PLJ 2022 Cr.C. 279 (DB)
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302/364/34--Last seen evidence--Identification parade--Benefit of doubt--Acquittal of--No formal identification parade has been held for the identification of the appellants by this witness--Identification of the appellants in police custody at Police Station with complainant by this PW is not free from doubt rather it is an unsuccessful effort to crate illegal evidence against the appellants--Co-accused came there and made extra judicial confession regarding the present occurrence involving the appellants which evidence has been disbelieved to her extent and she has been acquitted, same evidence of alleged extra judicial confession is not believable to the extent of appellants--House of recovery belongs to appellant and it is also not mentioned in recovery memo that car was got recovered from the house of the appellant. Owner of the house has also not been produced--PW while claiming himself to be the eye-witness of the occurrence--Name of this witness as eye-witness has not been mentioned in the FIR. His conduct; after occurrence went back to his home without reporting the matter to anyone including police is un-natural and shatters his credibility--Got recovered 30-bore pistol from under construction house after digging soil from the Baithak of the house--Considering the peculiar circumstances of this case, above said recoveries are not believable--Considering the peculiar circumstances of this case, above said recoveries are not believable--Possibility of manufacturing of the crime empties before their dispatch to the concerned laboratory cannot be ruled out--Appeal allowed. [Pp. 282, 283 & 284] A, B, C, D, E, F & G
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302/364/34--Last seen evidence--Last seen evidence in absence of independent corroborative piece of evidence is not believable.
[P. 282] A
PLJ 2008 SC 687 ref.
Khawaja Qaisar Butt, Advocate for Appellants.
Mr. Muhammad Shahzad Mehdi, Advocate for Complainant.
Syed Nadeem Haider Rizvi, DDPP for State.
Date of hearing: 7.9.2021.
PLJ 2022 Cr.C. 279 (DB)
[Lahore High Court, Multan Bench]
Present: Sadaqat Ali Khan and Shehram Sarwar Ch., JJ.
MUHAMMAD TAYYAB and others--Appellants
versus
STATE and others--Respondents
Crl. A. Nos. 1037, 1035 & M.R. No. 144 of 2016, decided on 7.9.2021.
Judgment
Sadaqat Ali Khan, J.--Appellants (Muhammad Tayyab and Azhar) along with their co-accused i.e. Mst. Gulshad Bibi (since acquitted) have been tried by learned trial Court in case FIR No. 601 dated 01.09.2014 offences under Sections 302, 364, 34, PPC registered at Police Station City Lodhran, District Lodhran, and were convicted and sentenced vide judgement dated 23.09,2016 as under:-
Muhammad Tayyab (appellant)
u/S. 302(b), PPC Sentenced to DEATH as Tazir for committing Qatl-i-Amd of Naseer-ul-Din (deceased) with compensation of
Rs. 2,00,000/- payable to legal heirs of the deceased u/S. 544-A, Cr.P.C. which was ordered to be recovered as arrears of land revenue in default whereof to further undergo simple imprisonment for 6-months.
Azhar (appellant)
u/S. 302(b), PPC Sentenced to Imprisonment for life R.I, for committing Qatl-i-Amd of Naseer-ul-Din (deceased) with compensation of
Rs. 2,00,000/-payable to legal heirs of the deceased u/S. 544-A, Cr.P.C. which was ordered to be recovered as arrears of land revenue in default whereof to further undergo simple imprisonment for 6-months.
Benefit of Section 382-B, Cr.P.C. is also extended in his favour.
2. Appellants have filed these Criminal Appeals against their convictions and learned trial Court has sent Murder Reference for confirmation of death sentence of appellant (Muhammad Tayyab) or otherwise, which are being decided through this single judgment.
3. Brief facts of the case have been stated by the complainant Noor-ul-Hassan (PW-4) in his statement before the learned trial Court, which is hereby reproduced as under for narration of the facts:
"Stated that I am the resident of Lodhran City and I am cultivator by profession. My real brother Naseer-ul-Din who was employee of sui gas department Lodhran and was residing at Aziz Town Lodhran. On 31.08.2014 at about 5:30 pm my brother left his house in car bearing registration No. LED/5192 coloured white Mehran when my brother left his house at that time Pws Farzand Ali s/o Jamshaid Ali and Sajid Hussain s/o Ghulam Hussain were also present in his house. My brother/ deceased told them that he is going for an urgent work and will return 2/3 hours. When my deceased brother left his house he had Rs. 30,000/- cash in his pocket alongwith CNIC, mobile phone, containing SIM numbers 0300-6821635 and 0344-6821635. My brother did not return to his home for 2/3 hours I felt scared and called him on his mobile numbers but both the numbers were switched off. Thereafter, I alongwith Pws Qaiser Abbas my son and Ghulam Hussain my brother went for his search, searched him at difference places but could not trace him. We continued our search. On 01.09.2014 at about 8/9:00 am morning time I received information that dead body of my brother Naseer-ul-Din is lying at the land of Saeed Akhtar situated at Mouza 21/MPR. I alongwith Pws Qaiser Abbas my son, Ghulam Hussain my brother reached at the place of occurrence. I identified the dead body of my deceased brother Naseer-ul-Din who had received fire-arm injuries on his mouth, forehead and his chest; yet I was present at the place of occurrence Pws Ikhlaq Ahmad s/o Nawab Din Caste Bhati and Ghulam Yaseen and s/o Sobay Khan Caste Rajput R/O Lodhran also came there who told me that yesterday on 31.08.2014 at about 6:00 pm they saw Naseer-ul-Din my deceased brother alongwith three unknown persons in Mehran while color car at Ghouri Market near old Civil Hospital Lodhran. They also told that they could identify the said unknown accused person if they come before them. Cash
Rs. 30,000/- alongwith mobile phone containing two sims and CNIC of my deceased brother were also missing. The unknown accused persons murdered my brother after abducting him. I submitted application Exh.P-A to SHO P.S City Lodhran on 01.09.2014 for the purpose of registration of FIR which bears my signatures as Exh.P.A/1."
4. After hearing learned counsel for the parties as well as learned DDPP, and on perusal of record with their able assistance, we have observed as under:
i) On 31.08.2014 at 5:30 p.m. Naseer-ul-Din (deceased) left his house with his car Mehran white coloured bearing No. LED/5192 for his urgent work as told by him to complainant party, he was also having Rs. 30,000/-, original ID card and mobile phone, but did not return, his phone was off. During search, on 01.09.2014 his dead body was found lying in the field of Saeed Akhtar. Meanwhile, at the same place, Ikhlaq Ahmed (PW-2) and Ghulam Yaseen (given up PW) came there and told that they had seen the deceased on the preceding evening i.e. 31.08.2014 at about 6:00 p.m. in the company of unknown accused in a white coloured car at Ghouri Market near Civil Purana Hospital, Lodhran whereafter FIR was got lodged by his brother Ch. Noor-ul-Hassan (complainant/PW-4) by moving written application against unknown accused.
5. In view of the above discussion, we entertain serious doubt in our minds regarding participation of the appellants in the present case. It is settled principle of law that for giving benefit of doubt, it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in the prudent mind about the guilt of the accused, then he would be entitled to its benefit not as a matter of grace or concession, but as of right.
6. For the foregoing reasons, these appeals are allowed, convictions and sentences of the appellants (Muhammad Tayyab and Azhar), awarded by learned trial Court through impugned judgment are hereby set-aside and they are acquitted of the charges. Appellant (Azhar) is present on bail, his surety stands discharged. Appellant (Muhammad Tayyab) is directed to be released forthwith, if not required in any other case. Murder Reference is answered in NEGATIVE and death sentence of Muhammad Tayyab (appellant) is NOT CONFIRMED.
7. Before parting with this judgment, it is observed that case of Sahib Yar (since PO) shall be decided by the learned trial Court on its merits without being influenced from this judgment on his arrest.
(M.A.B.) Appeals allowed
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