PLJ 2022 Cr.C. 1259 (DB)
Pakistan Penal Code, 1860 (XLV of 1860)--
---S. 302--Conviction and sentence--Challenge to--Complainant is not the eye witness--Acquittal of--Complainant who does not claim himself to be the eye-witness of the occurrence--A person whose name was not known made a call to 1122 which reached the spot and took the injured to the hospital--On the call of one “W” (not PW), he along with EMT and driver of ambulance reached Highway ground, collected the dead body from the ground--Emergency call form and emergency response call are attested copies of original record which he brought along with him before the trial Court--Witness has not stated that both the PWs were present with the dead body at the time of its shifting, meaning thereby that both the eye-witnesses were not present at the place of occurrence at the time of occurrence--Rough site plan and scaled sit plan do not show the houses of both the eye witness who were the chance witness--Crime empty was received in the office on after the arrest of the appellant--He is acquitted the charge--Appeal allowed.
[Pp. 1262, 1263 & 1264] A, B, C, D & E
2017 SCMR 564; 2014 SCMR 1698 ref.
M/s. Javed Iqbal Bhatti, Muhammad Fayyaz Mansab Sukhera, Mehr Habib Ullah Garwah, Sajjad Hussain Bhutta, Advocates for Appellant.
M/s. Ghulam Muzammil Thaheem and Muhammad Yaseen Thaheem, Advocates for Complainant.
Syed Nadeem Haider Rizvi, DDPP for State.
Date of hearing: 8.9.2021.
PLJ 2022 Cr.C. 1259 (DB)
[Lahore High Court, Multan Bench]
Present: Sadaqat Ali Khan and Shehram Sarwar Ch., JJ.
NADEEM IQBAL--Appellant
versus
STATE etc.--Respondents
Crl. A. No. 878 & M.R. 163 of 2016, heard on 8.9.2021.
Judgment
Sadaqat Ali Khan, J.--Appellant Nadeem Iqbal along with his co-accused Nouman Haider (since acquitted) has been tried by learned trial Court in case FIR No. 346 dated 07.06.2013 offence under Section 302/34, PPC registered at Police Station City Layyah, District Layyah and was convicted and sentenced vide judgment dated 28.11.2016 as under:
Nadeem Iqbal (appellant)
U/S. 302(b), PPC Sentenced to death for committing Qatl-i-Amd of Muhammad Hamza Khan (deceased) with compensation of Rs. 2, 00, 000/-payable to the legal heirs of deceased U/S. 544-A, Cr.P.C. and in default whereof to undergo simple imprisonment for 6-months.
2. Appellant has filed criminal appeal against his conviction and learned trial Court has sent Murder Reference for confirmation of his death sentence or otherwise, which are being decided through this single judgment.
3. Brief facts of the case have been stated by complainant Muhammad Hasham Khan (P.W. 12) in his statement before the learned trial Court, which is hereby reproduced as under for narration of the facts:
I have shop namely Hasham Motors at Choubara Road, Layyah near Piracha Petrol Pump. On 07.06.2013 at about 07.30 p.m. my deceased son Muhammad Humza Khan aged 17/18 years along with Muhammad Umair Ali Khan went to Gymnasium on motor cycle for doing exercise. After "Isha" prayer, I received information that my deceased son had received Fire shot and he had been taken to DHQ Hospital, Layyah on Rescue 1122. I reached the hospital and saw that my deceased son Muhammad Humza Khan had succumbed to the injuries. My son Muhammad Umair Ali Khan told me that when they reached Gymnasium then deceased Muhammad Humza Khan received mobile call from accused Nadeem Iqbal s/o Khuda Bukhsh present in Court and after hearing the call, deceased Muhammad Humza Khan told Muhammad Umair Ali Khan that he will come back after meeting with Nadeem Iqbal. Muhammad Umair Ali Khan further told me that after much time, deceased Muhammad Humza Khan did not return and he made many calls on mobile phone of Muhammad Humza Khan which were not attended. Ultimately, his one call was attended and on the last call, Muhammad Umer Khan his cousin told Muhammad Umair Khan that accused Nadeem Iqbal along with his friend had fired at Muhammad Humza Khan deceased and had run away from the spot. Muhammad Umer Khan further told Muhammad Umair Ali that Rescue 1122 had reached the spot and that they were taking Muhammad Humza Khan in injured condition to DHQ Hospital, Layyah. Muhammad Umair Ali Khan reached the hospital and he then informed me. Muhammad Umair Ali Khan further told me that Muhammad Umer Khan s/o Haji Ahmad Khan Caste Awan, Imtiaz Ahmad Tariq s/o Noor Muhammad, Caste Klasra r/o Chak No. 160-C/TDA told Muhammad Umair Ali Khan that both of them were walking on eastern bank of Layyah Minor on metalled road and were going towards Layyah Minor Bridge and they heard much hue and cry on Highway Ground and both of them went to the ground and in their view, accused Nadeem Iqbal who was already known to them made fire of pistol on deceased Muhammad Humza Khan who after receiving injury fell on the ground and accused Nadeem Iqbal while riding on motor cycle along with his friend decamped towards the west and while going accused Nadeem Iqbal threatened if any one intervened, he would kill them. Muhammad Umair Khan further told me that PWs Muhammad Umer Khan s/o Haji Ahmad Khan and Imtiaz Ahmad Tariq s/o Maher Manzoor Ahmad further told him that a person present there not known to them rang to Rescue 1122 which reached on the spot and they took immediately Muhammad Humza Khan to the hospital but due to injury, he could not survive. The motive behind the occurrence was that Muhammad Umair Ali Khan told me that in his presence and in presence of Javaid Iqbal s/o Maher Khuda Bukhsh Klasra and Muhammad Umair Ali Khan in family park, accused Nadeem Iqbal daily threatened Muhammad Humza Khan to leave friendship with boys of Mohalla Manzoor Abad otherwise accused Nadeem Iqbal would severely punish Muhammad Humza Khan. Accused Nadeem Iqbal deceitfully called Muhammad Humza Khan on his mobile phone and murdered him. I made statement to the police which is Ex-PE and I signed the same in token of its correctness. My son had been murdered without any justification.
4. After hearing learned counsel for the parties, learned DDPP and on perusal of record with their able assistance, we have observed as under:
i) Muhammad Hamza Khan aged about 17/18 years was done to death after "Isha Prayer" on 07.06.2013 at Highway ground, FIR was lodged on the same night at 10:10 p.m. on the statement of his father Muhammad Hasham Khan complainant P.W. 12, who does not claim himself to be the eye-witness of the occurrence. Muhammad Umar Khan P.W. 14 (cousin of Muhammad Hamza Khan deceased) and Imtiaz Ahmad Tariq P.W. 15 (maternal uncle of the deceased) while claiming themselves to be the eye-witnesses of the occurrence stated in their statements before the learned trial Court that on the night of occurrence, they were going to Layyah Minor on "Pacca" road, heard hue and cry and voices of abuses from the nearby adjacent Highway ground, went there, in their view, appellant (close friend of Muhammad Hamza Khan deceased) made fire Shot Which hit him (seat of injury has not been mentioned) whereafter appellant along with Nouman Haider co-accused (since acquitted) fled away on motorcycle. A person whose name was not known made a call to 1122 which reached the spot and took the injured to the hospital. Contrary to this, Amjad Iqbal EMT Rescue 1122 D.W.2 while appearing before the learned trial Court stated in his statement that on the call of one Waqas (not P.W.), he along with Tariq Aziz EMT and Khizer driver of ambulance reached Highway ground, collected the dead body from the ground, one Zeeshan (not P.W.) was present there, they handed over motorcycle lying near the dead body to said Zeeshan whose Mobile No. 0307-4428362 was also recorded by them on the record. No other adult male person except Zeeshan was present there at Highway ground. Emergency call form Ex. DC and emergency response call Ex.DH are attested copies of original record which he brought along with him before the learned trial Court. Entry on the back side of emergency call form Ex.DJ is also in his handwriting. This witness has not stated that both the P.Ws. were present with the dead body at the time of its shifting, meaning thereby that both the eye-witnesses were not present at the place of occurrence at the time of occurrence. Rough site-plan Ex.P.O and scaled site plan Ex.P.C also do not show the houses of both the eye-witnesses around the place of occurrence who were the chance witnesses, but have failed to establish their presence at the place of occurrence at the time of occurrence with their stated reasons. (2017 SCMR 564) "Arshad Khan v. The State" and (2014 SCMR 1698) "Muhammad Rafique v. The State".
ii) Muhammad Hasham Khan complainant P.W.12 stated in his cross-examination that Mohsin Klasra and Yasir Klasra were not arrested by the police as suspects of this occurrence on his instigation, stated in volunteer portion that police at their own arrested them. Ghulam Abbas and Muhammad Haider were also arrested by the police at their own being suspects, he neither asked the police to arrest the above said persons nor he implicated them.
(iii) Muhammad Umair Khan P.W. 13 (real brother of Muhammad Hamza Khan deceased) Stated in his statement that on the day of occurrence, he along with Muhammad Hamza Khan deceased went to gymnasium on motorcycle for exercise where the deceased received call of Nadeem Iqbal appellant who asked him to come to Highway ground (place of occurrence), then he went there but did not return. This story is also neither plausible nor believable.
(iv) Muhammad Azam S.I. P.W. 16 stated in his statement that the appellant was arrested on 16.06.2013 who on 20.06.2013 during interrogation disclosed and got recovered .30-bore pistol from his house. Report of PFSA Ex.P.V shows that crime empty was received in the office on 17.06.2013 after the arrest of the appellant, in such eventuality, possibility of manufacturing of the crime empty before its dispatch to the said agency cannot be ruled out of consideration to obtain positive report which cannot be relied upon and is discarded.
5. In view of the above discussion, we entertain serious doubt in our minds regarding participation of appellant 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.
6. For the foregoing reasons, instant criminal appeal is allowed, conviction and sentences for Nadeem Iqbal appellant awarded by learned trial Court through impugned judgment are hereby set-aside and he is acquitted of the charges. He is directed to be released forthwith, if not required in any other case. Murder Reference is answered in NEGATIVE and death sentence of Nadeem Iqbal (appellant) is NOT CONFIRMED.
(A.A.K.) Appeal allowed
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