PLJ 2022 Cr.C. 710
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(c)--Conviction and sentence--Challenge to--Complainant while appearing as a witness did not state that his version was not correctly recorded in application and complainant also did not offer any explanation regarding improvements made by him--In complaint complainant got written that he along with deceased was coming on metaled road, whereas, while appearing before trial Court as PW5 he made dishonest improvement--While appearing as PW5 complainant introduced totally a new fact--Analysis makes presence of eye-witnesses at crime scene doubtful, as concluded by trial Court--Medical evidence or recovery of firearm from appellant lends little support or corroboration, to case of prosecution--According to plea taken by appellant, he acted in self defence in order to save his own life from hands of deceased as evident from above reproduced statement of appellant, but at same time, he claimed innocence and pleaded acquittal on account of false implication--If prosecution evidence is disbelieved by Court in its entirety, defence version is to be accepted or rejected as a
whole--In case of doubt, benefit thereof must accrue in favour of accused as matter of right and not of grace--Appeal accepted.
[Pp. 714, 715, 716, 717 & 719] A, B, C, D, E & F
Mr. Muhammad Ramzan, Advocate for Appellant.
Mr. M. Mooen Ali, Deputy Prosecutor General for State.
Mr. Mudassar Naveed Chattha, Advocate for Complainant.
Date of hearing: 15.12.2021.
PLJ 2022 Cr.C. 710
[Lahore High Court, Lahore]
GHULAM DASTGEER--Appellant
versus
STATE and another--Respondents
Crl. A. No. 2323 of 2015, decided on 15.12.2021.
Judgment
Ghulam Dastgeer (appellant) was tried in case FIR No. 181/2012 dated 07.05.2012 in respect of offences under Sections 302, 34, PPCregistered at Police Station Lundianwala,
Ghulam Dastgeer
Under Section 302(c) PPC
14 years rigorous imprisonment.
The appellant was not liable to pay compensation u/S. 544-A, Cr.P.C. as he was not held aggressor and he acted in self defence.
Benefit of Section 382-B, Cr.P.C. was also extended to him.
The appellant has filed the titled appeal against his conviction and sentence.
2. The concise realities of the case, as described by Sana Ullah complainant (PW5) in wrongdoing report are that on 07.05.2012 at about 04.30 p.m. he along with his brother Aman Ullah were coming back from the house of his brother namely Habib Ullah Khan, when they reached in front of the shop of the accused persons, all the accused persons were already present over there with firearm weapons. Muhammad Hanif Khan co-accused (since acquitted) chanted lalkara that Aman Ullah be taught a lesson for abduction of his daughter and murder him, on which, Abdul Latif Khan co-accused (since acquitted) made a fire shot with his pistol .30 bore which landed on right ear of Aman Ullah (deceased). Upon receipt of the injury Aman Ullah (deceased) fell down. The complainant raised hue and cry, in the meantime, Ghulam Dastgeer appellant and Abdul Lateef Khan along with Asad Ullah Khan co-accused (since acquitted) reached near the brother of the complainant. Asad Ullah Khan co-accused (since acquitted) made two fire shots on Aman Ullah who was laying on the ground with repeater 12 bore which landed on his mouth and right cheek. Ghulam Dastgeer appellant made one fire shot with 12 bore gun which hit on the cheek, right ear and eye. Abdul Lateef Khan co-accused (since acquitted) made fire with pistol which landed on chest. The occurrence was witnessed by Ghulam Abbas Khan (PW7), Asad Ullah Khan and other people of the village.
3. After completion of investigation, result of the investigation was encapsulated in report under Section 173, Code of Criminal Procedure, 1898 which was submitted before the learned trial Court. The appellant and his acquitted co-accused were summoned by the learned Additional Sessions Judge,
In order to prove its case, the prosecution produced as many as 12 witnesses during the trial. Sana Ullah Khan, complainant (PW-5) and Ghulam Abbas (PW-7) have furnished the ocular account. Muhammad Nawaz, draftsman appeared as PW-6, who prepared scaled site plan of the place of occurrence as (Ex.PC). Mian Khan 4443/C (PW-8) was the witness of recovery of 12 bore repeater (P-3) recovered by the police on the disclosure of Ghulam Dastgeer appellant, vide recovery memo. (Ex.PG). Allah Ditta, SI (PW-12) being investigating officer stated about the various steps taken by him during investigation of the case.
The medical evidence was furnished by Doctor Yasir Majeed (PW-9), who conducted autopsy on the dead body of the deceased Aman Ullah and issued the post mortem report (Ex.PH) along with pictorial diagram Exh. PH/1 and Exh. PH/2.
The remaining witnesses produced by the prosecution before learned trial Court were formal in nature.
At the conclusion of the prosecution evidence, statement of the appellant under Section 342 Code of Criminal Procedure, 1898 along with co-accused were recorded, wherein they refuted all the prosecution allegations levelled against them and professed their innocence. The appellant neither opted to appear as their own witnesses in disproof of the prosecution allegations as provided under Section 340(2) Code of Criminal Procedure, 1898 nor they produced any defence evidence. However, after conclusion of the trial, the learned trial Court convicted and sentenced the appellant, as mentioned and detailed above. Hence, the supra mentioned appeal.
4. Learned counsel for the appellant, in support of this appeal, contends that the prosecution has miserably failed to prove its case beyond any shadow of doubt; that the learned trial Court already disbelieved the ocular account produced by the prosecution; that Ghulam Dastgeer appellant made firing on Aman Ullah deceased while exercising his right of self-defence as Aman Ullah deceased launched an attack by firing with his pistol; that the deceased was a hardened, desperate and notorious criminal and so many FIRs in this regard were on his credit; that during the trial the prosecution has not produced Asghar Ali who was the natural witness, therefore, the prosecution has withheld best evidence; that the prosecution has failed to prove the motive part of the occurrence and lastly argued that non-matching of crime empty completely destroyed the prosecution case, therefore, this appeal may be accepted and the appellant be acquitted of the charge.
5. On the other hand, learned Deputy Prosecutor General assisted by learned counsel for the complainant has opposed the appeal on the grounds that the appellant is well nominated in the FIR with specific role of causing injuries on the body of Aman Ullah (deceased); that the learned trial Court wrongly disbelieved the ocular account; that the role assigned to the appellant by the eye-witnesses is sufficiently supported by medical evidence and prosecution case is further corroborated by the recovery of pistol effected during the investigation of the case; that the prosecution witnesses are consistent on each and every material point; that there was no previous ill-will or enmity between the parties, so possibility of false implication of the appellant in this case is ruled out; that the prosecution has proved its case against the appellant beyond any reasonable doubt, thus, the appeal filed by the appellant may be dismissed.
6. I have heard the learned counsel for the parties and have examined the record with their able assistance. The learned trial Court disbelieved the presence of the eye-witnesses, the complainant, Sana Ullah Khan (PW-5) and Ghulam Abbas (PW-7) at the site of the occurrence after a careful appraisal of their testimony, supported by cogent reasons. Additionally, I find that according to the prosecution the complainant (PW-5) while appearing before the learned trial Court in the witness box stated almost the same story already narrated in paragraph No. 2 of this judgment, hence, no need to reiterate the same. I have further noted that the complainant Sana Ullah (PW-5) happened to be a real brother of Aman Ullah (deceased) and FIR Ex. PA/2 was lodged on his application Exh. PA, the stance of the complainant described in his application Exh. PA is totally different to the stance taken by him while appearing before the learned trial Court 
8. At this stage, I would also weigh the contention of learned counsel for the complainant that when according to defence plea, only the appellant had murdered the deceased in self-defence, the weakness of prosecution’s case becomes irrelevant. In support of his contention, learned counsel has referred to the mode of cross-examination on the prosecution witnesses. The statement made under Section 342, Cr.P.C. is reproduced below, for ready reference:
“Statement of appellant Ghulam Dastgeer Khan s/o Muhammad Hanif, caste Pathan, aged about 31 years, resident of Chak NO. 569/GB, Tehsil Jaranwala, District Faisalabad u/S. 342, Cr.P.C. without oath.
………………………………………………………
Q.8 Why this case against you and why PWs have deposed against you?
Ans. The case is false and PWs have deposed falsely being related inter se and to support false prosecution version. The deceased was a man of bad character and had long history of criminal cases and was a desperate and dangerous person whereas I an my co-accused are peaceful citizens and are labourer by profession. We had established a shop for repairing fridges etc. adjacent to our house. The deceased Aman Ullah abducted my sister Mst. Rukhsana about three months prior to the occurrence, who was returned through Panchayat. The deceased after
return of my sister used to threaten us for dire consequences and used to make firing near our house to harass us and also threatened us if we got married out sister to anyone we would be done to death. We got married our sister Rukhsana with one Habib Ullah prior to this occurrence and due to the said marriage Aman Ullah deceased bore grudge. On the day of occurrence, deceased Amanullah came in front of our house and made firing with his pistol, which hit on the fridge and wall of our shop. On hearing the reports of firing, I came out from my house with repeater. The deceased Aman Ullah made firing with his pistol upon me but I luckily escaped. I while exercising my right of self defence made cross firing upon the deceased with which he sustained injuries. My father and my brothers co-accused were not present at the spot at the time of occurrence. After the occurrence, one Aziz Alam son of Abdul Ghani took the pistol of Aman Ullah deceased from the spot, which was handed over to the complainant and during investigation, the I.O. was demanding the said pistol from the complainant but he did not produce the same to the I.O.
The deceased was a dangerous and desperate criminal having a long history of crimes and I produce 20 attested copies of the FIRs registered against deceased Aman Ullah at Police Station Lundianwala, which are FIR No. 521/2001 u/Ss. 324/34, PPC Mark-A, FIR No. 46/2006 u/Ss. 395/412, PPC Mark-B, FIR No. 40/2006 u/Ss. 395/412, PPC Mark-C, FIR
No. 387/2006 u/Ss. 380/411, PPC Mark-D, FIR No. 386/2006
u/Ss. 379/411, PPC Mark-E, FIR No. 372/2006 u/S. 380, PPC Mark-F, FIR No. 370/2006 u/S. 379, PPC Mark-G, FIR No. 368/2006 u/S. 380, PPC Mark-H, FIR No. 362/2006 u/Ss. 379/411, PPC Mark-I, FIR No. 353/2006 u/Ss. 380/411, PPC Mark-J, FI No. 313/2006 u/S. 13/20/65 Arms Ordinance
Mark-K, FIR No. 418/2006 u/Ss. 379/411, PPC Mark-L, FIR No. 419/2006 u/Ss. 379/411, PPC Mark-M, FIR No. 420/2006 u/Ss. 380/411, PPC Mark-N, FIR No. 458/2006 u/Ss. 399/402, PPC Mark-O, FIR No. 580/2001 u/Ss. 7/21/91 Surrender of Illicit Arms Act Mark-P, FIR No. 459/2006 u/S. 13/20/65 and 11-B of Arms Ordinance Mark-Q, FIR No. 390/2010 u/S. 457/380/411, PPCMark-R, FIR No. 396/2010 u/Ss. 457/380/411, PPC Mark-S and FIR No. 01/2002 u/S. 7/21/91 Surrender of Illicit Arms Act Mark-T. Besides above said FIR the deceased was also involved in so many heinous offences and cases were registered against him whereas I and my co-accused having no criminal record and are poor law abiding citizens."
(emphasis supplied)
In this regard, I have been further fortified by a landmark pronouncement of the Hon’ble Supreme Court of Pakistan in the case reported as ‘Ashiq Hussain v. The State’ (PLD 1994 SC 879), wherein, at page 883, the learned Apex Court of the country has been pleased to observe as under:
“The proper and legal way of dealing with a criminal case is that the Court should first discuss the prosecution case/evidence in order to come to an independent finding with regard to the reliability of the prosecution witnesses, particularly the eye-witnesses and the probability of the story told by them, and then examine the statement of the accused under Section 342, Cr.P.C., statement under Section 340(2), Cr.P.C. and the defence evidence. If the Court disbelieves/rejects/excludes from consideration the prosecution evidence, then the Court must accept the statement of the accused as a whole without scrutiny. If the statement under Section 342, Cr.P.C. is exculpatory, then he must be acquitted. If the statement under Section 342, Cr.P.C. believed as a whole, constitutes some offence punishable under the Code/law, then the accused should be convicted for that offence only. In case of counter versions, if the Court believes prosecution evidence and is not prepared to exclude the same from consideration, it will not straightaway convict the accused but will review the entire evidence including the circumstances appearing the case at close before reaching at a conclusion regarding the truth or falsity of the defence plea/version. All the factors favouring belief in the accusation must be placed in juxtaposition to the corresponding factors favouring the plea in defence and the total effect should be estimated in relation to the question, viz is the plea/version raised by the accused satisfactorily established by the evidence and circumstances appearing in the case? If the answer be in the affirmative, then the Court must accept the plea of the accused and act accordingly. If the answer to the question be in the negative, then the Court will not reject the defence plea as being false but will go a step further to find out whether or not there is yet a reasonable possibility of defence plea/version being true. If the Court finds that although the accused has failed to establish his plea/version to the satisfaction of the Court but his plea might reasonably be true, even then the Court must accept his plea and acquit or convict him accordingly.”
Similar view was taken by the Hon’ble Supreme Court of Pakistan
in the case of ‘Amin Ali and another versus The State’ (2011 SCMR 323),
9. In view of the guidelines laid down in supra referred judgments, it was the primary duty of the prosecution to establish its own case independently instead of depending upon the weaknesses of defence, but in this case, the prosecution miserably failed to discharge its duty and did not produce sufficient incriminating evidence to connect the appellant with the commission of offence rather tried to get favourable decision from the Court only on the basis of inculpatory portion of defence plea. I am quite confident to hold that the defence plea can be accepted or rejected in toto and the practice of picking and choosing some sentences favouring the prosecution in isolation of those favouring the accused/appellant is strictly prohibited by the law. I have also fortified the above view from the case of “Muhammad Asghar vs. The State” (PLD 2008 SC 513), wherein it was held that the defence version is to be accepted or rejected as a whole and reliance should not be placed on that part of the statement which goes against accused. The legality of conviction awarded on the basis of admissions made by defence while conducting cross-examination on the prosecution witnesses and recording statement of the appellant under Section 342, Cr.P.C. can also be adjudged on the basis of principles laid down by the Apex Court in case of “Iftikhar Ahmed vs. The State and others” (2014 SCMR 7), wherein it was held as under:
“……….. However, we are constrained to observe that the law laid down by this Court qua the value of the statement of the accused under Section 342, Cr.P.C. when the prosecution has failed to prove its case beyond doubt escaped the notice of the learned trial Court. In Sultan Khan v. Sher Khan etc. (PLD 1991 SC 520), this Court at page 524 observed that "if the conviction of the accused is to be based solely on his statement in Court this statement should be taken into consideration in its entirety.”
"13 .... It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right”.
The Hon’ble Supreme Court of Pakistan in the case of Muhammad Mansha vs. The State (2018 SCMR 772) at Para No. 4, observed as under:
“4… Needles to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, “it is better than ten guilty persons be acquitted rather than one innocent person be convicted. Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muhammad Akram v. The State (2009 SCMR 230) and Muhammad Zaman v. The State (2014 SCMR 749)...”
Similar view was taken in the case of “Muhammad Imran vs. The State” (2020 SCMR 857). Relevant part of the said judgment at Para No. 5 reads as under:
“…… It is by now well settled that benefit of a single circumstance, deducible from the record, intriguing upon the integrity of prosecution case, is to be extended to the accused without reservation; the case is fraught with many. It would be unsafe to maintain the conviction….”
Reference can also be made to the cases reported as The State through P.G. Sindh and others vs. Ahmed Omar Sheikh and others (2021 SCMR 873), Mst. Asia Bibi vs. The State and others (PLD 2019 SC 64), Abdul Jabbar and another vs. The State (2019 SCMR 129), Naveed Asghar and two others vs. The State (PLD 2021 SC 600),
11. Resume of the above discussion is that the prosecution has failed to prove its case against Ghulam Dastgeer appellant beyond any shadow of doubt, therefore, I accept appeal filed by Ghulam Dastgeer appellant, set aside his conviction and sentence recorded by the learned trial Court and acquit him of the charge by extending him the benefit of doubt. The appellant is in jail, he be enfranchised trice if not required to be detained in any other criminal case.
(A.A.K.) Appeal accepted
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