-In such eventuality, photographic narration of incident by eye-witnesses attributing each injury individually to each 6f accused appellant, and co-accused in an t extrerne crisis and panic situation is not only improbable arid unbelievable rather shatters their credibility-

 PLJ 2022 Cr.C. 818 (DB)

Pakistan Penal Code, 1860 (XLV of 1860)--

----S. 302(b)--Conviction and sentence--Challenge to--Qatl-e-amd--Benefit of doubt--Motive of occurrence in civil litigation--FIR was lodged with delay of 2-3 hours--In such eventuality, photographic narration of incident by eye-witnesses attributing each injury individually to each 6f accused appellant, and co-accused in an t extrerne crisis and panic situation is not only improbable arid unbelievable rather shatters their credibility--Names of accused are not mentioned specifically in both site plans which also do not show houses of eye-witnesses around place of occurrence--They were chance witnesses, but have failed to establish their presence at time of occurrence at place of occurrence with their stated reasons--Motive of occurrence is civil litigation which is double edged weapon and can cut both ways--In present case if alleged motive could proper appellant into aggression against deceased, at same time it is equally possible that same background of enmity could prompt above mentioned eye-witnesses to falsely implicate present appellant and his co-accused (since acquitted) in this case so we do not believe this motive--Appeal accepted.

                                                                      [Pp. 821 & 822] A, B & C

2019 SCMR 2006, 2014 SCMR 1698 & 2005 YLR 1629.

Benefit of doubt--

----Principle--It is settled principle of law that for giving benefit of doubt, it is not necessary that there should be many circumstances creating doubt--If there is a circumstance which creates reasonable doubt in prudent mind about guilt of accused, then he would be entitled” to its benefit not as a matter of grace or concession, but as of right. [P. 822] D

2009 SCMR 230.

Sardar Khurram Latif Khan Khosa, Advocate for Appellant.

Mr. Tayyab Shakoor Rana, Advocate for Complainant.

Mr. Munir Ahmad Sial, DPG for State.

Date of Hearing: 19.1.2021.

PLJ 2022 Cr.C. 818 (DB)
[Lahore High Court, Lahore]
Present: Sadaqat Ali Khan and Shehram Sarwar Ch., JJ.
AAMIR ABBAS--Appellant
versus
STATE--Respondent
Crl. A. No. 30981, M.R. No. 331 & PSLA No. 46413 of 2017,
heard on 19.1.2021.

Judgment

Sadaqat Ali Khan, J.--Appellant Aamir Abbas alongwith Ahmad Nawaz, Irfan Abbas, Imran Abbas, Mst. Razia Parveen, Muhammad Nawaz and Allah Nawaz co-accused (since acquitted) has been tried by learned trial Court in private complaint under Sections 302, 109, 34 PPC arising out of case FIR No. 257 dated 09.07.2015 Police Station Saddar, District Bhakkar and was convicted and sentenced, vide judgment dated 29.04.2017 as under:

Aamir Abbas appellant

U/S. 302 (b), PPC Sentenced to death as Tazir for committing Qatl-i-Amd of Khawar Abbas deceased with compensation of Rs. 4,00,000/-payable to the legal heirs of deceased under Section 544-A, Cr.P.C. and in default whereof to further undergo simple imprisonment for six months.

2. Appellant has filed this criminal appeal against his conviction and learned trial Court has sent Murder Reference for confirmation of his death sentence or otherwise, whereas Mukhtiar Hussain complainant filed PSLA against the acquittal of respondents/accused, which are being decided through this single judgment.

3. Brief facts of the case have been stated by Mukhtiar Hussain complainant P.W. 10 in his statement before the learned trial Court, which is hereby reproduced for narration of the facts:

I am resident of Mohallah Alam Abad and run a grocery shop there. I have eight children. Ahmad Nawaz accused/ Respondent No. 1 is my “Bahnoi” Irfan Abbas, Imran Abbas, Aamir Abbas are my “Bhanjgan”. Mst. Razia Parveen accused is my real sister, whereas Muhammad Nawaz and Allah Nawaz accused are the real brothers of Ahmad Nawaz accused. On 9.7.2015, at about 6.45 p.m. Khawar Abbas my son went to Jhakar Nashaib in the land of Haji Mehboob Hussain for cutting grass for cattle. I alongwith Habib Hussain and Nazar Abbas my brothers were already present there in the land of Ahmad Bakhsh Gorchah while cutting the grass. As soon as my son Khawar Abbas reached there, suddenly Ahmad Nawaz s/o Ghulam Shabbir, Irfan Abbas, Aamir Abbas and Imran Abbas sons of Ahmad Nawaz all armed with pistols 30 bore emerged there, who had hidden themselves in the corn (Makai) grass. They came outside the corn grass while raising lalkara to Khawar Abbas my son that they will teach him a lesson for cases of his father and dispute of land in between them as well as his father. In the meantime, Ahmad Nawaz accused made fire on Khawar Abbas my son, which hit him on his right wrist. Khawar Abbas my son ran, Irfan Abbas accused made fire from his pistol on Khawar Abbas which hit him above his left hip joint (Koolha). Imran Abbas accused made fire on my son which hit on his right wrist. The second fire shot was made by accused Ahmad Nawaz which hit on middle of back of my son. Aamir Abbas accused made fire at Khawar Abbas my son which hit him on front of his forehead on left side. Khawar Abbas my son fell down. I alongwith Habib Hussain and Nazar Abbas my brothers ran towards my son Khawar Abbas and witnessed the occurrence themselves. All the above said accused persons while brandishing their weapons fled away from the spot on our arrival. I, Habib Hussain and Nazar Abbas attended Khawar Abbas my son, who succumbed to the injuries at the spot.

4. Arguments heard. Record perused.

5. Khawar Abbas was done to death on 09.07.2015 at 6:45 p.m. on the passage, FIR was lodged on the same night i.e. 09.07.2015 at 9/10 p.m. on the statement Ex.P.D made by his father Mukhtiar Hussain complainant P.W. 10 who alongwith his brother Habib Hussain P.W. 11 while claiming themselves to be the eye-witnesses of the occurrence stated in their statements before the learned trial Court regarding roles of the accused that Aamir Abbas appellant made fire shot with pistol 30-bore which hit on the left side of forehead of Khawar Abbas deceased, Ahmad Nawaz, Irfan Abbas and Imran Abbas accused (since acquitted) have also been attributed specific firearm injuries on the person of the deceased, but during investigation it transpired that they were not present at the time of occurrence at the place of occurrence and have not participated in the occurrence, nothing was recovered from them during interrogation conducted by Ghulam Shabbir S.I./I.O. of the case C.W.I as stated by him in his cross-examination. These three accused have been acquitted by the learned trial Court through the impugned judgment. Even otherwise, considering the peculiar circumstances of this case, we are of the view that occurrence took place in the dark hours of night but prosecution had wrongly shown time of occurrence as 6:45 p.m. on 09.07.2015 whereafter FIR was lodged on 4 09.07.2015 at 9/10 p.m. with the delay of 2-3 hours. In such eventuality, photographic narration of the incident by the eye-witnesses attributing each injury individually to each of the accused i.e. Aamir Abbas appellant, Ahmad Nawaz, Imran Abbas and Irfan Abbas co-accused in an extreme crisis and panic situation is not only improbable and unbelievable rather shatters their credibility. Reliance is placed on case titled “Muhammad Ahmed and others vs. The State and others” (2019 SCMR 2006).

6. Names of the accused are not mentioned specifically in both the site plans Ex.C.W. 1/1 and Ex.P.A., which also do not show the houses of the eye-witnesses around the place of occurrence. They were the chance witnesses, but have failed to establish their presence at the time of occurrence at the place of occurrence with their stated reasons. Reliance is placed on case titled “Muhammad Rafique vs. The State” (2014 SCMR 1698).

7. Motive of the occurrence is civil litigation which is double edged weapon and can cut both ways. In the present case if the alleged motive could proper the appellant into aggression against Khawar Abbas deceased, at the same time it is equally possible that the same

background of enmity could prompt the above mentioned eye-witnesses to falsely implicate the present appellant and his co-accused (since acquitted) in this case so we do not believe this motive. Reliance is placed on case “Shamsher Ali v. The State” (2005 YLR 1629).

8. Ghulam Shabbir S.I. C.W.I stated in his statement before the learned trial Court that on 07.08.2015, Aamir Abbas appellant during interrogation disclosed and got recovered pistol 30-bore P-3 wrapped in polythene from maize crop of Haji Mehboob” which is an open place and accessible to everyone, hence, this recovery is not believable.

9. In view of the above discussion, we entertain serious doubt in our minds regarding participation of the appellant and acquitted accused mentioned above in the present case. It is settled principle of law that for giving benefit of doubt, it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in the prudent mind about the guilt of the accused, then he would be entitled to its benefit not as a matter of grace or concession, but as of right. Reliance is placed on case reported as “Muhammad Akram vs The State” (2009 SCMR 230).

10. For the foregoing reasons, instant criminal appeal is accepted, conviction and sentence of the appellant awarded by the learned trial Court through the impugned judgment are hereby set aside. Aamir Abbas appellant is acquitted of the charge, he is directed to be released forthwith if not required in any other case. Murder Reference is answered in NEGATIVE and death sentence of appellant (Aamir Abbas) is NOT CONFIRMED.

11. In view above decision, PSLA filed by the complainant against acquittal of respondents/accused having no merits is dismissed.

(A.A.K.)          Appeal accepted