PLJ 2022 Cr.C. 704 (DB)
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b) & 34--Conviction and sentence--Challenge to--Benefit of doubt--Qatl-e-amd--Despite claimed presence of both eye-witnesses, who were close relatives of deceased, they did not receive any scratch during occurrence at hands of accused who were 9-in number and statedly made indiscriminate firing rather they were at mercy of appellants and their Co-accused (since acquitted) at time of occurrence at place of occurrence blessing them with unbelievable Courtesy and mercy shown to them by appellants knowing well that they would depose against them by leaving them unhurt--Rough and scaled site plans of place of occurrence do no show houses of both eye-witnesses around place of occurrence who were chance witnesses but have failed to establish their presence at time of occurrence at place of occurrence with their stated reasons--Motive of occurrence was of previous litigation between parties which is double edged weapon in criminal case as it can cut both ways--Held: 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 prudent mind about guilt of accused, then he would be entitled to its benefit not as a matter of grace or concession, but as of right--Appeals allowed. [Pp. 708 & 709] A, B & C
M/s. Ghulam Rasool Bhatti, Zaman Maitla, Umer Hayat Bhatti and Muhammad Aamir Latif Sher Bhutta, Advocates for Appellants.
Mr. Shahid Hanif Jutt and Liaqat Ali Malik, Advocates for Complainant.
Rai Akhtar Hussain, DPG for State.
Date of hearing: 14.10.2021.
PLJ 2022 Cr.C. 704 (DB)
[Lahore High Court, Lahore]
ASIF @ LOOSI and others--Appellants
versus
STATE etc.--Respondents
Crl. A. Nos. 47502, 47505, 47614, 47746, Crl. Rev. No. 47745 of 2017 & M.R. No. 539 2017, heard on 14.10.2021.
Judgment
Sadaqat Ali Khan, J.--Appellants (Asif @ Loosi, Sajid Ali and Ramzan @ Janu) along with Muhammad Saleem, Mohammad Mohsin, Mst.Parveen Bibi, Muhammad Boota, Mushtaq @ Makkah, Shahid @ Papu, Ishfaq and Noman @ Nomi (accused since acquitted) have been tried by learned trial Court in case FIR No. 265 Dated 28.04.2014 under Sections 302/109/148/149, PPC, P.S Sharaqpur Sharif, District Sheikhupura and were convicted and sentenced vide judgment dated 09.06.2017 as under:
Asif @, Loosi and Sajid Ali (Appellants)
U/S. 302 (b)/34, P.P.C
Sentenced to DEATH as Tazir alongwith compensation
Rs. 300,000/-each u/S. 544-A, Cr.P.C., to be paid by them to the legal heirs of Ghulam Qadir (deceased) and in default thereof to further undergo 6-months S.I. each Compensation amount was ordered to be recovered as arrears of land revenue. Compensation was ordered to be recovered as arrears of land revenue.
Ramzan @ Jannu (Appellant)
U/S.302 (b) P.P.C.
Sentenced to imprisonment for life as Tazir along with compensation Rs. 300,000/-each u/S. 544-A, Cr.P.C. to be paid by him to the legal heirs of Ghulam Qadir (deceased) and in dcfaull thereof to further undergo 6-months S.I. Compensation amount was ordered to be recovered as arrears of land revenue.
Benefit of Section 382-B, Cr.P.C. was also given to the appellants
Appellants have filed three separate appeals against their convictions, complainant has filed Crl.Appeal against acquittal of accused and Crl. Rev. for enhancement of sentence of accused (Ramzan @ Janu) whereas learned trial Court has sent Murder Reference for confirmation of death sentences of Asif @ Loosi and Sajid Ali (appellants) or otherwise which are being decided through this single judgment.
2. The facts of the case have been stated by Ghulam Adil complainant (PW-2) in his statement before the learned trial Court, which is hereby reproduced for narration of the facts:
“On 28.4.2014 at about 10:00 AM I alongwith my father Ghulam Qadir was going towards our fields on motor cycle. Near the Haveli of Akbar, we saw Akbar. My father stopped the motor cycle and disembarked me from the motor cycle. My father said that he will return soon. He had gone few feet away when from the front Shahid alias Pappu armed with pistol, Mushtaq alias Makha armed with pistol, Saleem alias Saddi son of Arif armed with pistol, Ashfaq son of Gulab armed with pistol, Sajid son of Aslam armed with pistol, Ramzan alias Jhanoo son of Faqir Muhammad armed with repeater, Mohsin son of Ghulam Mahi-ud-Din armed with pistol, Asif alias Loosi armed with repeater, Noman alias Nomi son of Nazar Hussain armed with pistol came there Saleem alias Saadi accused raised Lalkara to teach a lesson to Ghulam Qadir for litigation. All the accused started indiscriminate firing on my father with the intention to kill him. My father received fire shots on the head, left shoulder, abdomen and back, who fell from motor cycle and died at the spot. Accused persons kept on firing and hurling abuses' till they made assure that my father had died. Thereafter accused persons fled away on motorcycles. Shaukat Ali PW and I had witnessed the occurrence.
Reason for occurrence was that Yousaf son of Ghulam Muhammad had lodged criminal case bearing FIR No. 626/08, U/S 302, PPC at P.S. Sharaqpur Sharif and my father was acquitted in the said case. Said case pursued by above mentioned accused persons due to enmity with us. Above mentioned accused had murdered my father on the abetment of Parveen Bibi, Boota and Yousaf.
Police collected crime empties comprising eleven used bullets of .30 bore pistol and five used cartridges. They were secured vide memo. Ex.P.B. Police also collected blood stained earth from place of occurrence, which was secured vide memo. Ex.P.C. Police further took in possession motor cycle of my father bearing registration No. LER/7341 vide memo. Ex.P.D. obtained our signatures and dead body was shifted for post mortem examination.
3. After hearing learned counsel for the parties as well as learned DPG, and on perusal of record with their able assistance, we have observed as under:
i. Ghulam Qadir was done to death on the passage on 28.04.2014 10:00 AM, FIR was lodged on the same day at 11/10.00 a.m. (28.04.2014) on the written application of his son Ghulam Adil (complainant PW2) against Asif @ Loosi, Sajid Ali, Ramzan @ Janu (appellants), Muhammad Saleem, Muhammad Mohsin, Mst. Parveen Bibi, Muhammad Boota, Mushtaq @ Makkah, Shahid @ Papu, Ishfaq, Noman @ Nomi (accused since acquitted) and Yousaf (accused since P.O.).
ii. Ghulam Adil (complainant PW-2) and his cousin Shaukat Ali (PW-3) claim themselves to be the eye-witnesses of the occurrence.
iii. Ghulam Adil (complainant PW-2) stated in his statement before the trial Court that at about 10.00 a.m. he along with his father Ghulam Qadir (deceased) was going towards their fields on motorcycle, near the Haveli of Akbar (not PW), also saw him, his father stopped motorcycle and disembarked him from the motorcycle saying that he will return soon, when he went few feet away, from the front side appellants along with co-accused (discussed above) armed with firearms emerged, there and started indiscriminate firing hitting on different parts of the body of his father (Ghulam Qadir deceased). Shaukat Ali PW3 has also reiterated the same story before the trial Court.
iv. Both these witnesses did not state in their statements before the trial Court that after the occurrence, who took away the dead body of Ghulam Qadir (deceased) from the place of occurrence either to the hospital for postmortem examination or to police station. It is also not mentioned in written application moved by Ghulam Adil (complainant PW2) for registration of the FIR. However, Ghulam Adil (complainant PW2) stated in his cross-examination that dead body was lifted from the spot at about 12/12.00 noon and was taken to police station, he had no knowledge how much time dead body remained lying in the police station, stated in his volunteer portion, Younis and Abdul Rasheed PWs went with dead body, he did not go with the dead body. After lifting of dead body from the spot, he left for his house (which is his unnatural conduct). Contrary to this it is mentioned in the endorsement of' police at the bottom of written application of the complainant moved for registration of FIR that he himself came at police station at 11.10 a.m. and presented written application for lodging of FIR. Above discussed circumstances suggest that FIR was lodged much later after bringing the dead body at police station with due consultation and deliberation involving the accused and preparing the eye-witnesses but the time 11/10.00 a.m. for lodging the FIR has wrongly been given to show it prompt one. Co-accused (Shahid @ Papu, Mushtaq @ Makkah, Muhamamd Saleem, Muhammad Mohsin, Ishfaq and Noman @ Nomi) were attributed indiscriminate joint firing along with appellants on the person of Ghulam Qadir (deceased) but during investigation it transpired that they did not make firing and have been acquitted by the trial Court through impugned judgment. Complainant has neither Challenged the findings of the I.O. nor filed any private complaint in this respect.
viii. Recoveries of pistol and repeater/shot gun on pointing out of Sajid Ali and Ramzan @ Janu (appellants) respectively in presence of negative report of PFSA are not only inconsequential rather draws adverse inference. Recovery of Motorcycle on pointing out of Ramzan @ Janu (appellant) is also not believable. Muhammad Shafique PW9 stated in his statement before the trial Court that on 10.06.2014 Asif @ Loosi (appellant) during interrogation disclosed and got recovered repeater .12-bore from his house. Rough site plan of place of recovery does not show the house of this witness around the place of recovery. I.O did not join any notable from the vicinity of the place of recovery to witness the recovery proceedings, hence this recovery is not believable. (2008 SCMR 1064 "Ghulam Akbar and another v. The State").
5. For the foregoing reasons, both appeals filed by the appellants are allowed, convictions and Sentences of appellants (Asif @ Loosi, Sajid Ali and Ramzan @ Janu) awarded by the learned Trial Court through impugned judgment are hereby set-aside and they are acquitted of the charges. Appellants (Asif @ Loosi, sajid Ali and Ramzan @ Janu) are directed to be released forthwith, if not required in any other case. Murder Reference is answered in-NEGATIVE and death sentences of appellant (Asif @Loosi and Sajid Ali) are NOT CONFIRMED.
6. In view of above decision, Crl.Appeal against acquittal of co-accused having no merits is dismissed as well as Crl. Rev. for enhancement of sentence of Ramzan @ Janu (appellant) having become infructuous is disposed of as such.
7. Before parting with this judgment, it is observed that co-accused (Yousuf) is P.O. his case shall be decided by the learned trial Court on its own merits without being influenced from this judgment on his arrest.
(A.A.K.) Appeals allowed
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