PLJ 2022 Cr.C. 595
Delay--
----Version--This delay in setting machinery of law into motion speaks volume against veracity of prosecution version--While changing prosecution version as reproduced supra, filed private complaint on 10-10-2019 with delay of 09 months and 13 days--Prosecution has not given any plausible reasoning qua such delay meaning thereby that |the private complaint has been filed after due deliberation and consultation just to fill up lacunas left in FIR.
[Pp. 599 & 600] A & B
2019 SCMR 274 ref.
Ocular account--
----Medical evidence--Even medical evidence runs contrary to prosecution's case as according to MO (CW.3A), he observed blackening on both injuries of (deceased) at time of injured condition whereas according to site-plan fire shots were made from a distance of 490 feet. [P. 600] C
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302, 324, 148 & 149--Sentence--Challenge to--Ocular account--Contradictions between ocular version and medical evidence--That prosecution version with regard to ocular account seems to be tainted, not inspiring confidence and result of due deliberations as well as consultations, hence same cannot be given any legal credence--Although, it is well settled by now that ipsi dixit of policeis not binding upon Court but same can be given weightage if that is based on cogent and plausible reason. [Pp. 601] D & E
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302, 324, 148 & 149--Sentence--Challenge to--Appreciation of evidence--No appeal against acquittal--Recovery of weapon--It is apprised by Deputy Prosecutor General that no appeal against acquittal of supra-mentioned co-accused has been filed by complainant or State, fix is a trite principle of law and justice that once prosecution witnesses are disbelieved with respect to a co-accused then, they cannot be relied upon with regard to other co-accused unless they are supported by corroboratory evidence coming from independent source and shall be unimpeachable in nature but that is not available in present case--It is riot safe to rely on such a weak piece of prosecution evidence, which even otherwise is merely corroborative of direct evidence and is not; evidence of charge, hence, does not offer any help to prosecution case in absence of any trustworthy and confidence inspiring eye-witnesses account--It is firmly settled by Hon'ble Supreme Court of Pakistan that not many circumstances creating doubt in prosecution story are required rather a single circumstance creating doubt is enough to acquit accused. [Pp. 602 & 603] F, G & H
Syed Afzal Shah Bukhari, Advocate for Appellants.
Mr. Hassan Ali, APG for State.
Mr. Muhammad Ahsan Nazami, Advocate for Complainant.
Date of hearing: 1.2.2022.
PLJ 2022 Cr.C. 595
[Lahore High Court, Lahore]
Present: Muhammad Tariq Nadeem, J.
versus
STATE etc.--Respondents
Crl. A. No. 77649 of 2019 & Crl. Rev. 7256 of 2020,
heard on 1.2.2022.
Judgment
Abdul Razzaq and Abdul Sattar, appellants along with their co-accused Nawaz, Azam, Nazir, Muhammad Hanif, Nazir son of Tufail and Amin (since acquitted), faced trial in private complaint under sections 302, 148, 149-PPC emanated from case FIR No. 146 dated 28.2.2019, under Sections 302, 324, 148, 149, PPC registered at Police Station Ela Abad, Kasur, whereby, the learned trial Court while acquitting rest of the accused, convicted and sentenced the appellants as under:
U/S. 302(b), PPC.
Life imprisonment each along with compensation of
Rs. 3,00,000/- each to the legal heirs of Muhammad Nazim, deceased, under section 544-A, Cr.P.C. and in default thereof to further undergo 06 months S.I each.
Benefit of section 382-B, Cr.P.C. was extended to the appellants.
The appellants have filed the titled appeal against their conviction and sentence, while a criminal revision has been preferred by Muhammad Boota, complainant for enhancement of sentence from life imprisonment to normal penalty of death to. appellants. Since common questions of law and facts are involved, therefore, both these matters are being disposed of by means of this single judgment.
2. The facts of the case stated by Muhammad Boota, complainant (PW.1) in his private complaint (Ex.PC) are that on 27.2.2019 at about 2:30 p.m., his brother-in-law (Behnoee) Muhammad Akram was ploughing his land through tractor and his nephew Nazam, aged 26 years was standing near him when accused persons while armed with lethal weapons after constituting unlawful assembly in furtherance of their common object attracted to occupy the land of complainant measuring 08 kanals. On resistance from complainant, his brother-in-law and nephew Nazim, accused Nawaz armed with repeater raised Lalkara to kill them, where upon accused Abdul Razzaq armed with rifle with the intention to kill made straight fire which landed on the back side of right shoulder of Nazim then accused Abdul Sattar armed with pump action 12 bore with the intention to kill made fire which landed below right ear on neck:of Nazim. Accused Azam armed with pistol and Nazim armed with 44 bore made straight fires upon complainant with the intention to kill, which passed through left and right sides of complainant and luckily he remained safe. Accused Nazir armed with pistol 30 bore and accused Amin armed with pump action 12 bore made fires upon Muhammad Akram, who also remained safe. The other accused created harassment in the locality while making aerial firing. The occurrence was witnessed by Yousaf, Muhammad Ali and Abdul Sattar.
The motive behind the occurrence was that the accused tried to occupy upon the 08 kanals land of the complainant.
Nazim was shifted to Ela Abad Hospital in injured condition and due to his serious condition, he was referred to Kasur Hospital, where he was referred to Lahore General Hospital, Lahore where on 11.3.2019, Nazim succumbed to the injures. The complainant filed application for registration of FIR on which FIR No. 146 of 2019 was registered. In Ela Abad Hospital, in presence of Yaar Muhammad, Muhammad Bashir, SI was also present to whom the then injured Nazim got recorded his statement that fire was made upon him by Abdul Razzaq which landed on backside of right shoulder and second fire was made by Abdul Sattar which landed below left ear on his heck as Nazim was in his senses at that time. The accused also reached at Ela Abad, Hospital but they were not arrested by Bashir SI despite asking of the complainant. The doctor also tried to destroy the murder case while concealing the injury upon shoulder. The Investigating Officer with malafide intention recorded statements of witnesses under section 161 Cr.P.C. on 28-08-2019 intentionally and removed the statement of Akram. Hence, the above mentioned private complaint.
3. After recording cursory statements of the complainant and PWs the accused were summoned to face the trial. Learned Trial Court, after observing all the pre-trial codal formalities, framed charge against the appellants along with their acquitted co-accused on 2.12.2019 to which they pleaded not guilty and claimed trial. The prosecution in order to prove its case produced as many as 02 PWs and 08 CWs. The ocular account of the incident in issue had been provided by Muhammad Boota, complainant (PW.1) and Abdul Sattar (PW.2) Muhammad Iqbal 1017/C (CW.1) was the witness of recovery of gun 12 bore at the pointation of the appellant Abdul Razzaq, which was taken into possession by the Investigating Officer vide recovery memo. (Ex.CW.1/2). Yaar Muhammad 1023/C (CW.2) was also the witness of recovery of gun 12 bore at the disclosure of the appellant Abdul Razzaq. Tariq Mehmood, Patwari (CW.6) prepared scaled site-plans (Ex.CW.6/5 and Ex.CW.6/6). Ghulam Abbbas SI/Investigating Officer (CW.7) appeared as secondary witness as well on behalf Bashir SI as he remained posted with him and was acquainted with his hand writing. The medical evidence was provided by Syed Bilal Hussain SHU, MO (CW.3) and Doctor Muhammad Naqi (CW.8), who conducted the autopsy on the dead body of deceased Nazim and issued PMR (EX.CW.8/1).
The remaining evidence produced by the prosecution was more or less is formal in nature.
4. After closure of prosecution evidence, statements under Section 342, Cr.P.C. of appellants and their acquitted co-accused were recorded in which they denied the allegations leveled against them and professed their innocence. While answering to a question, "Why this case was registered against you and why the PWs have deposed against you? both the appellants replied as under:
"That he and his co-accused are the owners of the alleged disputed land and are in possession of the same whereas, the complainant party being aggressor on the fateful day, attracted there and started firing upon them and due to firing of one Iftikhar, Nazim sustained firearm injury. They are glaring contradictions in evidence, of complainant and the story of his complaint is false and fabricated. They have nothing to do with the alleged occurrence. The recoveries are false and planted one. This private complaint is filed with a delay after due consultation and on legal advice as well ..."
The appellants along with acquitted co-accused did not opt to appear as their own witnesses on oath as provided under Section 340(2) of the Code of Criminal Procedure, 1898 in disproof of the allegations leveled against them, however, appellants produced Muhammad Ramzan (DW.1) and Touqeer alias Gudu (DW.2) as well as certain documents (Ex.DA/1-9 to Ex.DC/1-5) in their defence evidence.
5. The learned trial Court vide judgment dated 07-12-2019 found the appellants guilty, convicted and sentenced them as mentioned above, however, acquitted his co-accused namely Nawaz, Azam, Nazir, Muhammad Hanif, Nazir son of Tufail and Amin of the charges through the same judgment by giving them the benefit of doubt, hence, this appeal and criminal revision before me.
"1. Lacerated lesion circular in shape 3 x 2.9 cm on right scapula, everted margins blackening present, bleeding profusely, redness present, soothing was also present. Abrasion collar was not appreciated. Tenderness was present ..."
Although, he (CW.3A) has stated in his cross examination that it is correct that collar of abrasions at Injury No. 1 could not be appreciated, so, it cannot be determined by him with certainly that either Injury No. 1 was entry or exit wound.
The learned counsel for the complainant has argued with vehemence that in the light of supra mentioned reply of Syed Bilal Hussain Shah, MO (CW.3A), there was no contradiction between the ocular and medical evidence. Similarly, site-plans (Ex.CW6/5-6) were not prepared at the pointation of the complainant and PWs. More so, Doctor Syed Bilal Hussain Shah (C.W.3/A) and Muhammad Bashir, SI/I.O (not appeared) have tried to destroy the case of prosecution, for the reasons the complainant constraint to file private complaint (Ex.PC).
I am not in agreement with the contentions made by the learned counsel for the complainant because in the light of statement of Doctor Syed Bilal Hussain Shah, MO (CW3A), it cannot be construed that Injury No. 1 was entry wound and reply of supra mentioned doctor cannot be tilted in favour of the prosecution.
Although, Bashir Ahmad, SI/1.0 has not appeared before the learned trial Court and Ghulam Abbas, SI (CW.7) was appeared as secondary witness. He (CW.7) also admitted in his cross-examination that is correct that distance between point A and B was mentioned in scaled site-plan as 490 feet. It is also noted that Nazim (deceased) was remained alive till 11.3.2019 but he do not recorded his statement under Section 161, Cr.P.C. Although, the prosecution has alleged in his private complaint (Ex.PC) that Nazim (deceased) got recorded his statement in hospital but this fact is not proved from the prosecution evidence. Even Ghulam Abbas, SI (CW.7) has stated in his cross examination as under:
"... No statement of the then injured Nazim (deceased) is available, in the police file ...."
Similarly, he (CW.7) also admitted it correct that according to the investigation conducted by Bashir Ahmad, SI/I.O. one person namely Iftikhar not accused of this case, his statement recorded by Bashir Ahmad SI as verbatim in case diary that he was present at the place of occurrence and also made firing with pistol 30 bore but his fire had not hit to deceased and he be pardoned for aerial firing.
10. After scanning the record, it transpires that co-accused of the appellants namely Nawaz, Azam, Nazir, Muhammad Hanif, Nazir son of Tufail and Amin have been acquitted of the charge by the learned trial Court on the same set of evidence. It is apprised by the learned Deputy Prosecutor General that no appeal against the acquittal of supra-mentioned co-accused has been filed by the complainant or the State. It is a trite principle of law and justice that once prosecution witnesses are disbelieved with respect to a co-accused then, they cannot be relied upon with regard to the other co-accused unless they are supported by corroboratory evidence coming from independent source and shall be unimpeachable in nature but that is not available in the present case. Reliance is placed upon the cases titled as "Shahbaz vs. The State" (2016 SCMR 1763), "Nazir Ahmad versus The State" (2018 SCMR 787) "Haroon Shafique versus The State and others" (2018 SCMR 2118), "Munir Ahmad and another vs. The State and others" (2019 SCMR 79) and "Safdar Abbas and others vs. The State and others" (2020 SCMR 219).
12. Now the only piece of evidence still remains in field is the motive advanced by the prosecution behind the unfortunate incident, which, as per prosecution story was the dispute of property in between the parties. No documentary evidence in the shape of ownership of the property has been produced by the prosecution in this regard, therefore, the learned trial Court has rightly disbelieved the motive part of the occurrence. Although, the prosecution is not under obligation to establish a motive in every murder case but it is also well settled principle of criminal jurisprudence that if prosecution sets up a motive but fails to prove it, then, it is the prosecution who has to suffer and not the accused. Reliance is placed upon the cases titled as "Muhammad Ilyas and another vs. Ameer Ali and another" (2020 SCMR 305), "Liaqat Ali and another vs. The State and others" (2021 SCMR 780) and "Khalid Mehmood and other vs. The State ''and others (2021 SCMR 810).
13. Now, I take up the version of the appellants disclosed by them in their statements recorded under section 342 Cr.P.C. and put to the witnesses during cross-examination. Since the prosecution case is doubtful in nature, there is no need to discuss the defence version, which even otherwise lis exculpatory in nature.
"13. ... It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused has matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."
Similar view was taken in the cases of "Muhammad Adnan and another vs. The State and others" (2021 SCMR 16), "Ghulam Abbas and another vs. The State and another" (2021 SCMR 23) and "ZulfiqarAli vs. The State" (2021 SCMR 1373).
15. Resultantly for the reasons recorded above, Criminal Appeal No. 77649 of 2019 is hereby accepted, impugned judgment against the appellants is set aside and they are acquitted of the charge by extending benefit of doubt in their favour. They shall be released from the jail forthwith, if not required to be detained in connection with any other case.
16. As a natural corollary, criminal revision filed by Muhammad Boota, complainant for enhancement of sentence from life imprisonment to normal penalty of death is dismissed.
(R.A.) Appeal accepted0
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