PLJ 2022 Cr.C. 1009
----S. 302(b)--Conviction and sentence--Challenge to--Qatl-e-amd--Benefit of doubt--Conflict between ocular account and medical evidence--Dishonest improvement--Motive--Hot words exchanged--Presence of eye-witnesses at place of occurrence at relevant time is not free from doubts and prosecution has failed to prove its case against appellant beyond reasonable doubt--There is direct conflict between ocular account and medical evidence because in case a fire shot from gun .12 bore blackening can occur if fire is made from a distance of not more than four feet--Held: It is a settled proposition of law that blackening appears on dead body in case deceased has received injuries at a distance of 4 feet--Motive behind occurrence was that 10/15 minutes before occurrence some hot words were exchanged between complainant party and appellant--No specific place has been described by prosecution where hot words were exchanged between them--The law is settled by now that if prosecution asserts a motive but fails to prove same, then such failure on part of prosecution may react against a sentence of death/life en charge of murder--Appeal was allowed.
[Pp. 1013, 1014 & 1015] A, B, C & D
PLD 2013 SC 793, 2018 SCMR 772, 2019 SCMR 631, 2021 SCMR 810, 2007 SCMR 1812, 2019 SCMR 129, 2017 SCMR 148, 2017 SCMR 880 and 2018 SCMR 21 ref.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 103--Violation of S. 103, Cr.P.C.--Police officer who effected recovery of gun .12 bore at pointation of appellant has not joined any witness from vicinity, thus, violated express provisions of section 103 Cr.P.C. [P. 1015] E
2017 SCMR 898 and 2006 SCMR 1707.
Benefit of doubt--
----It is an axiomatic principle of law that in case of doubt, benefit thereof must accrue in favour of accused as matter of right and not of grace. [P. 1016] F
2018 SCMR 772 and 2020 SCMR 857.
M/s. Umar Hayat Bhatti and Safdar Hussain Tarar, Ch. Nasim Riaz Gorsi, Advocates for Appellants.
Hafiz Asghar Ali, Deputy Prosecutor General for State.
Mr. M.A. Fatimi, Advocate for Complainant.
Date of hearing: 9.12.2021.
PLJ 2022 Cr.C. 1009
[Lahore High Court, Lahore
Present: Muhammad Tariq Nadeem, J.
versus
STATE--Respondent
Crl. A. No. 175139 & Crl. Rev. No. 187882 of 2018,
heard on 9.12.2021.
Judgment
Ghulam Mustafa (appellant) was tried by the learned trial Court in private complaint in respect of offences under Sections 302, 324, 337-A(iii), 148, 149, PPC. After conclusion of the trial, the learned trial Court vide its judgment dated 28.02.2018 has convicted and sentenced the appellant as infra:
Ghulam Mustafa
Under Section 302(b) PPC to life imprisonment for committing the murder of Akhtar Ali (deceased) and to pay compensation of Rs. 5,00,000/- under Section 544-A, Cr.P.C. to the legal heirs of deceased and in default thereof to further undergo six months S.I.
Benefit of Section 382-B, Cr.P.C. was also extended to him.
Feeling aggrieved, the appellant has filed the titled appeal against his convictions and sentences before this Court, whereas, criminal revision has been preferred by Khalid Mehmood petitioner for enhancement of sentence from life imprisonment to death and compensation amount adequately. Since common question of law and facts are involved, therefore, supra mentioned matters are being disposed of by means of this single judgment.
It is pertinent to mention here that earlier, on the complaint of complainant F.I.R. No. 506 dated 26.11.2016 under Sections 302/324, 148, 149, PPC was registered at Police Station Sadar Bhakar regarding the occurrence but being dissatisfied with the investigation of the police, the complainant filed the private complaint.
2. The facts of the case have been stated by Khalid Mehmood complainant (PW-9) in his statement before the learned trial Court, which is hereby reproduced for narration of the same:
"Ghulam Mustafa accused is my close relative. The agricultural land of said Ghulam Mustafa is adjacent to our agricultural land. On 26.11.2016, I along with Akhtar Ali my father, Muhammad Mushtaq my brother and Javed Iqbal s/o Asghar Ali were present in the agricultural land situated in Basti Chhina, village Shahani in connection with harvesting sugarcane crop. On the same day at about 04.15 p.m. accused Ghulam Mustafa armed with gun .12 bore, Mehmood-ul-Hassan armed with Danda, Hussain Ahmad armed with hatchet, Zia Ullah armed with Kassi and Nouman armed with Danda came there. Ghulam Mustafa accused chanted lalkara that they have come to teach a lesson to us for passing the tractor trolley from their wheat crop. In the meanwhile, Ghulam Mustafa accused made straight fire on Akhtar Ali my father hitting him on his abdomen. He gave second shot which hit me on my nose. On our hue and cry, all the accused persons managed their escape from the spot. I along with Akhtar Ali my father were shifted to
Motive behind the occurrence is that 10/15 minutes before this occurrence, an altercation took place in between Ghulam Mustafa and us for passing the tractor trolley from the wheat field, upon which all the accused persons while making unlawful assembly in furtherance of their common intention of Qatal-e-Amd fired on Akhtar Ali my father and upon me. On receipt of information regarding the occurrence police came there and I got recorded my statement Exh. PN which was read over and explained to me and thereafter, I signed the same in token of its correctness. Akhtar Ali my father was referred to
3. Arguments heard and record perused.
4. I have noted that along with Ghulam Mustafa appellant four other persons namely Mehmood-ul-Hassan, Hussain. Ahmad, Zia Ullah and Nauman were also implicated in this case who were declared innocent during the course of investigation and being dissatisfied with the police investigation Khalid Mehmood complainant (PW-9) filed the instant private complaint Exh. PP on 23.03.2017 with the delay of almost 04 months after the occurrence. Prosecution has not given any plausible reasoning qua such delay meaning thereby that the private complaint has been filed after due deliberations and consultations just to fill up the lacunas left in the FIR. I fortify my view from the dictum laid down in case law titled as "Muhammad Azad v. Ahmad Ali and two other" (PLD 2003 SC 14).
5. The ocular account in this case has been furnished by Khalid Mehmood, complainant (PW-.9) and Javed Iqbal (PW-.1). Both the PW-s are real son and paternal nephew of Akhtar Ali (deceased) respectively but during their Court statements, they have made blatant and dishonest improvements to their earlier statements. According to the contents of FIR Exh.CW-1/1 Ghulam Mustafa appellant made a shot from .12 bore gun which hit upon the abdomen of Akhtar Ali deceased and a pellet also hit on the nose of Khalid Mehmood complainant (PW-9) but while making dishonest improvements Khalid Mehmood complainant (PW-9) got recorded in his private complaint Exh. PP that Ghulam Mustafa appellant made .12 bore gun-shot which landed on the abdomen of Akhtar Ali deceased who made second fire shot which landed upon the nose of Khalid Mehmood complainant (PW-9) and thereafter same was his statement before the learned trial Court. It is pertinent to mention here that learned trial Court has disbelieved the evidence of Khalid Mehmood complainant (PW-9) with respect to his injury on his nose. Similarly Javed Iqbal (PW-10) had also recorded in his statement under section 161, Cr.P.C. Ex.DF the same story but while appearing before the learned trial Court he also made dishonest improvements and got recorded in his statement that Ghulam Mustafa made a fire shot at Akhtar Ali deceased which landed on his abdomen and he made second fire shot which hit on the nose of Khalid Mehmood complainant
(PW-9). The Hon'ble Supreme Court of Pakistan has observed in a plethora of judgments that a witness improves his statement and at the moment it is observed that the said improvement was made dishonestly to strengthen the prosecution, such portion of his statement is to be discarded out of consideration. All the circumstances highlighted above, lead me to irresistible conclusion that presence of eye-witnesses at the place of occurrence at the relevant time is not free from doubts and the prosecution has failed to prove its case against the appellant beyond reasonable doubt. Reference in this respect may be made to the judgments reported as "Hassan and others vs. The State and others" (PLD 2013 S.C 793), "Muhammad Mansha vs. The State" (2018 SCMR 772), "Muhammad Arif vs. The State" (2019 SCMR 631), and "Khalid Mehmood and another vs. The State and others" (2021 SCMR 810).
7. I have noted that according to the prosecution story Ghulam Mustafa appellant made a .12 bore gun shot upon the abdomen of Akhtar Ali (deceased). Dr. Waqar Azeem who medically examined Akhtar Ali (deceased) in injured condition on 26.11.2016, found following injury on his body which is reproduced as under:
"A fire-arm entry wound of size .5 x .5 cm. Margins are inverted. Blackening present, just above umbilicus. KUO for X-ray clinical assessment."
It is noteworthy that Dr. Muhammad Shoaib (PW-7) who medically examined Khalid Mehmood complainant (PW-9) in injured condition noted following injury on his body.
He (PW-7) has narrated in his examination-in-chief with respect to the injury of Khalid Mehmood complainant (PW-9) that injury was caused by some blunt weapon may be fire-arm. He further narrated in his cross-examination that no blood was stained on the cloth of injured and Investigating Officer did not mention in the injury statement that the clothes of injured was stained with blood. He further admitted in his cross-examination that it is correct according to the report of PFSA Exh. PI, no gun shot residue analysis proved. If Khalid Mehmood complainant (PW-9) had sustained injury by fire shot of gun .12 bore, there must has been bleeding. A reference in this respect may be made to the case of Muhammad Mehboob vs. The State (2021 SCMR 366).
8. Much stressed has been laid on the statement of Khalid Mehmood complainant/injured witness (PW-9) who acclaimed to have received fire-arm injury during the occurrence. It was pressed hard by the prosecution that injury on the person of said PW- is conclusive proof of his presence at the spot, thus, his testimony is destined to be accepted, even without scrutinizing it on the touch stone of corroboration. I feel it essential to mention here that though the fire-arm injury is present on the person of PW- indicate his presence at the spot, however it is not a conclusive proof of what he deposed before the Court is true. As per settled principles laid down for appraisal of evidence, even the testimony of injured witness is to be subject to scrutiny, for making it basis of conviction. While holding so, I am guided by the observation of the Honorable Supreme Court of Pakistan expressed in the case of "Nazir Ahmad vs Muhammad Iqbal and another" (2011 SCMR 527), which is as under:
"It is settled law that injuries of PW- are only indication of his presence at the spot but are not affirmative proof of his credibility and truth".
9. It is significant to point out here that Ghulam Mustafa appellant was also injured and he sustained nine injuries on his person which fact is corroborated from his Medico-legal Certificate Exh. DC but the prosecution has ostensibly suppressed his injuries, in this way, evidence of prosecution is not truthful and reliable.
As I have already disbelieved the ocular account in supra mentioned paragraphs of this judgment, therefore, recovery of gun .12 bore at the pointation of appellant is of no avail to the prosecution because the recovery of weapon of offence is only a corroborative piece of evidence, and it settled proposition of law that conviction cannot be based merely on the corroborative piece of evidence. Reliance is placed upon the case titled as "Noor Muhammad vs. The State" (2010 SCMR 97).
12. It is an established principle of law and equity that it is better that 100 guilty persons should let off but one innocent person should not suffer. As the prominent English jurist William Blackstone Wrote "Better that ten guilty persons escape, than that one innocent suffer". Benjamin Franklin, who was one of the leading figures of early American history, went further arguing "it is better a hundred guilty persons should escape than one innocent person should suffer". Reliance is also placed upon the case-law reported as Ayub Masih vs. The State (PLD 2002 SC 1048) and Najaf Ali Shah vs. The State (2021 SCMR 736).
"4. ... Needles to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better than ten guilty persons be acquitted rather than one innocent person be convicted. Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muhammad Akram v. The State (2009 SCMR 230) and Muhammad Zaman v. The State (2014 SCMR 749) ..."
Similar view was taken in the case of "Muhammad Imran vs. The State" (2020 SCMR 857). Relevant part of the said judgment at Para No. 5 reads as under:
"... It is by now well settled that benefit of a single circumstance, deducible from the record, intriguing upon the integrity of prosecution case, is to be extended to the accused without reservation; the case is fraught with many. It would be unsafe to maintain the conviction ..."
Reference can also be made to the cases of Najaf Ali Shah vs. The State (2021 SCMR 736) & The State through P.G. Sindh and others vs. Ahmed Omar Sheikh and others (2021 SCMR 873).
15. As a natural corollary, criminal revision filed by Ismail, complainant for enhancement of sentence from life imprisonment to death and compensation amount adequately stands dismissed.
(A.A.K.) Appeal allowed
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