PLJ 2022 Cr.C. (Note) 22
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 324 & 337-F(v)--Conviction and sentence--Challenge to--Benefit of doubt--Motive--Credibility of both eye-witnesses becomes doubtful and it is settled law by now that improvement once found deliberate and dishonest, it casts serious doubts on veracity of eye-witnesses--Other aspect of case is that complainant implicated five persons in case in hand--Accused is father of rest of four accused persons--Out of them woman were found innocent by police, which means that story of prosecution has been falsified to extent of above said two accused and since principle of “falsus in uno, falsus in omnibus”--As far as motive part is concerned, prosecution has not produced any independent witness to establish same--Admittedly, hatchet got recovered by accused was not sent to Punjab Forensic Science Agency for comparison--Although crime empties recovered by police from place of occurrence and pistol which was allegedly got recovered by co-accused were sent to Punjab Forensic Science Agency but pistol recovered was sent after arrest of co-accused appellant, as such same has no value in eye of law--So, recovery from both accused persons remained inconsequential--These creates serious doubts in veracity of prosecution evidence and prosecution has failed to prove its case against appellants beyond reasonable doubt--Held: it is settled law by now that even a single doubt is sufficient for acquittal of accused.
[Para 13, 14, 15, 16 & 17] A, B, C, D & E
1995 SCMR 1345, PLD 2002 SC 1048, 2009 SCMR 230 and
2019 SCMR 79.
Mr. Ali Aman Mohsin, Advocate for Appellants.
Ch. Muhammad Anwar Bhinder and Mr. Faisal Sagheer Rana Advocates for Complainant (also in Criminal Revision No. 1124 of 2014).
Mr. Tariq Javed, District Public Prosecutor for State.
Date on hearing: 11.4.2019.
PLJ 2022 Cr.C. (Note) 22
[Lahore High Court, Lahore]
Present: Muhammad Waheed Khan, J.
NAZIM ALI and others--Appellants
versus
STATE and others--Respondents
Crl. A. No. 2137 & Crl. Rev. No. 1124 of 2014, decided on 11.4.2019.
Judgment
This judgment shall disposed of the Crl. Appeal No. 2137 of 2014 filed by the appellants, namely, Nazim Ali and Zahid Ali (against their conviction and sentence) and Crl. Revision No. 1124 of 2014 filed by the complainant Muhammad Iqbal for enhancement of sentence of accused persons. As both the matters have been arisen out of the same judgment dated 12.11.2014 passed by the learned Addl. Sessions Judge, Gujranwala in private complaint under Sections 302/324/
337-A(i)/337-F(v)/148/149, P.P.C. as well as in case FIR No. 632/2012 dated 22.10.2012 registered at Police Station Cantt., Gujranwala, whereby appellants were convicted and sentenced as under:
i. Nazim Ali
Under Section 324, P.P.C. awarded seven years rigorous imprisonment and fine of Rs. 25,000/-, in default of payment of fine, he was ordered to further undergo simple imprisonment for two months.
Under Section 337-F(v), P.P.C. awarded five years rigorous imprisonment. He was also held liable to pay Daman of Rs. 25,000/- to injured Shazib Iqbal. In default of payment of Daman, he was ordered to be dealt with under the provisions of Section 337-Y(2), P.P.C.
ii. Zahid Ali
Under Section 302(b), P.P.C. awarded Imprisonment for Life as Ta’zir. He was also directed to pay compensation of Rs. 1,00,000/- to the legal heirs of deceased Rizwan Iqbal under Section 544-A, Cr.P.C. and in default thereof, he was ordered to further undergo simple imprisonment for six months.
Benefit under Section 382-B, Cr.P.C. was also extended to both the convicts.
Co-accused Nadir Ali was also convicted under Section 337-A(i), P.P.C. and sentenced vide same judgment.
2. Feeling aggrieved of the judgment passed by the learned trial Court, appellants have assailed their conviction and sentence by filing instant appeal. On the other hand, complainant filed revision petition for enhancement of sentence of the accused persons awarded by the learned trial Court.
3. Prosecution story as portrayed by Muhammad Iqbal while appearing before the learned trial Court as PW-8 is as under:
“States that on 21.10.2012 at 4.00/4.30 p.m. he along with his sons namely Shazib Iqbal and Rizwan Iqbal, was present in his house. They received information that accused are lifting soil from their land by trolley and Crane. They proceeded to their land, Shazib Iqbal and Rizwan were going ahead of him, while he was following them. They saw that accused Nadir Ali armed with hatchet, Nazim Ali, Zahid Ali, armed with pistols present in the Court along with Allah Ditta (since died) and Aqil Ali (since P.O.) armed with pistols and two unknown persons armed with fire-arm weapons were lifting soil from their land by trolley and Crane. Accused Nadir Ali raised lalkara that they should be taught a lesson for forbidding them from lifting the soil whereby Nadir Ali accused inflicted a hatchet blow which hit on the chin of Shazib Iqbal. Allah Ditta accused (since died) and Nazim Ali accused made firing with their pistols which hit on both the legs of Shazib Iqbal Zahid Ali and Aqil Ali accused made firing with their pistols upon his son Rizwan Iqbal. Fire of Zahid Ali accused hit on left side of the chest of Rizwan Iqbal. All the accused made firing upon him but he saved himself running away from the spot. On hearing the noise of fire shots Nazar Muhammad son of Jalal Din and Irfan son of Zafar were attracted towards the place of occurrence and witnessed the occurrence. Thereafter accused persons fled away from the place of occurrence by making firing and extending threats of dire consequences to him. He arranged a vehicle and shifted my sons Shazib Iqbal and Rizwan Iqbal to DHQ Hospital Gujranwala. After medical examination and treatment Rizwan Iqbal was referred to Mayo Hospital Lahore as he was serious and Shazib Iqbal was admitted in DHQ Hospital Gujranwala.
Motive for commission of offence was that accused persons wanted to take forcible possession of his land.”
4. After registration of case, police investigated the case but complainant feeling dissatisfied with the same, filed private complaint against the appellants and others. Thereafter, formal charge against the appellants along with their co-accused was framed, to which they pleaded not guilty and claimed trial.
5. Prosecution in order to prove its case produced as many as fifteen witnesses. Ocular account was furnished by the complainant Muhammad Iqbal who appeared as PW-8 and Shazib Iqbal injured who appeared as PW-9. Medical evidence was furnished by PW-11 Dr. Usman Ashraf who conducted autopsy on the dead body of the deceased Rizwan Iqbal, PW-13 Dr. Ahmad Ijaz who medically examined the injured Shazib Iqbal and deceased Rizwan Iqbal, PW-14 Dr. Muzammil Altaf who conducted operation of deceased Rizwan Iqbal and PW-15 Dr. Anjum Javed Sindhu. Investigating Officer of case Muhammad Nawaz SI appeared as CW-1. The remaining witnesses were of formal in nature and prosecution after producing certain documents closed its evidence.
6. PW-11 Dr. Usman Ashraf while conducting post-mortem examination on the dead body of the deceased Rizwan Iqbal observed following injury on person of the deceased.
INJURIES
According to MLC No. 5065/12 by doctor Ahmad Ijaz dated 21.10.2012 at 5.00 p.m. following injuries were noted; -
1. A fire-arm lacerated wound of entry 1-1/2 cm x 1-1/2 cm with inverted margins, blackening around entry front of left, about 4 cm from left nipple below and towards sternum, approximately 4 cm away from sternum, corresponding hole was present on qameez.
2. A fire-arm lacerated wound of exit 1x1 cm with everted skin margins on upper part of right buttock, approximately 10 cm from midline ( hips) with corresponding hole on Shalwar.
Injuries seen during the post-mortem examination of the dead body are as under:-
1. Debrided wound 5 x 4 cm x going deep on front of left chest middle part 1.5 cm lateral to midline and 3 cm below and medial to left nipple.
2. Stitched wounds eight in number on front of abdomen at midline, above and below umbilicuous in an area of 32 x 36 cm.
3. Colostomy bag present on right side of abdomen.
4. Two stitched wounds along with drain present on left side of abdomen lower part, 3 to 4 cm above left iliac crest.
5. Debrided wound circular in shape about 12 x 10 cm X bone exposed on outer part of right thigh upper part and right buttock upper part which was 5 cm below and lateral to right iliac crest.
OPINION
In his opinion Injury No. 1 was sufficient to cause death in ordinary course of nature. All injuries were ante mortem in nature and were caused by fire-arm weapon (as injury Nos. 1 and 2 according to MLC). Time elapsed between injuries and death was within two weeks and time elapsed between death and post-mortem was within six hours.
7. After completion of prosecution evidence, statements of appellants were recorded under Section 342, Cr.P.C., who opted not to appear as witness under Section 340(2), Cr.P.C., however, they produced evidence in their defence. While answering question (Why this case against you and why the PWs deposed against you?), appellants have denied all allegations leveled against them by the prosecution.
8. After evaluating prosecution evidence available on record, learned trial Court found the prosecution version correct beyond any shadow of doubt, which resulted into conviction and sentence of the appellants in the afore stated terms.
9. Learned counsel for the appellants in support of instant appeal submits that the prosecution has failed to prove its case against the appellants beyond reasonable doubt; that the complainant and eye-witness have failed to establish their presence at the place of occurrence; that the deposition of injured eye-witness Shazib Iqbal who appeared in the witness box as PW-9 is not believable because he has made dishonest improvements, as in his statement recorded under Section 161, Cr.P.C. before the police he categorically stated that after receiving of injuries at the hands of accused he became unconscious and did not know what happened at the place of occurrence and he never claimed that he is the witness qua the incident of murder of deceased Rizwan Iqbal; that medical evidence does not support the prosecution story in any way; that the recovery allegedly affected from the accused persons is of no consequence as empties allegedly secured from the place of occurrence were sent to the office of Punjab Forensic Science Agency after the arrest of the appellants. Lastly prays that by accepting the instant appeal, appellants may be acquitted of the charge.
9. On the other hand, learned District Public Prosecutor assisted by the learned counsel for the complainant strongly controverted the arguments advanced by the learned counsel for the appellants and submits that the prosecution has successfully proved its case against the appellants beyond reasonable doubt by producing cogent, reliable and trustworthy evidence and especially evidence of Shazib Iqbal who appeared as PW-9 has stamp of injuries and his presence at the place of occurrence cannot be disbelieved at any stretch of imagination; that during the course of investigation and trial both the eye-witnesses remained consistent qua the culpability of appellants in the commission of crime; submits that medical evidence produced by the prosecution squarely supports the version of prosecution and the motive as alleged in the FIR has also been proved during the course of trial against the appellants; that during the course of investigation Nazim Ali appellant got recovered hatchet, whereas appellant Zahid Ali got recovered pistol, which was sent to the office of Punjab Forensic Science Agency and it was found wedded with the crime empties allegedly secured by the police from the place of occurrence so, report of Punjab Forensic Science Agency provides sufficient support to the prosecution version. Finally prays that instant appellant may be dismissed.
10. I have heard arguments and perused the record with the assistance of learned counsel for the parties.
11. After hearing the arguments of learned counsel for the parties and perusing the evidence available on record, it transpires that the alleged incident had taken place on 21.10.2012 at 4.30 p.m. in the area of Police Station Cantt, Gujranwala, in which Rizwan Iqbal deceased and his real brother Shazib Iqbal sustained injuries, who were taken to DHQ Hospital, Gujranwala by their father/complainant in the company of Sabir Ali constable, where both were medically examined by doctor Ahmad Ijaz PW-13, who prepared their medical reports Ex-PM and Ex-PN respectively. Thereafter, Rizwan Iqbal was referred to Mayo Hospital Lahore due to precarious condition, who expired there on 03.11.2012 at 3.15 p.m.
12. Being dissatisfied by the police investigation, Muhammad Iqbal complainant PW-8 filed private complaint. According to its contents, accused Nadir Ali raised lalkara and caused hatchet blow at the chin of Shazib Iqbal PW-9, accused Nazim Ali, Allah Ditta alias Bao (since died) made fire shots with pistols which landed on both legs of Shazib Iqbal (PW-9). Accused persons Zahid Ali and Aqil Ali (since P.O.) made fire shots with their pistols upon Rizwan Iqbal and fire shot of appellant/accused Zahid Ali hit on left side of chest of Rizwan Iqbal and thereafter all the accused also made firing on the complainant but he ran away from the spot.
13. After perusal of contents of FIR, private complaint and depositions made by the PWs before the learned trial Court, it transpires that the complainant while lodging the FIR had narrated that accused persons Zahid Ali and Aqil Ali (since P.O.) made fire shots with their pistols which hit on the belly of Rizwan Iqbal deceased and there is force in the arguments of learned counsel for the appellants that when Rizwan Iqbal was medically examined by doctor PW-13 in injured condition and thereafter conducted post-mortem examination, it was found that only one fire-arm entry wound was available on the person of the deceased and that too on his chest and the other injury is an exit wound, so, the complainant took somersault and filed private complaint wherein he while making dishonest improvement in his version stated that it was the present appellant Zahid Ali whose fire shot hit the deceased Rizwan Iqbal at his chest. This portion was duly confronted to the complainant with his previous statement by the learned defence counsel during the course of cross-examination before the learned trial Court. The other aspect of the case is that complainant Muhammad Iqbal is father of deceased Rizwan Iqbal and injured Shazib Iqbal PW-9 whereas accused Nadir is the real brother of the complainant and accused Allah Ditta alias Bao (since died), Nazim Ali, Zahid Ali and Aqil Ali are real sons of the accused Nadir Ali, thus they are real nephews of the complainant, so, this factum of close relationship between parties has never been highlighted by the complainant while lodging the instant crime report. Even otherwise, the complainant has also made many other improvements while deposing before the learned trial Court. The other eye witness/injured of the alleged incident Shazib Iqbal appeared as PW-9. Although the said PW-has stamp of injuries on his person and his presence on the place of occurrence apparently cannot be denied but in his statement under Section 161, Cr.P.C. recorded by him during the course of investigation on 27.11.2012, he categorically stated that after receiving injuries, he became unconscious and thereafter what happened at the place of occurrence, he had no knowledge about that and admittedly, deceased received the injuries thereafter but said PW-never claimed that he had seen the appellant Zahid Ali while firing on the deceased. Whereas while deposing before the learned trial Court, he made an improvement in his statement, wherein he claimed to be a witness of fire shot made by accused persons Zahid Ali and Aqil Ali on the person of the deceased. This portion of his deposition was duly confronted with his previous statement Ex-DC. He has also improved his statement qua the other aspect of the case and this Court found that these improvements made by this witness can be categorized as dishonest improvements. Therefore, credibility of both the eye-witnesses becomes doubtful and it is settled law by now that improvement once found deliberate and dishonest, it casts serious doubts on the veracity of eye-witnesses.
14. The other aspect of the case is that complainant implicated five persons in the case in hand. Accused Nadir is the father of rest of four accused persons, namely, Nazim Ali, Zahid Ali, Aqil Ali (since P.O.) and Allah Ditta alias Bao (since died). Out of them Aqil Ali and Allah Ditta alias Bao were found innocent by the police, which means that story of prosecution has been falsified to the extent of above said two accused and since the principle of “falsus in uno, falsus in omnibus” has been fully restored by the august Supreme Court of Pakistan in its recent judgment passed in Crl. Miscellaneous Application No. 200 of 2019 in Crl. Appeal No. 238-L of 2013. So, the story narrated by the prosecution qua the role played by appellants can be discarded on this sole ground alone.
15. As far as motive part is concerned, prosecution has not produced any independent witness to establish the same.
16. Admittedly, the hatchet got recovered by accused Nadir Ali was not sent to Punjab Forensic Science Agency for comparison. Although the crime empties recovered by the police from the place of occurrence and the pistol which was allegedly got recovered by Zahid Ali were sent to the Punjab Forensic Science Agency but the pistol recovered was sent after the arrest of Zahid Ali appellant, as such the same has no value in the eye of law. So, recovery from both the accused persons remained inconsequential.
17. So, keeping in view the case in its totality, there creates serious doubts in the veracity of prosecution evidence and I therefore, hold that prosecution has failed to prove its case against the appellants beyond reasonable doubt. Even otherwise, it is settled law by now that even a single doubt is sufficient for acquittal of the accused. Reliance is placed on the judgments passed by the august Supreme Court of Pakistan in cases reported as “Tariq Pervez v. The State” (1995 SCMR 1345), “Ayub Masih v. The State” (PLD 2002 SC 1048), “Muhammad Akram v. The State” (2009 SCMR 230) and “Munir Ahmad and another v. The State and others” (2019 SCMR 79). The august Supreme Court of Pakistan in case of “Muhammad Akram v. The State” mentioned supra observed as under:
“For giving the benefit of doubt it is not necessary that there should be many circumstances creating doubts--Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefit, not as a matter of grace and concession, but as a matter of right.”
17. In view of the above discussion, instant criminal appeal is accepted and conviction and sentence awarded by the learned trial Court to the appellants Nazim Ali and Zahid Ali is set aside and they are acquitted of the charge. Appellant Nazim Ali is on bail, so, his surety stands discharged from liability of bail bonds, whereas appellant Zahid Ali is in jail, so, he is ordered to be released forthwith if not required to be detained in any other case.
16. In the light of above discussion, as the story of prosecution has been disbelieved, so, Crl. Revision No. 1124 of 2014 filed by the complainant Muhammad Iqbal for enhancement of sentence awarded by the learned trial Court to accused persons/respondents, namely, Nadir Ali, Nazim and Zahid Ali, is dismissed.
(A.A.K.) Appeal accepted
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