging their convictions and sentences, Muhammad Zaman, Muhammad Iqbal, Shahid Iqbal and Saif Ullah have filed Criminal Appeal No. 1569 of 2014. Zaka Ullah appellant has challenged his conviction and sentence by way of filing Criminal Appeal No. 76153-J of 2017, whereas, Adnan appellant (since declared juvenile) has filed Criminal Appeal No. 58619-J of 2019 against his above-said conviction and sentence.
6. On the other hand, the trial Court has sent references under Section 374, Cr.P.C. which were numbered as Murder Reference No. 289 of 2014 & Murder Reference No. 427 of 2017 for confirmation or otherwise of death sentences awarded to Muhammad Zaman, Muhammad Iqbal, Shahid Iqbal, Saif Ullah and Zaka Ullah, appellants respectively, whereas, Moazzam Shahzad complainant has called in question the acquittal of Qamar Zaman @ Qamri by way of filing Criminal Appeal No. 47599 of 2017, whereas, Criminal Revision
No. 47602 of 2017 has been filed by him seeking enhancement of sentence awarded to Adnan convict. Since all these matters are arisen out of the same F.I.R., and outcome of the same evidence, thus, are being disposed of through this single judgment.
7. Arguments heard. Record perused.
8. The case of the prosecution, so to speak primarily hinges upon the ocular account furnished by Moazzam Shahzad complainant and Zahid Iqbal (injured PW), the medical evidence brought on record through Dr. Fateh Muhammad, Dr. Uzma Ghaffar, & Dr. Muhammad Zafar Shah, the dying declaration (Exh.PGGG) recorded by Muhammad Walayat, S.I./I.O. The prosecution sought corroboration from the recovery of weapons effected on the disclosure and pointation of the convicts as well as from the motive and their abscondment.
9. In the wake of above, we have carefully scanned the record of this case and have found that the crime in question took place in the dark hours of night at about 3:00 a.m. According to the prosecution case, on 18.7.2009 Zahid Iqbal, (inured PW), Mst. Farkhanda Bibi wife of Zahid Iqbal (given up PW) and Muhammad Mansha (given up PW) came in the house of Moazzam Shahzad complainant as guest. Muhammad Ashraf (deceased), Mst. Ansar Bibi (deceased), Shakeela Ashraf (deceased), Mst. Farkhanda (injured PW) and Zahid Iqbal (injured PW) were sleeping in the Courtyard of the house, while Moazzam Shahzad complainant, Muzaffar Iqbal (given up PW) and Muhammad Mansha (given up PW) were sleeping on the roof top of the house. At about 3.00 a.m. (night) on the report of noise they woke up and saw 09 nominated accused persons alongwith 06 unknown accused persons entered into the house by scaling over the wall. Muhammad Ashraf father of the complainant also woke up and accused persons made intensive firing due to that father, mother of the complainant died at the spot and three persons received firearm injuries including Mst. Shakila Bibi, Mst. Farkhanda Bibi and Zahid Iqbal (injured PW), however Mst. Shakeela Bibi died subsequently in Mayo Hospital, Lahore. The motive behind this occurrence was stated to be that Zahid Iqbal the paternal cousin of the complainant abducted Mst. Farkhanda Bibi d/o Muhammad Zaman accused 1½ months ago and contracted Court marriage and in this regard case F.I.R. No. 258/2009 was registered against Zahid Iqbal and others.
10. The complainant also got recorded a supplementary statement (Ex. DA) to the effect that when he went to see the injured in Hospital, Zahid Iqbal disclosed that Zaka Ullah appellant threatened him on telephone that he had already made settlement with Sarfraz alias Frazi. In the meantime Anara and Shahid who had come to attend the injured also disclosed that early in the morning they saw few people coming on Motorcycles to whom they identified as Sarfraz, Azam, Falak Sher, Qamar alias Qamri and Shabbir Ahmad, all armed with deadly weapons. Through (Ex. DA), the complainant had assigned the roles to all the accused persons describing that how they caused injuries to all the deceased as well as the injured.
"It is correct I got my statement recorded to the police in the Hospital on 18.7.2009. We remained on the place of occurrence for 30 to 45 minutes after the occurrence. The police reached at the place of occurrence ivithin 30 minutes after the occurrence. We remained at the place of occurrence for 15 to 20 minutes after arrival of police. I was in full senses when police came at the place of occurrence. The police did not record my statement at the place of occurrence."
15. So far as the recovery of rifle 8-mm (P.11) from Muhammad Zaman appellant and recovery of pistol .30 bore (P-12) from Muhammad Iqbal appellant is concerned, suffice it to observe that as per F.I.R. Muhammad Zaman appellant was shown to be armed with 7-MM rifle, whereas, no recovery of 7-MM rifle was made from him. Likewise, report of Forensic Science Laboratory (Ex. PLLL), depicts that the percussion cap of the crime empty of 30 bore was perforated and as such lacks date for identification, therefore, nothing could be opined as to whether or not it had been fired from the pistol 30 bore. Therefore, the alleged recovery of weapons of offence from the possession of Muhammad Zaman and Muhammad Iqbal appellants is of no avail to the prosecution.
to point out here that it has brought on record that prior to registration of F.I.R. Mst. Farkhanda Bibi herself filed a petition under Section 22-A & 22-B, Cr.P.C. for registration of F.I.R. against Zahid etc. The motive set up by the prosecution could have best been proved through production of Mst. Farkhanda Bibi before the trial Court but she had not been produced by the prosecution. From this failure the only inference which can be drawn by this Court is in consonance with Article 129, illustration (g) of Qanun-e-Shahadat Order 1984, which reads as under:
129. Court may presume existence of certain facts. The Court may presume the existence of any fact, which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and the public and private business, in their relation to the facts of the particular case.
Illustrations
The Court may presume:
(g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who ivithholds it.
The Hon'ble Supreme Court of 'Pakistan in the case of "Muhammad Rafique and others v. State and others" (2010 SCMR 385) held as under:
"that if any party withholds the best piece of evidence then it can fairly be presumed that the party had some sinister motive behind it. The presumption under Article 129(g) of Qanun-e-Shahadat Order can fairly be drawn that if PW would have been examined, his evidence would have been unfavourable to the prosecution".
"Prosecution though not called upon to establish motive in every case, yet once it has set up a motive and fails to prove the same, then prosecution must suffer the consequence and not the defence".
In the case of "Muhammad Bux v. Abdul Aziz and others" (2010 SCMR 1959), the Hon'ble Supreme Court of Pakistan observed as under:
"In this case, motive is an important fact, which has not only been alleged in the FIR but the evidence has been led. The said motive has not been relied upon by the trial Court and the High Court as the prosecution jailed to prove the same. In such a situation, the Court should be very careful in accepting prosecution story and the evidence of such witnesses who not only gave evidence on motive and incident should be accepted with great caution."
18. The fact that the appellants Zaka Ullah, Adnan and Qamar Zaman @ Qamri respondent absconded and were not traceable for considerably long period of time could also not be made sole basis for their conviction when the other evidence of the prosecution is doubtful as it is riddled with contradictions. Reliance in this regard is placed on "Muhammad Sadiq vs. The State" (2017 SCMR 144).
20. Considering the overall circumstances, it can be safely held that prosecution has not been able to prove its case against the appellants beyond reasonable doubt and the findings of guilt rendered by the learned Courts below against the appellants are not based on correct appreciation of evidence available on record.
23. We have already acquitted Adnan respondent from the charges levelled against him, thus no question arises for enhancement of his sentence and compensation, therefore, as a necessary corollary, Criminal Revision No. 47602 of 2017 filed by Moazzam Shahzad complainant being devoid of any merit is hereby dismissed.
24. While adverting to Criminal Appeal No. 47599 of 2017, it has already been observed in detail the grounds which strongly reflect the absence of eye-witnesses at the crime scene and have disbelieved them. In the given circumstances, we do not see any reason to interfere with the finding of acquittal passed by learned trial Court
which otherwise on a scrutiny is found to be well reasoned. Even otherwise, it is well settled proposition of law that when a Court of competent jurisdiction passes the judgment of acquittal on the basis of cogent grounds, the same is not to be disturbed in a mechanical manner. In order to set-aside the judgment of acquittal, it is to be proved that the judgment of acquittal is arbitrary, fanciful, perverse and contrary to record. An accused person on the judgment of acquittal acquires a verdict of innocence, hence it is to be disturbed in exceptional and extraordinary circumstances. In this regard, reliance can be placed on the cases of "Iftikhar Hussain and others v. The State" (2004 SCMR 1185) and "Haji Amanullah v. Munir Ahmad and others" (2010 SCMR 222). In the instant case learned counsel for the appellant has failed to point out any illegality, perversity or any other material which is contrary to the record qua the acquittal of the respondent, thus, the instant appeal merits no acceptance and the same is accordingly dismissed.
(Y.A.) Appeal accepted
0 Comments