PLJ 2022 Cr.C. 1141
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conviction and sentence--Challenge to--Benefit of doubt--Qatl-i-amd--Credibility of witness--When a sibling was attacked and seriously injured, brothers would be mute spectators and continue to watch spectacle without even making an effort to save injured--The first instinct in such emergencies would be to be with injured and rush him to hospital so that no time is lost--But in fact, no effort was made by PW-2 to shift injured to hospital not reported incident to police--Thus, examination of entire evidence creates a serious doubt about truthfulness and trustworthiness of evidence of eye-witnesses--Complainant as per complaint went to police station for reporting incident but before visiting police station, complainant got prepared application for registration of criminal case from some computer shop, whose name was not known to him--Even complainant had not given any explanation regarding delay in lodging report and about preparation of complaint, in complaint as well as in his statement before trial Court, therefore, in these circumstances chance of consultations and deliberations, on part of complainant, cannot be ruled out--It also creates dent in prosecution case--Prosecution has failed to establish its case--It seems that truth was seen buried under debris and a different story was structured perhaps to lug appellant into trial under serious offence--It is often said "that Fouler crime higher degree of proof have gone through process of keen examination of entire material and found compelling reasons as stated above to disgrace with conclusion reached/recorded by Additional Sessions Judge and also found that prosecution has miserably failed to prove guilt of accused-appellant beyond reasonable doubt--Appeal accepted.
[Pp. 1148 & 1150] A, B, C & D
2009 SCMR 230.
Malik Muhammad Rafique, Advocate for Appellant.
Mr. Muhammad Akhlaq, D.P.G for State.
Mr. Falak Sher Gill, Advocate for Complainant.
Date of hearing: 10.2.2022.
PLJ 2022 Cr.C. 1141
[Lahore High Court, Lahore]
Present: Miss Aalia Neelum, J.
FARYAD ALI--Appellant
versus
STATE etc.--Respondents
Crl. A. No. 43688 of 2017, heard on 10.2.2022.
Judgment
Appellant-Faryad Ali son of Jamandar, Caste Malik, resident of Chak No. 119-J.B Rasoolpur Faisalabad was involved in case F.I.R. No. 1054/2014, dated 23.11.2014, offence under Sections 302, 148, 149, PPC, registered at Police Station Millat Town, District Faisalabad and was tried by the learned Additional Sessions Judge, Faisalabad. The learned trial Court seized with the matter in terms of judgment dated 29.04.2017 convicted the appellant under Section 302-B, PPC and sentenced him to undergo imprisonment for life with the direction to pay Rs. 1,00,000/- as compensation to the legal heirs of deceased and in case of default in payment, the appellant would further undergo simple imprisonment for 06 months. The benefit of Section 382-B, Cr.P.C. was also extended in favour of the appellant. The appellant has assailed his conviction through filing instant criminal appeal.
2. The prosecution story as alleged in the F.I.R. (Ex.PA/1) lodged on the complaint (Ex.PA) of Muhammad Imran (PW-1) is that on 10.11.2014 at about 05:30 p.m. his cousins-Naseer Ahmad and Azam (given up PW) went to cattle shed of village in order to untie their cattle, where, scuffle took place between their cousins and Farooq. In the meanwhile, Faryad and Javed came there and interfered in the matter. They were stopped but they after extending serious threats went to their house. Upon receiving of information, the complainant along with Idrees (PW-3) and Sohail reached the spot and matter was resolved with Farooq and Naseer etc. When they reached near the house of Faryad etc, they came ahead of complainant party and started firing with respective weapons. Accused Faryad with rifle made a direct fire which hit upon right flank and abdomen of Naseer. Accused Javed made a fire with his pistol which hit upon right thigh of Naseer. Accused Imran and two unknown accused started indiscriminate firing and also raised lalkara that if anyone would come near they would kill him. People present there saved their lives by hiding themselves. Naseer Ahmad was seriously injured and Farooq was also injured. On the basis of scuffle between complainant party and Farooq, accused persons committed firing upon them.
3. After registration of case, the investigation of this case was entrusted to Asghar Ali S.I (PW-16), who having found the accused/appellant guilty, prepared report under Section 173, Cr.P.C. and sent the same to the Court of competent jurisdiction. On 01.03.2016, the learned trial Court formally charge sheeted the appellant to which he pleaded not guilty and claimed trial. The prosecution in support of its version produced as many as eighteen (18) prosecution witnesses, whereas, Farooq Ahmad appeared as C.W-1.
4. The appellant was also examined in terms of Section 342, Cr.P.C., wherein the appellant opted not to lead defence evidence and also refused to appear as his own witness in disproof of the allegations levelled against him. In response to a particular question why this case was against him and why PWs had deposed against him, Faryad Ali (the appellant) made following deposition:
"I am innocent and has been falsely implicated in this case, out of some extraneous, reason as well as political rift and also to teach a lesson to me for occupying the land of village pound which the complainant party intended to grab for the development of colony for the purpose of sale by plotting the land. The complainant and P.Ws are related and interested inter-se. Due to relation and interse interest complainant and P.Ws inimical towards me. It is further added that one Farooq Ahmad son of Maqbool Ahmad the then resident of the village sustained fire shot injuries on his person at the hand of complainant party, his name was placed as prosecution witness in report u/S. 173, Cr.P.C. but the prosecution did not get recorded his statement as prosecution witnesses rather he was summoned as Court witness by this Honourable Court and recorded his statement as C.W.1 where in he stated that on 10.11.2014 at 05:30 pm complainant had occupied his land, the complainant party made plotting for colony in the shape of three-four and five marlas, the complainant party had also earlier occupied his four marlas land. Court witness also stated before this Court while recording his evidence that he took up piece of brick and started removing hooks from the land at that time firstly Naseer Ahmad came to him who started scuffling with, him then 14 persons came armed, with weapons and that out of them Azam, Kashif, Sajid, Nadeem, Ghulam Beeg, his son, Siddique alias Borra, Mansoor along with his three sons, Sajid and three unknown persons to whom, he could identify and that they were making firing on that no person came close to him. He also deposed before honourable Court that Kashif was holding two pistols in his two hands who started firing which hit upon his belly and left area of Naseer Ahmad and that thereafter Azam touched pump action against his thigh made a fire upon him which hit on his right thigh. He also stated that the occurrence was day light, nobody came forward to save him and he received number of injuries on different parts of his body. He also deposed that Faryad, Javed and Imran, mentioned as accused of the occurrence by the complainant party, were not present at the spot. On the basis of above stated circumstances. Above said Farooq C.W.1 appeared, before this honourable Court at the time of disposal of my post arrest bail application, he tendered his affidavit Ex.P.E, at the time of his statement as CW-1 he accepted the contents of Ex.PE. The prosecution has miserably failed, to prove its case rather the statement of CW-1 jolted the whole false and fabricated version of the prosecution. "
5. The learned trial Court after recording evidence and evaluating the evidence available on record in the light of the arguments advanced from both sides, found the prosecution version proved beyond any shadow of reasonable doubt, which resulted into conviction of the appellant in the afore stated terms.
6. I have heard the arguments advanced by the learned counsel for the parties as well as learned Deputy Prosecute General and have minutely perused the record available on the file.
7. It is glaring on the face of the record that the occurrence had taken place on 10.11.2014 at 05:30 p.m. in the area of Chak No. 119- J.B. falling within the jurisdiction of Police Station Millat Town, District Faisalabad, which is at a distance of five (05) kilometer from the place of occurrence. Whereas formal F.I.R. (Exh.PA/1) was got registered on 23.11.2014 at 08:40 a.m., on the written complaint (Exh.PA) of Muhammad Imran (PW-1) the complainant, cousin of the decease Naseer Ahmad, made on 21.11.2014 (written at right side before police proceedings) and at the bottom of police proceedings at 08:40 a.m. on 23.11.2014 at Saim Bawa Chak. It is notable that occurrence took place at 05:30 p.m. on 10.11.2014 and distance between the Saim Bawa Chak and the place of occurrence was at the distance of 25/30 minutes, whereas Muhammad Imran (PW-1)-the complainant took eleven (11) days in reporting the incident if written complaint (Exh.PA) was received on 21.11.2014 and it becomes delay of thirteen (13) days if incident was reported to police on 23-11-2014. FIR (Ex.PA/1) was not registered on 23.11.2014 at 09:00 a.m. Muhammad Imran (PW-1) the complainant deposed during cross-examination that:
"Occurrence is of 10/11/2014 at about 05:30 p.m. I moved application No. 1746/5 MT dated 21.11.2014 before SHO which was entrusted to Muhammad Najamul Hassan ASI for interrogation. It is incorrect to suggest that police conducted inquiry on the said application from 21.11.2014 to 23.11.2014. Volunteer said application was marked to Najamul Hassan on 23.11.2014 and on the same day i.e. 23.11.2014 FIR was registered. I moved application at police station on 21.11.2014 and again received back on 22.11.2014 and handed over to Najamul Hassan ASI on 23.11.2014. on 21.11.2014 SHO did not meet me. I delivered application on 21.11.2014 in the office of police station. On 22.11.2014 I received said application from same office of police station. I cannot tell name and designation of police official to whom application was given and later on received back. SHO did not meet me on 22.11.2014. I did not make any effort to contact SHO from 21.11.2014 to 22.11.2014 because I was busy in hospital. It is incorrect to suggest that I have deliberately improved my statement to the extent of being busy in the hospital. Said application remained with me since 22.11.2014 to 23.11.2014 till same was given to Najamul Hassan ASI at SAIM Bawa Chak"
Najamul Hassan ASI (PW-10)-investigating officer deposed during cross-examination that:
"I did not receive any message of call from U.C Gashat, wireless operator, Moharrar of police station and from 15 office from 10.11.2014 till receipt of application (Ex.PA)--I remained in touch and contact with SHO concerned from 10.11.2014 to 22.11.2014--I did not prepare injury statement of deceased then injured. On 23.11.2014, I was present at Saim Bawachak in front of police post Bawachak when complainant produced application (Ex.P.A.) for registration of case which marked on 21.11.2014. Police post may be at a distance of 15/20 feet from Saimbawachak where I was present at the time of receiving application (Ex.P.A)"
Muhammad Idress (PW-3) eye-witness and cousin of deceased, deposed during cross-examination that:
"I went to Hospital after about 30/60 minutes of happening of occurrence. I do not know police visited the hospital or not. Imran informed the police regarding the occurrence. Imran informed police regarding occurrence on 21.11.2014. It is in my knowledge that FIR was lodged regarding the occurrence. On 22.11.2014 complainant Imran met me at Hospital. Imran did not tell me about the application for registration of case. I along with Imran went to SAIM Bawachak. Sohail was also with us where one ASI and ¾ police constables were present. I cannot tell that for how many time from the period of 10.11.2014 to 23.11.2014 police visited us. I cannot rebut this suggestion that police used to visit Hospital and also met deceased the then injured because I did not see police there. I, Nasir, Tajammal, Imran, Nadim, Sarfraz also remained at Hospital while at emergency. Imran complainant and Amaar, Nadim and Azam PWs remained present being attendance near the bed of deceased.
Complainant party got no landed agricultural property. Land of complainant party is in Chak No. 37 near Shorkot Cantt. Azam P.W also got 15/20 years."
Najamul Hassan ASI (PW-10)-investigating officer, who after registration of FIR (Ex.PA/1) went to Allied Hospital, Faisalabad, could not get the statement recorded from the injured Naseer Ahmad. Najamul Hassan ASI (PW-10)-investigating officer miserably failed to take steps to record statement of Naseer Ahmad (then injured). Najamul Hassan ASI (PW-10)-investigating officer deposed during cross-examination that:
"On 23.11.2014 I had visited emergency ward of Allied Hospital. I did not mention reference of visiting emergency ward of Allied Hospital on 23.11.2014. I did not move any application before M.O for recording statement of deceased as well as his condition to make statement. Volunteer M.O informed that deceased was not in a position to rcrecord his statement--I did not record statement of M.O nor joined him into investigation"
The prosecution has failed to establish that Naseer Ahmad (then injured) was not fit to give the statement. Dr. Riaz-ul-Hassan (PW-14), who medically examined Naseer Ahmad on 10.11.2014 at 06:00 p.m., deposed during cross-examination that:
"His MLC was issued to Muhammad Imran cousin of Naseer Ahmad. At that time Naseer Ahmad then injured was able to record his statement. Naseer Ahmad deceased did not mention name of any accused while describing history of flight--There is no request available on record lying with me where I.O requested to record statement of deceased the then injured"
Whereas, Muhammad Imran (PW-1)-the complainant deposed during cross-examination that:
Deceased then injured was hospitalized after about 30/45 minutes of the happening of occurrence. Deceased then injured was not concious"
8. In similarly lines, Muhammad Nadeem (PW-2), eye-witness and brother of the deceased, and Muhammad Idress (PW-3), eye-witness and cousin of the complainant, deposed. This Court has also noted that as per prosecution version Muhammad Nadeem (PW-2), brother of the deceased, was also eye-witness of the occurrence. Muhammad Nadeem (PW-2)'s conduct in not accompanying his injured brother, shows callousness and was highly unnatural. If a reasonable man witnesses a crime, involving his brother, his first instinct would be to take him to the nearest hospital; he did not go there nor reported the incident to police. Muhammad Nadeem (PW-2) deposed during cross-examination that:
"I did not go to Hospital. I did not go to police check post as well as to police station. I cannot tell that when deceased reached hospital. I went to hospital on the second day from the day of occurrence. Deceased Naseer Ahmad was my real brother. Again said I have been visiting hospital but did see my brother on the next day. I met complainant Imran at hospital on the day of occurrence--After occurrence I remained whole night in the hospital. I do not know when police for the first time visited hospital. I cannot tell whether police visited the hospital or not? I remained at hospital for a month with my deceased brother. I cannot tell that police ever visited hospital. I cannot tell that police ever visited hospital or not? Imran complainant informed police regarding the occurrence. I cannot tell after which time of occurrence police was informed by Imran complainant. When my brother died on the said day I alongwith Azam and Imran went to police station. I have been meeting with Imran complainant at hospital since 10.11.2014 to 23.11.2014. I did not inquire from Imran complainant that he lodged FIR or not and neither Imran himself told me that he got registered FIR or not. Police did not meet me from the day of occurrence till the death of my deceased brother"
9. There is another aspect of the case which makes prosecution case doubtful. Najamul Hassan ASI (PW-10)-investigating officer deposed during examination-in-chief that:
"On 15.12.2014 injured P.W Naseer Ahmad and Muhammad Imran complainant recorded their statements under Section 161, Cr.P.C."
As per prosecution case Naseer Ahmad died on 22-12-2014 after forty-three (43) days of the occurrence. Muhammad Imran (PW-1)-the complainant denied the suggestion that on 15-12-2014 the health condition of deceased deteriorated and he lost his senses. Whereas, Nasir Khan (PW-4), who identified dead body and cousin of deceased, deposed during cross-examination that:-
"The condition of deceased became further deteriorated 4/5 days before his death"
Dr. Nasir Ali (PW-12) deposed during cross-examination that:-
"The time elapsed between injuries and death is 43 days. As per record date of deceased did not occur during his hospitalization. After discharge deceased was shifted from Hospital to his House where he had been died"
Masood Hashmat S.I. (PW-17) (dismissed from service) deposed during cross-examination that:
"On 09.12.2014 Naseer Ahmad deceased the then injured was discharge from hospital. I was informed regarding the death of Naseer Ahmad deceased on 22.12.2014. During the period of 09.12.2014 to 22.12.2014 neither complainant party nor I myself collected treatment record of deceased. I did not join any Doctor into investigation during my period of investigation. I did not collect any discharge slip of deceased. I did not inquire regarding the health condition of deceased from his treatment in hospital till his discharge. I did not conduct any investigation regarding the delayed registration of FIR."
Prosecution witnesses have not deposed that where Naseer Ahmad took his last breath on 22-12-2014. In Column No. 1 and on the last page of inquest report (Ex.PT) place where dead body was laying and inquest report was prepared at Chak No. 119-J.B. Rasool Pur. Masood Hashmat S.I. (PW-17) (dismissed from service) deposed during cross-examination that:
"I went to the house of Naseer Ahmad deceased and observed that dead body of deceased and prepared injury, statement (Ex.P.S) and inquest report (Ex.P.T)
This creates serious doubt about the genuineness of the prosecution story. So no reliance can be placed on such testimony to establish the guilt of the appellant, which would form the basis for conviction.
10. The scribe of the complaint (Exh.PA) is not known even to the complainant (PW-1). The deposition of the complainant (PW-1), proves nothing substantial except that the complainant (PW-1) signed the information, (Exh.PA) and after drafting application for registration of case from computer shop went to Bawa Chak post and presented the same at 08:40 a.m., on receipt whereof, the F.I.R. was registered. Muhammad Imran (PW-1)-the complainant deposed during cross-examination that:
"I got dictated application (Ex.P.A) from computer shop at Bawachak. I cannot tell name of scribe as well as name of computer shop. I did not point out said computer to I.O. I cannot tell time of dictating
"Benefit of doubt....Principles---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".
12. The upshot of the above discussion is that the prosecution had badly failed to bring home charge against the appellant beyond any reasonable doubt, therefore, in the interest of safe administration of Criminal Justice, Crl. Appeal No. 43688 of 2017 filed by Faryad, appellant is accepted in toto. Conviction and sentence recorded by the learned trial Court vide judgment dated 29.04.2017 is set aside as a
consequence whereof, Faryad Ali son of Jamandar, appellant is ordered to be acquitted of the charge in case F.I.R. No. 1054/2014, dated 23.11.2014, offence under Sections 302, 148, 149, P.P.C., registered at Police Station Millat Town, District Faisalabad and he is directed to be released forthwith, if not required in any other criminal case.
(A.A.K.) Appeal accepted
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