PLJ 2022 Cr.C. 864
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b)/324/337-A(ii)/337-F(v)/148/149--Conviction and sentence--Challenge to--Qatl-e-Amd--Free fight suggested by the I.O.--Acquittal of co-accused persons--Rioting--Plea of Alibi--Acquittal of--Complainant was not sure that his version was correctly recorded, he should have immediately respond to fill such defects in the case--It was the specific plea of the accused that he was not present at the place of occurrence, rather on the day of the occurrence he was in the Court of magistrate--Call Data Record (CDR) of mobile phone of accused/appellant was also collected by the police showing his presence in that city on the date and time of occurrence--Investigating Officer of the case had declared the accused/appellant and co-accused as innocent in this case--During investigation it could not be brought on record that who caused the injury to whom because it was a mob like situation and a free fight between the parties. Investigation was also supportive to the defence plea--On the same set of evidence already fourteen accused persons stood acquitted and no independent corroboration is available to determine the culpability of present appellant--Motive of the occurrence was a mix of stances but fact remained admitted that rioting took place due to construction at the site--Prosecution was obliged to prove the charge against the accused through substantive evidence, mere on the basis of presumptions, neither the conviction can be recorded nor sustained--Acquit--Appeal allowed. [Pp. 868, 869, 870 & 871] A, B, C, D, E, F & G
PLD 2019 SC 527; 2021 SCMR 873 ref.
Mr. James Joseph, Advocate for Appellants.
Mr. Hassan Mehmood Khan Tareen, Deputy Prosecutor General for State.
M/s. Khawaja Qaisar Butt and Malik Sohail Iqbal, Advocates for Complainant.
Date of hearing 2.3.2022
PLJ 2022 Cr.C. 864
[Lahore High Court Multan Bench]
Present: Muhammad Amjad Rafiq, J.
DOST MUHAMMAD etc.--Appellants
versus
STATE etc.--Respondents
Crl. A. No. 1279, Crl. Rev. No. 463 of 2019 & P.S.L.A No. 2
of 2020, heard on 2.3.2022.
Judgment
Prosecution fixed the allegation on the appellant Dost Muhammad for murder of Zulfiqar Ali, brother of the complainant. Though about the death of the deceased an FIR has already been registered bearing No. 33 dated 23.08.2015 under Sections 324, 148 & 149, PPC at Police Station Shaher Sultan but he was tried in private complaint titled “Muhammad Ayub vs. Dost Muhammad etc..” filed under Sections 302, 324, 337-A(ii)-F(v), 148 & 149, PPC and he was finally convicted and sentenced by the learned trial Court vide judgment dated 14.11.2019 as under:
“Imprisonment for life as Ta‘zir under Section 302 (b), PPC with compensation of Rs. 5,00,000/- under Section 544-A, Cr.P.C., in default thereof, shall further undergo six months simple imprisonment. Benefit of Section 382-D, Cr.P.C. was extended to him.”
2. Complainant has preferred Criminal Revision No. 463 of 2019 seeking enhancement of sentence of the Respondent No. 1 and P.S.L.A. No. 02 of 2020 against acquittal of Respondents No. 2 to 15 therein which are also being decided through this common judgment.
3. It was 23rd of August, 2013 when at about 09/10:00 a.m. Muhammad Ayub, complainant alongwith his brother Sabir Ali (PW-2) was raising platform (Thala) for construction of a new house. In the meanwhile, his brother Zulfiqar Ali (deceased) also came there. All of a sudden Dost Muhammad (appellant) Muhammad Asghar, Abdul Hameed, Abdul Majeed, Nazeer, Muhammad Bakhsh, Basheer Ahmad, Muhammad Nawaz, Niaz Hussain, Ejaz Hussain, Raheem Bakhsh, Irshad Hussain, Riaz Hussain, Abdul Kareem and Abdul Ghafoor alongwith seven unknown accused persons came there, started grappling with the complainant party and abused with filthy language, Zulfiqar Ali (deceased) tried to intervene upon which Dost Muhammad (appellant) inflicted Sota blow at backside of head of Zulfiqar Ali, Muhammad Asghar inflicted Sota on the chest of Zulfiqar Ali, Sota blow given by Abdul Hameed landed at abdomen of Zulfiqar Ali who fell on the ground. When complainant and his brother Sabir Ali, tried to rescue their brother, accused Abdul Majeed gave Sota blow on head of complainant, Sota blow given by Nazir Ahmed hit on left palm of complainant, Bashir Ahmed inflicted sota blow at the back of complainant Muhammad Nawaz inflicted Sota blow at the middle of head of Sabir Ali, Sota blow given by Niaz Ahmed also hit on the head of Sabir Ali, Ijaz Hussain’s Sota blow hit at right wrist of the Sabir Ali. After receiving injuries, all the three injured including complainant fell on the ground. Accused persons Raheem Bakhsh, Irshad Hussain, Riaz Hussain, Abdul Kareem, Muhammad Bakhsh and Abdul Ghafoor etc. remained beating with Sotas to them. Upon listening hue and cries of the complainant and injured witnesses Ijaz Hussain, Abid Ali alongwith other people of vicinity came there who beseeched the accused party and saved the complainant party from them. The complainant alongwith his both the brothers in injured condition were taken to
4. Initially regarding the occurrence, FIR supra was registered but the complainant being dissatisfied to the investigation filed instant private complaint on 02.10.2015. After cursory statements of witnesses fifteen accused persons were summoned to face the trial. Prosecution produced as many as seven PWs and Court summoned two CWs in the case. Main reliance of prosecution was on the statements of complainant Muhammad Ayub (PW-1), Sabir Ali (PW-2) for ocular account, Ghulam Asghar S.I./I.O. (CW-1) for investigation and Dr. Jameel Ahmad Khan (CW-2) for medical account. After close of prosecution evidence accused persons were examined under Section 342, Cr.P.C. wherein they have controverted all the allegations leveled against them and pleaded their innocence, however, in response to a question that why this case is against you? the appellant has replied as under:
“Infact, complainant Muhammad Ayoob is a land lord and feudal type of person who is quarrelsome and tried to occupy the lands of the poor people forcibly, Earlier many cases/FIR’s against Muhammad Ayoob complainant has also been registered in this regard. In pursuance of his instinct of nefarious acts he designed the plot to occupy our house which is situated adjacent to his land and in furtherance of his intention he alongwith his allies came at the spot, broke the wall of our house with the intention to occupy the same and in shape of mob with the help of tractors entered into our house where he harassed our women folk present in the house. On the hue and cry, the people of the locality and vicinity attracted there and tried to rescue our women folk. The complainant party extended them threats of dire consequences and quarreled with them and in said mob the complainant and his allies sustained injuries. On the day of alleged occurrence neither I was present at the spot nor I participated in the occurrence. Actually, on said date, I had gone to the Court of learned Magistrate 1st Class, Muzaffargarh in connection with pursuing my private complaint. The complainant party also caused injuries to our women folk. The complainant party is aggressor one who tried to occupy our house by breaking the wall of the house and thereafter by knitting a false and concocted story being influential one got lodged this false case against us by using the political force. Whole the prosecution story is false and frivolous. I am innocent.”
Whereas in reply to a question that why the PWs deposed against you, the appellant has replied as under:
“All the private PWs are closely related inter se and deposed falsely against me just to strengthen the false prosecution case. Whereas, the Police officials being sub-ordinate of the I.O. have deposed against me.”
5. After the close of trial, fourteen accused stood acquitted whereas present appellant was singled out and was convicted as forecited.
6. Learned counsel for the appellant had developed arguments mainly on the principle of falsus in uno falsus in omnibus, yet pointed out failure of trial Court for not appreciating the weakness of prosecution case against the present appellant too and was of the view that frail prosecution case should be rejected with last prayer of acquittal of the appellant.
7. On the other hand, learned Deputy Prosecutor General assisted by the learned counsel for the complainant supported the judgment. Learned counsel for the complainant had consistent stance with a touch of appreciated observation of trial Court, yet added an independent argument that principle of abundant caution sweeps over the other principles and prayed that conviction of the appellant may be maintained and also prayed for acceptance of P.S.L.A. & Criminal Revision filed by the complainant.
8. Respective contentions of proponents were heard; record perused.
9. The place of occurrence was loaded with uncountable numbers of people from both sides. It was like a rioting situation as spurs out from the evidence on record. Different accused persons were carrying different roles yet all stood acquitted and the reason with the trial Court to single out the appellant was a specific role on the head of the deceased with alleged support of medical evidence. To prove the fact of inflicting injury by the present appellant prosecution has launched two PWs for ocular account, Muhammad Ayub (PW-1) and Sabir Ali (PW-2) who were also injured of the occurrence as well. First go for prosecution was of reporting the crime which consumed three hours to reach the information to the police. The FIR though was registered yet the complainant has disowned the version recorded therein. As reflected from the statement of PW-1 and he has stated such fact during cross-examination as under:
“Instant FIR was not lodged on the basis of my statement. The local police itself reduced into writing the contents of the FIR without my consultation “
And also stated during cross-examination that he did not know who had informed to the police about the occurrence. At another place during cross-examination he deposed as under:
“The police had recorded our statement regarding the occurrence after two hours from the occurrence and also obtained my signature in this regard on some papers. The statement recorded by the police were not based on the facts which were really disclosed by me.”
10. Muhammad Ayub (PW-1) and Sabir Ali (PW-2) though raised the emblem high but stated the role of appellant for causing injury on the back side of head of Zulfiqar Ali (deceased) but doctor has observed the injury on the right side of head during Medico-legal examination of deceased in injured condition. The occurrence was through of 23.08.2013 at 09:00 a.m. and injured was examined after two hours at 11:30 a.m. but doctor has observed duration of injuries as within 24-hours and the doctor (CW-2) who conducted post-mortem examination of the deceased has also observed 3 cm. long stitched wound on right side of head and has observed the probable duration between injury and death as 24-hours which creates serious doubt about the age of injury because injured died on 24.08.2013. Though depressed fracture was present on the head of deceased yet this contradiction controls the situation to examine the presence of witnesses of ocular account. Before proceeding further it has been observed that Abdul Majeed who made Sota blow on the head of the complainant and Sota blows given by Muhammad Nawaz, Niaz Ahmad and Ijaz Hussain, accused on the person of Sabir Ali (PW-2) have stood acquitted from the trial Court. When the witnesses have not been believed for their own injuries, their testimony cannot be stretched in favour of the prosecution to prove the role of the appellant for causing injury on the person of the deceased. Investigating Officer has admitted during cross-examination that it was a rioting like situation, therefore, role of the accused or other party are not possible to be determined or viewed with precision and this fact that both the parties collided with each other has been brought on record through the cross-examination on the PWs. Similar was the situation with PW-2 Sabir Ali. This witness during cross-examination has admitted it correct that local police has opined if the complainant party would not have demolished the wall of accused persons and then would not have entered into their house, said occurrence would not have been taken place. This admission gives a go that occurrence was initiated by the complainant party. This witness has admitted during cross-examination that his statement was not recorded by the police. Further stated as follows:
“My statement was recorded for the first time in the Court in the instant private complaint. I had not joined the investigation before the police.”
This shows that the witness was planted by the prosecution. Though the learned counsel for the complainant states that Abdi Ali (PW-7) is also the eye-witness but when his statement was examined it came to light that he has not given any role to the present appellant in his examination-in-chief upon which learned counsel for the complainant states that this witness had infact not seen the episode of inflicting injuries but later arrived at the place of occurrence. It means prosecution had only two witnesses in support of ocular account and version they are holding is so scanty that the hypothesis of guilt of accused/appellant cannot be rested upon it.
13. Nothing was recovered from the appellant which could help to touch the prosecution case in the form of supportive or corroborative evidence.
16. Grouting all the facts and circumstances of the case, I am of the considered view that the prosecution has failed miserably to establish charge against the appellant, thus, instant criminal appeal is ALLOWED, the conviction and sentence of the appellant is set aside and he is acquitted of the charge by giving him benefit of doubt. He is in custody; he be released forthwith if not involved in any other criminal case. The case property, if any, be disposed of in accordance with law and the record of the learned trial Court be sent back immediately.
Crl. Revision No. 463/19 & F.S.L.A. No. 02 of 2020
17. For., the reasons recorded above, the criminal revision and P.S.L.A. in hand are without any merit, the same stand dismissed in limine.
(M.A.B.) Appeal allowed
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