Bail---Delay of 5 days--Recovery of crime empties--No use for prosecution--Validity--From ocular account it is clear that neither they were present at place of occurrence nor they have described locale of injury properly nor they deposed in line with prosecution story, so from their deposition it is clear that police was present on first day of occurrence at place of occurrence--

 PLJ 2022 Cr.C. 459

Pakistan Penal Code, 1860 (XLV of 1860)--

----S. 324--Sentence--Reduced from four years to three years imprisonment--Ocular account--Delay of 5 days--Recovery of crime empties--No use for prosecution--Validity--From ocular account it is clear that neither they were present at place of occurrence nor they have described locale of injury properly nor they deposed in line with prosecution story, so from their deposition it is clear that police was present on first day of occurrence at place of occurrence--When no crime empty was recovered nor it was wedded with any such crime empty, even otherwise investigating officer has observed that infact Muhammad Nawaz was armed with pistol 30-bore at time of occurrence--During investigation he has not collected any blood-stained earth, blood-stained clothes or any other incriminating material--He admitted that he did not sent pistol to Punjab Forensic Science Agency in order to get functionality test so as to prove that it was an effective weapon--There are many doubts in prosecution case--Overall situation and facts reflects that case of prosecution does not have much credence and was not proved upon standard required as beyond reasonable doubt, therefore, benefit of doubt is extended to petitioner; as such, this criminal revision is allowed, conviction and sentence awarded to petitioner by both lower Courts are set aside, he is acquitted of charges levelled against him--Petitioner is on bail.                                                  [Pp. 462 & 463] A, B, C & D

Mr. Ali Afzal Sahi, Advocate for Petitioners.

Miss Noshe Malik, Deputy Prosecutor General for State.

M/s. Aftab Hussain Bhatti and Mian Asim Naeem Sabir, Advocates for Complainant/Respondent No. 2.

Date of hearing: 15.12.2021.

 PLJ 2022 Cr.C. 459
[Lahore High Court, Lahore]
Present: Muhammad Amjad Rafiq, J
MUHAMMAD AHMAD and another--Petitioners
versus
STATE etc.--Respondents
Crl. Rev. No. 164964 of 2018 and Crl. A. No. 1220 of 2016,
heard on 15.12.2021.

Judgment

Muhammad Ahmad, petitioner was indicted on the charge of causing fire-arm injury with pistol 30-bore which hit on the left shin of Muhammad Nawaz. He was prosecuted in case FIR No. 203, dated 03.07.2012 registered under Section 324, PPC at Police Station Saddar Samundari District Faisalabad and vide judgment dated 27.04.2016 passed by learned Magistrate 1st Class, Faisalabad he was convicted and sentenced as under:

1.       Simple imprisonment for four years under Section 324, PPC with fine of Rs.10,000/-, in default thereof to further undergo one week simple imprisonment.

2.       Sentenced to pay Daman Rs.25,000/-. He shall remain in jail till payment of total Daman.

Benefit of Section 382-B Cr.P.C. was extended to him.

The petitioner challenged his conviction and sentence through a criminal appeal and vide judgment dated 03.02.2018 his sentence was reduced from four years simple imprisonment to three years simple imprisonment in offence under Section 324, PPC.

2. The complainant has filed Criminal Appeal No. 1220 of 2016 against acquittal of Respondents No. 1 & 2 which is to be decided through this common judgment.

3. The episode of crime was narrated by Munawar Saeed, complainant (PW-1) that his cousin Muhammad Nawaz after offering Asar prayer at about 05:00 p.m. on 28.06.2012 was returning to his home when he reached at the Chowk of village three accused persons Muhammad Ahmed, Hafeez and Musawar Tanveer halted him. Hafeez hit pistol butt on his forehead, Musawar Tanveer hit pistol butt which landed on his head. In the meantime, Atif and Mubashar witnesses reached at the spot and tried to intervene, yet Muhammad Ahmed, petitioner made a straight fire upon Muhammad Nawaz who at that time was lying on the ground which hit on the left shin of the injured. On information of occurrence, he reached to the place of occurrence, took Muhammad Nawaz to the police station, obtaining docket he went for medical examination and after obtaining medico-legal certificate he approached to the police for registration of FIR. FIR was registered after five days of the occurrence on 03.07.2012. Motive as alleged in the FIR was an altercation between accused persons and Muhammad Nawaz some days prior to the occurrence.

4. After registration of FIR police inspected the site but did not collect anything, however, prepared site plan and later arrested accused persons and on 30.08.2012 a pistol was recovered on the lead of present petitioner; no crime empties were secured from the place of occurrence. All the accused persons were put to trial, they were charge sheeted, which they denied, prosecution led the evidence and produced complainant Munawar Saeed as (PW-1), Muhammad Nawaz, injured as (PW-2), Muhammad Atif eye-witness as (PW-3), Muhammad Farooq, recovery witness as (PW-4), Muhammad Azeem, witness of registration of FIR (PW-5), Dr. Noor Muhammad who conducted medical examination of injured as (PW-6), Riaz Ahmed ASI who received application from the complainant for registration of FIR as (PW-7) and Muhammad Afzaal ASI, who conducted investigation as (PW-8) and closed the prosecution evidence. Accused were examined under Section 342 Cr.P.C. wherein they have controverted the allegations and claimed their false implication due to previous enmity and political party friction in the village. After conclusion of trial, learned trial Court has acquitted Hafeez and Musawar Tanveer accused persons, however, convicted Muhammad Ahmed petitioner as stated above.

5. Heard. Record perused.

6. Ocular account produced with the help of three witnesses stands minus when injured PW states that complainant has not seen the occurrence, rather reached later; statement of PW-1 is of no worth for the prosecution with respect to ocular account even otherwise in FIR complainant has also mentioned that on receiving information he reached at the place of occurrence. Yet complainant could not justify delay in registration of FIR that was of five days, he though attempted to clarify that he remained busy in treatment of Muhammad Nawaz, therefore, could not approach to the police well in time which delay infact has an adverse impact on the prosecution because investigating officer has recovered nothing from the place of occurrence after five days. Muhammad Nawaz, injured (PW-2) is the star witness of the case who stated that all three accused have caused injuries on his person yet his statement has not been accepted in toto by the learned trial Court because on said statement two of the accused have stood acquitted. PW-2 stated that he is an employee of jail police, though admitted that when the occurrence took place his place of posting was Central Jail, Faisalabad and he was on leave for three days but no proof of his leave was brought on record, neither the jail employees appeared nor any letter was issued in this respect in favour of Muhammad Nawaz injured for the fact of his leave. He admitted that when site plan was prepared, he was not present at the place of occurrence. He admitted during cross examination that Munawar Saeed had not viewed the occurrence by his own eyes. He though deposed that Muhammad Atif, Mubashar Hussain, Muhammad Anwar and Iftikhar etc. reached at the place of occurrence but simultaneously admitted that he fell unconscious. He admitted that he got recorded his statement on 03.07.2012 which was after five days of the occurrence, though he was medically examined through the police and another interesting factor he deposed that his statement was recorded by the police at the place of occurrence. He stated twice that fire hit on the leg under the ankle; however, there was no fracture. He did not state that at what time his statement was recorded by the police at the place of occurrence. Muhammad Atif (PW-3) has also stated during cross examination that the fire hit on the left leg under the ankle. He admitted that police just after the occurrence reached at the spot which fact runs counter to the statement of complainant (PW-1) who informed the police after five days. He admitted that on the day of occurrence police has not recorded his statement. Had the police present on the day of occurrence, the FIR could have been registered and police had also inspected the site and place of occurrence for the purpose of ascertaining the fact of firing and availability of crime empties if any but this is not the case. From the ocular account it is clear that neither they were present at the place of occurrence nor they have described the locale of injury properly nor they deposed in line with the prosecution story, so from their deposition it is clear that police was present on the first day of occurrence at the place of occurrence.

7. Dr. Noor Muhammad when appeared as PW-6 deposed that he observed four injuries on the person of injured, though there were three injuries in the FIR. During cross examination he admitted that probably fire was hit from 1 to 4 feet yet he did not observe any blackening and burning. This expression is totally alien to medical jurisprudence. He further deposed that he does not have any knowledge about the fabricated injuries. He infact did not clarify prosecution case on the medical side clearly and even observed injury on the left leg below the knee joint whereas all the PWs have stated that fire was hit below the ankle, so there is a contradiction in ocular and medical account.

8. Recovery is of no use for the prosecution when no crime empty was recovered nor it was wedded with any such crime empty, even otherwise investigating officer has observed that infact Muhammad Nawaz was armed with pistol 30-bore at the time of occurrence. He further observed that at the place of occurrence no such signs were present from which it could be inferred that occurrence took place at the site. He prepared rough site plan yet rough site plan does not show the separate presence of accused and the injured. During investigation he has not collected any blood-stained earth, blood-stained clothes or any other incriminating material. He admitted that he did not sent the pistol to Punjab Forensic Science Agency in order to get functionality test so as to prove that it was an effective weapon. There are many doubts in prosecution case. The learned trial Court has not properly appreciated the evidence on the record whereas learned appellate Court has committed illegality while upholding the judgment of learned trial Court.

9. Overall situation and the facts reflects that the case of the prosecution does not have much credence and was not proved upon standard required as beyond reasonable doubt, therefore, benefit of doubt is extended to the petitioner; as such, this criminal revision is allowed, conviction and sentence awarded to the petitioner by both the lower Courts are set aside, he is acquitted of the charges levelled against him. The petitioner is on bail. His surety is discharged from the liability. Record of the learned trial Court be sent back immediately, whereas the case property, if any, be disposed of in accordance with law.

10. For the reasons recorded hereinabove, Criminal Appeal No. 1220 of 2016 against acquittal of Respondents No. 1 & 2 is without any merit, the same stands dismissed in limine.

(R.A.)  Petitioner is on bail