PLJ 2022 Cr.C. (Note) 38
Ocular account--
----When ocular account is disbelieved being unreliable and untrustworthy then all other incriminating pieces of evidence corroboratory or supportive nature howsoever high they are, lose their evidentiary value. [Para 6] A
Criminal Procedure Code, 1898 (V of 1898)--
----S. 417(2-a)--Pakistan Penal Code, (XLV of 1860), Ss. 302, 427, 337-A(ii) & 34--Appeal against acquittal--This appeal is against acquittal of Respondents No. 1 to 4 and on principle, generally Courts give due weight and consideration to findings of acquittal--This approach is different from that in an appeal against conviction where Courts extend benefit of every doubt arising out from facts and circumstances of case to accused person--Acquittal carries with it two presumption, (i) that till found guilty accused is innocent and (ii) that after trial Court below had confirmed assumption of his innocence--Exceptions to above referred principles which are consistently being followed are only that trial Court while appraisal of evidence had disregarded material evidence which had substantial bearing on fate of case--The important test was that finding sought to be interfered should be found wholly artificial, shocking and ridiculous--It is also not disputed that Court do not interfere in finding of acquittal where only after perusing evidence and record, a different view regarding culpability of accused in commission of crime was possible--Apeal dismissed. [Para 7] B
PLD 2011 SC 554 ref.
M/s. Sikandar Zulqarnain Saleem and Muhammad Usman Riaz Gill, Advocates for Appellant.
M/s. Tayyab Shakoor Rana and M. Ishnaq Sahu, Advocates with Respondents.
Mr. Humayoun Aslam, Deputy Prosecutor General for State.
Date of hearing: 11.5.2017.
PLJ 2022 Cr.C. (Note) 38
[Lahore High Court, Lahore]
Present: Syed Shahbaz Ali Rizvi and Ahmad Raza Gilani, JJ.
MUHAMMAD SALIM--Appellant
versus
ZULFIQAR alias ZULFI etc.--Respondents
Crl. A. No. 981 of 2007, decided on 11.5.2017.
Judgment
Ahmad Raza Gilani, J.--Muhammad Salim son of Haji Mehar Din through this Criminal Appeal No. 981/2007 had sought reversal of findings of acquittal of Zulfiqar alias Zulfi, Iftikhar Ahmad alias Bhola both sons of Muhammad Habib, Amjad son of Haji Ashiq Ali and Haji Muhammad Rafique son of Haji Muhammad, pronounced by the learned trial Court/Addl. Sessions Judge, Kasur vide judgment dated 26.06.2007 in case FIR No. 396/2003 dated 13.09.2003, offences under Section 302, 427, 337-A(ii), 34, PPC Police Station City A-Division, Kasur. All the said four respondents/acquitted faced trial in the said criminal case to dislodge the following charges:
“That on 13.9.2003 at about 5.00 p.m., within the vicinity of Ali Ahmad Shah Colony Kasur, falling within the jurisdiction of P.S. A-Division Kasur, you the above mentioned accused persons having firearm weapons, along with your co-accused Muhammad Rafique (since P.O), in furtherance of your common intention caused intentional murder of Muhammad Munir, as such committed the offence punishable under Section 302, PPC read with Section 34, PPC which is within the cognizance of this Court.”
Secondly, that on the same date, time and place you the above mentioned accused persons along with your co-accused Muhammad Rafique (P.O) in furtherance of your common intention caused two injuries to Muhammad Saleem injured which were found vide MLR as Shujjah Mudiahah fallings under Section 337-A(2), PPC as such committed the offence punishable under Section 337-A(2), PPC read with Section 34, PPC which is within the cognizance of this Court.
Thirdly, that on the same date, time and place you the above mentioned accused persons alongwith your co-accused Muhammad Rafique (P.O) having fire arms weapons in furtherance of your common intention, after having made preparation for causing death of Muhammad Munir and causing injuries to Muhammad Saleem, damaged vehicle Pajero No. 9032/LOF. as such committed the offence punishable under Section 440, PPC read with Section 34, PPC which is within the cognizance of this Court.”
2. Brief facts as alleged in the FIR lodged by Talat Haneef, complainant are that he being contractor had been working with his uncles and civil as well as criminal litigation was pending between the complainant and respondent-Muhammad Rafique son of Haji Muhammad etc over a plot situated in Ali Ahmad Shah Colony. On the day of occurrence, Muhammad Rafique, accused/respondent called telephonically Muhammad Munir, uncle of the complainant to his house situated in Ali Ahmad Shah Colony for settlement over the plot upon which uncle of the complainant Muhammad Munir along with his elder brother Muhammad Saleem, Muhammad Shafique and one Abdul Sattar went on Pajero No. 9032-LOF towards Ali Ahmad Shah Colony. After a short while, the complainant also went there on his motorcycle at 5.00 p.m. At that time, hot words were being exchanged between Muhammad Munir and Rafique etc. During the course of hot words, uncle of the complainant Muhammad Munir sat in his vehicle which was parked near house of Ch. Muhammad Zubair, Advocate. Accused Muhammad Rafique while abusing made lalkara and asked his companions/co-accused Zulfiqar alias Zulfi, Iftikhar alias Bhola and Amjad son of Muhammad Ashiq to teach lesson to deceased Munir over litigation of a plot and made fire with his Mauzar at Muhammad Munir, uncle of the complainant which hit him on the upper portion of right chest. Co-accused Zufliqar alias Zulfi made fire with his pistol which hit Munir at the right upper portion of right hand and in front of the chest. The deceased Munir fell down towards left side of front seat. Accused Iftikhar alias Bhola also made fire with his pistol which hit Munir at back of flank. Thereafter co-accused Amjad made fire which hit Munir at the right upper portion of the arm and flank. The deceased Munir became seriously injured. Muhammad Saleem, another uncle of the complainant tried to run away but all the accused caught him and caused injuries on his head with “Butt” of pistols who fell down on the ground and became unconscious. The occurrence was witnessed by Muhammad Hayat, Abdul Sattar and Muhammad Shafique. The complainant along with Muhammad Shafique when were taking Munir and Saleem to DHQ Hospital, Kasur, accused Rafique broke back screen with the “Butt” of his Mouzar and thereafter all the accused fled away while making aerial firing. Munir succumbed to the injuries sustained by him while injured Muhammad Saleem was got admitted in the hospital. The motive behind the occurrence was civil as well as criminal litigation over a plot between the complainant party and Muhammad Rafique.
3. We have heard the learned counsel for the parties as well as the learned Deputy Prosecutor General and have gone through the record with their able assistance.
4. Prosecution to prove the charges levelled against the respondents produced Talat Haneef, complainant of the case as PW-14, Abdul Sattar PW-12 and Muhammad Saleem injured, eye witness
PW-13 who furnished ocular account of the occurrence. Amongst the said eye witnesses PW-13 Muhammad Saleem, who sustained injuries in the occurrence is the pivotal witness of the prosecution. PW-14 Talat Haneef complainant of the case deposed that there were some civil and criminal cases pending between them and Muhammad Rafique respondent/accused in different Courts, one of the dispute was regarding the plot situated in Ali Ahmad Shah Colony. On 13.09.2003, accused Muhammad Rafique summoned uncle of the complainant Muhammad Munir telephonically to his house situated in Ali Ahmad Shah Colony in order to settle down the dispute regarding the said plot and his uncle Muhammad Munir along with Muhammad Saleem, Muhammad Shafique and Abdul Sattar went to the house of accused/respondent Rafique on Pajero on the same day. After a short while, he also went to the house of Rafique accused/respondent on his motorcycle at about 5.00 p.m. and when he reached there, he observed exchange of hot words between Rafique etc and his uncle Munir and thereafter his uncle Munir Ahmad came back and sat in his Pajero but Rafique accused/respondent started abusing to said Munir Ahmad and asked other accused Zulfiqar, Iftikhar and Amjad to teach lesson to Munir for instituting the suit against them and Munir Ahmad be not allowed to go alive. Thereafter Muhammad Rafique fired with Mauzar which hit on the upper side of nipple of Muhammad Munir, Zulfiqar and Iftikhar accused/respondents also made fire with their pistols which caused injuries to Munir to upper portion of right arm, front of chest. Accused Iftikhar made another fire on the back of flank of Munir Ahmad. Fire shot of Amjad accused hit on right upper arm and on flank. Talat Haneef complainant of the case further stated that his uncle Saleem tried to flee away but was caught hold by all of the accused and the accused caused injuries with the “Butt” of the pistol on the head of Saleem who fell down on the ground and became senseless. Muhammad Rafique accused/respondent also broke back screen of jeep with the “Butt” of his Mauzar. Thereafter all the said accused persons/respondents left the crime scene. In this occurrence Munir Ahmad succumbed to the injuries in the hospital and Muhammad Saleem received injuries at the hands of accused persons/respondents. Talat Haneef complainant of the case PW-14 during cross-examination admitted that one Sher Muhammad got a case registered under Section 302, PPC against him and his father. Other co-accused were his brother Shahzad Haneef, Haji Muhammad Haneef, Muhammad Hanif Kamboh and Muhammad Saleem injured of the present case. This case was registered at Police Statin Saddar, Kasur and one of the witnesses in the said case was Muhammad Rafique accused of this case. Talat Haneef further stated that a criminal case was got registered against Muhammad Rafique accused and others for the alleged murder of his father Muhammad Hanif. Muhammad Saleem PW-13 injured witness of the occurrence, supported the version of the complainant Talat Haneef. Deceased Muhammad Munir was his brother and he also admitted that there were civil as well as criminal litigation pending between both parties, complainant and accused/respondents side. Said injured Muhammad Saleem also assigned the same role of causing firearm injuries by the accused person to deceased Munir Ahmad which were ascribed to them by PW-4 Talat Haneef. According to him, he received injuries at the hands of Muhammad Rafique and Zulfiqar accused persons/ respondents and became unconscious. Statement under Section 161, Cr.P.C. of the said injured Muhammad Saleem was recorded during investigation on 15.09.2003 after two days of the occurrence. Muhammad Saleem injured PW also did not deny that a criminal case was registered against him, his brother Munir Ahmad deceased, Talat Haneef complainant of the case Muhammad Haneef, father of the complainant Talat Haneef at Police Station Saddar, Kasur for murder of Munshi Sarwar and Muhammad Rafique accused/respondent was witness in that occurrence. As regards dispute over plot measuring
5-Marlas situated in Ahmad Shah Colony, said PW-13 Muhammad Saleem stated that he did not know description of the said plot but litigation is pending for the last six years in which his two brothers Muhammad Haneef and Muhammad Munir have been given general power of attorney. Munir Ahmad deceased was 32 years at the time of his murder and was unmarried. This occurrence took place in front of the house of one Zubair, Advocate which was at a distance of about 100 feet from the house of Rafique accused. Hot words were exchanged between them and accused Rafique in front of the house of said Rafique which lasted for five minutes whereafter they came back and boarded their jeep. During the cross-examination, said injured Muhammad Saleem could not controvert the fact that other criminal cases had also been registered at different police stations against his brother Munir Ahmad, deceased. However, said injured PW categorically stated that prior to this occurrence, no dispute had ever arisen between them and accused Zulfiqar etc and they have been residing in Union Council No. 3 City Kasur. His brother Muhammad Haneef contested election for the seat of Naib Nazim, Union Council against Muhammad Mansha who was nominee of Zulfiqar accused/ respondent but in that election his brother late Muhammad Haneef was declared as returned candidate. Loosing candidate Muhammad Mansha was married with “Mamoozad” of accused Zulfiqar whereas accused Rafique is “Khalazad” of Zufiqar accused. Muhammad Saleem PW-3 deposed that after receiving injuries, he lost his senses and did not know as to whether or not the police came to the hospital for recording his statement. Muhammad Saleem remained unconscious till the night of 14.9.2003 and his statement was recorded by the Investigating Officer on 15.9.2003 but he did not produce any MLR to the police nor any X-Ray. Muhammad Saleem deposed that when he gained senses, he was told about the murder of his brother Muhammad Munir on his asking. When Muhammad Saleem PW-3 saw the Pajeero after coming into senses, he observed back scene of Pajeero broken but other glasses of the jeep were not broken. He also did not notice any sign of bullet on the said Pajeero. He did not observe the blood of his deceased brother Muhammad Munir in the said Pajeero. Muhammad Saleem injured PW-13 admitted that a criminal case FIR No. 250/2005 under Gambling Act was registered against him and others. During cross-examination, it was brought on record that in many cases, injured Muhammad Saleem was either accused person or complainant of the case, throwing light as to the general character of Muhammad Saleem, injured. Criminal case FIR No. 76/2003 dated 17.02.2003 was also registered against Munir Ahmad, deceased for collection of illegal tool tax. A similar case FIR No. 75/2003 was also registered agajnst his brother Muhammad Munir deceased of the case. Munir Ahmad deceased had also got registered criminal case FIR No. 632/2002 a murder case against Sher Muhammad, Anwar sons of Muhammad Sarwar, Muhammad Ashiq and others for the murder of elder brother Muhammad Haneef in which Iftikhar accused/ respondent and Shafique were cited as witnesses. Muhammad Saleem injured PW-13 with stood lengthy cross-examination and was suggested that after removing clothes of Zulfiqar accused/respondent he passed his urine in the mouth of Zulfiqar.
5. Dr. Zulfiqar Ahmad, Medical Officer, DHQ Hospital Kasur PW-6, examined injured Muhammad Saleem PW-13 on 13.09.2003 at 5.30 p.m. Said doctor found two injuries on the person of injured Muhammad Saleem and were declared Shujjah Mudiahah 337-A(ii), PPC. Probable duration of injuries were declared within first six hours approximately and said injuries were caused by blunt weapon. Said doctor also medically examined Zulfiqar accused on 16.9.2003 after three days of the occurrence and found six injuries on his person which were declared as Shujjah-e-Khafifa 337-A(i) and Jurrah Ghyr Jaifa Damiah 337-F(i), PPC. According to the doctor, duration of injuries was declared between 3 and 4 days approximately and said injuries were caused by blunt weapon. PW-7 Dr. Mumtaz Ahmad conducted post mortem on the dead body of Muhammad Munir on 14.9.2003 at 9.00 a.m. and observed six firearm injuries on his person. Time between injuries and death was immediate whereas time between death and post mortem was about 16 hours approximately.
6. Trial Court disbelieved the ocular account of the occurrence and reasons advanced to disbelieve injured Muhammad Saleem PW-13 are contained in para No. 106 of trial Court judgment. Other eye witnesses of the case Talat Haneef and Abdul Sattar PW-12 could not satisfactorily account for their presence at the spot. Muhammad Saleem PW-13 though sustained injuries in the occurrence but at the most his presence at the time of occurrence at the stated place can only be believed but to hold that he being injured in all the circumstances will tell straight forward and true story that is not rule of thumb. Though reasons advanced by the trial Court to disbelieve injured
PW-13 Muhammad Saleem are not convincing and cogent but facts and circumstances brought on record suggest that PW-13 Muhammad Saleem injured witness of the occurrence had not spoken truth. Injuries sustained by Zulfiqar accused/respondent were suppressed by complainant side which further exposed their malafide. Prosecution remained unable to explain when two eye witnesses of the occurrence Talat Haneef PW-14 and Abdul Sattar PW-12 were not found present at the time of occurrence and , Muhammad Saleem after receiving injuries lost senses, who took Munir Ahmad deceased and Muhammad Saleem injured to hospital. Muhammad Saleem injured PW-13 remained unconscious for two days but FIR had been lodged prior to the gaining of senses by Muhammad Saleem injured, ascribing role to each accused/respondents of causing firearm injuries to Munir Ahmad, deceased and injured Muhammad Saleem. Going to the house of Muhammad Rafique when there was enmity of serious nature between them also raise questions on the veracity of prosecution case. When ocular account is disbelieved being unreliable and untrustworthy then all other incriminating pieces of evidence corroboratory or supportive nature howsoever high they are, lose their evidentiary value and there is no need to discuss them.
7. We have also gone through the record and find no reason to interfere in the findings of acquittal reached by the trial Court. This appeal is against the acquittal of the Respondents No. 1 to 4 and on principle, generally Courts give due weight and consideration to findings of acquittal. This approach is different from that in an appeal against conviction where Courts extend benefit of every doubt arising out from the facts and circumstances of the case to the accused person. Acquittal carries with it two presumption, (i) that till found guilty accused is innocent and (ii) that after the trial Court below had confirmed the assumption of his innocence. Exceptions to the above referred principles which are consistently being followed are only that trial Court while appraisal of evidence had disregarded the material evidence which had substantial bearing on the fate of the case. The important test was that finding sought to be interfered should be found wholly artificial, shocking and ridiculous. It is also not disputed that the Court do not interfere in the finding of acquittal where only after perusing the evidence and record, a different view regarding the culpability of the accused in the commission of crime was possible. Supreme Court had laid down principles to be observed while dealing with an appeal filed against the acquittal of accused person in case reported as The State v. Abdul Khaliq and others (PLD 2011 SC 554) which are as under:
“The scope of interference in appeal against acquittal is most narrow and limited, because in an acquittal the presumption of innocence is significantly added to the cardinal rule of criminal jurisprudence, that an accused shall be presumed to be innocent until proved guilty; in other words, the presumption of innocence is doubled. The Courts shall be very slow in interfering with such an acquittal judgment, unless it is shown to be perverse, passed in gross violation of law, suffering from the errors of grave misreading or non-reading of the evidence; such judgments should not be lightly interfered and heavy burden lies on the prosecution to rebut the presumption of innocence which the accused has earned and attained on account of his acquittal. Interference in a judgment of acquittal is rare and the prosecution must show that there are glaring errors of law and fact committed by the Court in arriving at the decision, which would result into grave miscarriage of justice; the acquittal judgment is perfunctory or wholly artificial or a shocking conclusion has been drawn. Judgment of acquittal should not be interjected until the findings are perverse, arbitrary, foolish, artificial, speculative and ridiculous. The Court of appeal should not interfere simply for the reason that on the reappraisal of the evidence a different conclusion could possibly be arrived at, the factual conclusions should not be upset, except when palpably perverse, suffering from serious and material factual infirmities.”
8. After having gone through the entire prosecution evidence and material available on record, we are not inclined to reverse the findings of acquittal of all the accused/respondents passed by the learned trial Court. As a result, Criminal Appeal No. 981/2007 filed by Muhammad Salim fails and is hereby dismissed.
(A.A.K.) Appeal dismissed
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