PLJ 2022 Cr.C. (Note) 48
----Ss. 302(b)/34--Conviction and sentence--Challenge to--Qatl-e-amd--Proverbial ‘Lalkara’--Absconder--Compromise--No motive was alleged against appellant--It is noteworthy that for single deceased of this case, complainant has implicated as many as three accused persons in this case--As per prosecution case, it was (co-accused since acquitted) who made two fire shots which landed on right side of testicles and on right thigh of deceased whereas fire shot made by co-accused since acquitted) landed on left knee of deceased--Appellant has only been attributed role of making aerial firing and raising proverbial ‘Lalkara’ at time of occurrence--As per prosecution’s own case, appellant raised proverbial ‘Lalkara’ when occurrence had already been committed by accused and co-accused since acquitted--It is not alleged by prosecution witnesses that after raising of ‘Lalkara’ or on instigation of appellant, co-accused committed occurrence rather occurrence was committed by above mentioned co-accused prior to raising of 'Lalkara' by appellant--Allegation of making aerial firing at time of occurrence leveled against appellant has also not been supported by recovery of any empty from spot--Insofar as recovery of pistol from possession of appellant is concerned, that there is no report of Punjab Forensic Science Agency, Lahore to establish that any empty recovered from spot matched with said pistol and as such, said recovery is inconsequential--As per prosecution’s own case, fire-arm injuries were inflicted on body of deceased by accused and co-accused but complainant party/legal heirs of deceased have already effected compromise with said co-accused and they have been acquitted by High Court respectively on basis of compromised--Prosecution could not prove its case against appellant beyond shadow of doubt--Appeal accepted. [Para 11 & 13] A, B, C & E
2011 SCMR 646, 2009 SCMR 803, 2017 SCMR 144,
PLD 2009 SC 53, PLD 2008 SC 298.
Absconder--
----It is true that appellant remained absconder in this case but it is by now well settled that in absence of other reliable and convincing evidence, his conviction cannot be maintained merely on basis of abscondence. [Para 11] D
2010 SCMR 566.
Mr. Nasir Mahboob Tiwana, Advocate for Appellant.
Ch. Muhammad Ishaq, Additional Prosecutor General with Qaisar Elahi, Inspector/SHO for State.
Date of hearing: 9.12.2020.
PLJ 2022 Cr.C. (Note) 48
[Lahore High Court, Lahore]
Present: Malik Shahzad Ahmad Khan, J.
FAISAL and another--Appellants
versus
STATE--Respondent
Crl. A. No. 224-J of 2009, decided on 9.12.2020.
Judgment
This judgment shall dispose of Criminal Appeal No. 224-J of 2009, filed by Asif (appellant) against his conviction and sentence awarded to him by the learned Additional Sessions Judge, Bhalwal through impugned judgment dated 17.06.2009.
2. Asif (appellant) along with two other co-accused, namely, Faisal (co-accused since acquitted) and Sajjad Hussain (co-accused since acquitted) was tried in case F.I.R. No. 422 dated 20.10.2003, registered at Police Station Bhalwal District Sargodha in respect of offences under Sections 302/34, PPC. After conclusion of the trial, the learned trial Court vide its judgment dated 17.06.2009, has convicted and sentenced the appellant as under:
Under Section 302(b)/34PPC to imprisonment for life. The appellant was also directed to pay an amount of Rs. 50,000/- (Rupees Fifty Thousand only), as compensation to the legal heirs of Muhammad Anwar (deceased) under Section 544-A, Cr.P.C. and in case of default to further undergo six months simple imprisonment.
Benefit of Section 382-B, Cr.P.C. was also extended to the appellant.
3. Brief facts of the case as given by the complainant Muhammad Younas (PW-8) in the FIR (Ex.PQ) are that on 20.10.2003, he was going back to his Chak. At about 9:00 P.M., the complainant went to Muhammad Anwar (deceased) in
Motive of the case was that prior to the occurrence, a case FIR No. 377/2001 under Section 377, PPC was registered against Sajjad Hussain (co-accused since acquitted). The complainant and Muhammad Anwar (deceased) had been pursuing the above mentioned case due to which, the accused persons committed the murder of Muhammad Anwar (deceased).
4. The appellant was arrested in this case by the police and after completion of investigation the challan was prepared and submitted before the learned trial Court. The learned trial Court, after observing legal formalities, as provided under the Code of Criminal Procedure, 1898 framed charge against the appellant and his
co- accused on 20.02.2008 to which they pleaded not guilty and claimed trial. In order to prove its case the prosecution produced fourteen witnesses. Muhammad Akram and Ahmad Khan, PWs were given up being unnecessary. Prosecution also produced documentary evidence in the shape of Ex.PA to Ex.PQ during the trial. The statements of the appellant and his co-accused under Section 342, Cr.P.C. were recorded, wherein they refuted the allegations levelled against them and professed their innocence.
5. The learned trial Court vide the impugned judgment dated 17.06.2009, found the appellant guilty, convicted and sentenced him as mentioned and detailed above.
6. Muhammad Younas (complainant) has statedly been murdered and this fact has been confirmed by Qaiser Elahi, Insepctor/SHO, Police Station Saddar Bhalwal District Sargodha present before the Court today. The younger brother of the complainant, namely, Muhammad Amjad and son of Muhammad Anwar, deceased of this case, namely, Qurban Ali are present before the Court. They are duly identified by Qaiser Elahi, Inspector/SHO. They both state that due to financial constraints they are not in a position to hire the services of a private counsel in this case and will be satisfied with the arguments of learned Additional Prosecutor General for the State. Even otherwise, it is a State case and the learned Additional Prosecutor General for the State is ready to argue the case, therefore, I proceed to decide the instant appeal after hearing the arguments of learned counsel for the complainant, learned Additional Prosecutor General for the State and perusal of the record.
7. It is contended by learned counsel for the appellant that the appellant is absolutely innocent and he has wrongly been convicted and sentenced by the learned trial Court; that there are material contradictions in the statements of the prosecution witnesses which have not been properly appreciated by the learned trial Court; that the appellant has not been assigned any role of causing injury on the body of Muhammad Anwar (deceased) whereas Sajjad Hussain and Faisal, co-accused who were attributed the role of causing injuries on the body of Muhammad Anwar (deceased) have already been acquitted by this Court on the basis of compromise effected with the legal heirs of the deceased because the complainant party received money from them but the appellant is behind the bars from the last 13-years because he could not fulfill illegal demands of the complainant party; that no motive was alleged against the appellant; that no empty was recovered from the spot to support the allegation of aerial firing leveled against the appellant; that in absence of any report of Punjab Forensic Science Agency, Lahore, the alleged recovery of pistol (P-4) is of no avail to the prosecution; that the prosecution miserably failed to prove its case against the appellant beyond the shadow of doubt, therefore, this appeal may be accepted and the appellant may be acquitted from the charge.
8. On the other hand, it is argued by the learned Additional Prosecutor General for the State that the prosecution has proved its case against the appellant beyond the shadow of any doubt, therefore, he was rightly convicted and sentenced by the learned trial Court; that the prosecution eye-witnesses were cross-examined at length but their evidence could not be shaken; that the prosecution case against the appellant has been corroborated by the recovery of pistol (P-4) from the possession of the appellant; that the appellant remained absconder in this case for a period four years which further corroborates the prosecution case against the appellant; that there is no substance in this appeal, therefore, the same may be dismissed.
9. Arguments heard and record perused.
10. The detail of the prosecution case as set forth in the FIR (Ex.PQ) has already been given in Paragraph No. 3 of this judgment, therefore, there is no need to repeat the same.
11. It is noteworthy that for the single deceased of this case, the complainant has implicated as many as three accused persons in this case. It is further noteworthy that as per prosecution case, it was Sajjad Hussain (co-accused since acquitted) who made two fire shots which landed on the right side of testicles and on the right thigh of Muhammad Anwar (deceased) whereas the fire shot made by Faisal (co-accused since acquitted) landed on the left knee of the deceased. There is no allegation against the appellant that his fire shots caused any injury on the body of the deceased. The appellant has only been attributed the role of making aerial firing and raising proverbial ‘Lalkara’ at the time of occurrence. As per prosecution’s own case, the appellant raised proverbial ‘Lalkara’ when the occurrence had already been committed by Sajjad Hussain and Faisal (co-accused since acquitted). It is not alleged by the prosecution witnesses that after raising of ‘Lalkara’ or on the instigation of the appellant, the
co-accused committed the occurrence rather the occurrence was committed by the above mentioned co-accused prior to raising of 'Lalkara’ by the appellant. The allegation of making aerial firing at the time of occurrence leveled against the appellant has also not been supported by the recovery of any empty from the spot. Insofar as the recovery of pistol (P-4) from the possession of the appellant is concerned, I have noted that there is no report of the Punjab Forensic Science Agency,
12. The learned High Court gave importance to the abscondence of the appellant. No doubt it is a relevant fact but it can be used as a corroborative piece of evidence, which cannot be read in isolation but it has to be read along with substantive piece of evidence. This Court in the case of Asadullah v. Muhammad Ali PLD 1971 SC 541 observed that both corroborative and ocular evidence are to be read together and not in isolation. As regards abscondence this Court in the case of Rasool Muhammad v. Asal Muhammad 1995 SCMR 1373 observed that abscondence is only a suspicion circumstance. In the case of Muhammad Sadiq v. Najeeb Ali 1995 SCMR 1632 this Court observed that abscondence itself has no value in the absence of any other evidence. It was also held in the case of Muhammad Khan v. State 1999 SCMR 1220) that abscondence of the accused can never remedy the defects in the prosecution case. In the case of Gul Khan v. State 1999 SCMR 304 it was observed that abscondence per-se is not sufficient to prove the guilt but can be taken as a corroborative piece of evidence. In the cases of Muhammad Arshad v. Qasim Ali 1992 SCMR 814, Pir Badshah v. State 1985 SCMR 2070 and Amir Gul v. State 1981 SCMR 182 it was observed that conviction on abscondence alone cannot be sustained. In the present case, substantive piece of evidence in the shape of ocular account has been disbelieved, therefore, no conviction can be based on abscondence alone”.
Similar view was taken by the apex Court of the country in the cases reported as “Tahir Khan vs. The State” (2011 SCMR 646), “Haji Paio Khan vs. Sher Biaz and others” (2009 SCMR 803), “Muhammad Sadiq vs. The State” (2017 SCMR 144), “Muhammad Tasaweer vs. Hafiz Zulkarnain and 2 others” (PLD 2009 Supreme Court 53) and “Rahimullah Jan vs. Kashif and another” (PLD 2008 Supreme Court 298).
12. It is further noteworthy that as per prosecution case, the motive behind the occurrence was that the complainant earlier lodged FIR No. 377/2001 under Section 377, PPC against Sajjad Hussain,
co-accused and as the complainant alongwith Muhammad Anwar (deceased) was prosecuting the said case, therefore, the accused persons committed the occurrence. As mentioned earlier, the complainant party/legal heirs of the deceased have already effected a compromise with Sajjad Hussain, co-accused against whom the motive was alleged and he has been acquitted in this case on the basis of compromise. No motive was alleged against Asif (appellant).
13. I have considered all the aspects of this case and have come to this irresistible conclusion that the prosecution could not prove its case against the appellant (Asif) beyond the shadow of doubt.
14. In the light of above discussion, I accept Criminal Appeal No. 224-J of 2009 to the extent of Asif (appellant), also set aside his conviction and sentence recorded by the learned Additional Sessions Judge, Bhalwal District Sargodha vide impugned judgment dated 17.06.2009 and acquit him of the charges under Sections 302(b)/34, PPC by extending him the benefit of doubt. Asif (appellant) is in custody, he be released forthwith, if not required in any other case.
(A.A.K.) Appeal accepted
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