PLJ 2022 Cr.C. 299 (DB)
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b)/34--Conviction and sentence--Challenge to--Qatl-e-amd--Murder reference--Delay in post-mortem--Motive--Previous enmity recovery of rifle--Benefit of doubt--They were chance witnesses, but have failed to establish their presence at time of occurrence at place of occurrence with their stated reasons--Such delay is generally suggestive of a real possibility that time had been consumed by police in procuring and planting eye-witnesses and in cooking up a story for prosecution before preparing police papers necessary for getting a post-mortem examination of dead body conducted--Appeal was accepted. [P. 304] A & B
2011 SCMR 1190, 2014 SCMR 1698 and 2017 SCMR 564.
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. [P. 305] C
Benefit of 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. 305] D
Rana Abdul Sattar, Advocate for Appellants.
M/s. Azam Nazeer Tarar, Qasim Ijaz Sumra and Liaqat Bashir Mughal, Advocates for Complainant.
Mr. Munir Ahmad Sial, DPG for State.
Date of hearing: 7.6.2021.
PLJ 2022 Cr.C. 299 (DB)
[Lahore High Court, Lahore]
Present: Sadaqat Ali Khan and Muhammad Tariq Nadeem, JJ.
SHAH NAWAZ and another--Appellants
versus
STATE--Respondent
Crl. A. No. 40370 & M.R. No. 335 of 2017, heard on 7.6.2021.
Judgment
Sadaqat Ali Khan, J.--Appellants Shah Nawaz and Ahmad Nawaz alongwith Gulbaz Khan and Sher Muhammad (since acquitted) have been tried by learned trial Court in case FIR No. 193 dated 08.10.2015 offences under Sections 302/34, 109, PPC Police Station Katha Saghral, District Khushab and were convicted and sentenced vide judgment dated 11.05.2017 as under:
Shah Nawaz appellant
U/S. 302 (b)/34, PPC | Sentenced to death as Tazir for committing Qatl-i-Amd of Ghulam Haider deceased with compensation of Rs. 10,00,000/- payable to the legal heirs of deceased under Section 544-A, Cr.P.C., recoverable as arrears of land revenue and in default whereof to undergo simple imprisonment for six months. |
Ahmad Nawaz appellant
U/S. 302 (b)/34, PPC | Sentenced to imprisonment for life for committing Qatl-i-Amd of Ghulam Haider deceased with compensation of Rs. 10,00,000/- payable to the legal heirs of deceased under Section 544-A, Cr.P.C. recoverable as arrears of land revenue and in default whereof to undergo simple imprisonment for six months. |
2. Appellants have filed this criminal appeal against their conviction and learned trial Court has sent Murder Reference for confirmation of death sentence of Shah Nawaz or otherwise, which are being decided through this single judgment.
3. Brief facts of the case have been stated by Mst. Noor Jahan P.W.9 in her statement before the learned trial Court, which is hereby reproduced for narration of the facts:
Ghulam Haidar deceased was my husband, I know the accused now present in the Court. Ahmad Nawaz and Shah Nawaz are brothers inter-se, Gulbaz Khan accused is their father whereas Sher Muhamannd accused is real brother of Gulbaz Khan accused.
On 8.10.2015, at "Jhiki Deegar Wela", I alongwith Sher Zaman and Fateh Khan PWs was proceeding on factory road to fetch water for our domestic use- In the meantime a water tanki crossed us and a motorcycle driven by Ahmad Nawaz alongwith Shah Nawaz on the back of Ahmad Nawaz, armed with rifles followed it. The water tanki stopped at some distance, my husband Ghulam Haider alighted from water tanki the water tanki left that place, Ahmad Nawaz and Shah Nawaz also stopped their motorcycle and they alighted from it, Shah Nawaz raised lalkara to my deceased husband and fired with his rifle hitting Ghulam Haidar on his chest. Ahmad Nawaz made second fire with his rifle hitting my husband on right side of the wrist. My husband fell down. The two accused made several fire show at my husband which hit on different part of his body. Both the accused decamped from the scene of occurrence on their motorcycle towards south while brandishing their weapons. We attended Ghulam Haidar in injured condition who succumbed to the injuries at the spot. The occurrence was witnessed by me, Fateh Khan and Sher Zaman PWs. Both the accused committed the murder of my husband on the abetment of Gulbaz and Sher Muhammad. The factum of abetment was told to me by Ahmad Sher and Ali Muhamamd PWs stating that on 3.10.2015, when they were proceeding towards factory, they saw accused Gulbaz, Sher Muhamamd, Shah Nawaz and Ahmad Nawaz near the hotel of Sher Zaman, Gulbaz instigated and abetted Shah Nawaz and Ahmad Nawaz accused persons that I will manage my presence in Mandi Baha-ud-Din and you commit the murder of Ghulam Haidar. Sher Muhamamd also instigated Shah Nawaz and Ahmad Nawaz for the murder of Ghulam Haidar deceased.
The occurrence was committed on account of previous enmity as my husband was working as Security Officer in the Comment Factory and he forbade the accused persons for committing dacoities and theft in factory area. The agricultural land of one Bhagan Bibi was also usurped by accused Gulbaz etc. My husband being Lumberdar of the village helped the said Bhagan and his relatives, the relatives of Bhagan made firing at Gulbaz and he involved my husband in the criminal case. Police reached at the spot after learning about the occurrence and I made my statement Ex.PA to the police which was read over to me and I thumb marked the same in token of its correctness after the same was read over to me. I also made supplementary statement regarding abetment of accused. Copy of the FIR No. 716/15 Ex.PH and copy of FIR No. 717/15 Ex.PJ u/s 13/20/.65 A.O P.S Civil Line M.B.Din (under objection) were provide by me to the police during investigation of the case.
4. After hearing learned counsel for the parties, learned D.P.G and on perusal of record with their able assistance, we observed as under:-
i) Ghulam Haider was done to death on the passage on 08.10.2015 at 5:35 p.m. , FIR was lodged on the same evening at 6:25 p.m. (08.10.2015) on the statement made by his widow Noor Jahan complainant P.W.9, who alongwith Fateh Khan P.W. 10 (brother of Ghulam Haider deceased) while claiming themselves to be the eye-witnesses of the occurrence stated in their statements before the learned trial Court that on the day of occurrence they were going on factory road to fetch water for their domestic use from a water pond, meanwhile, a water tank of factory following the appellants (Shah Nawaz and Ahmad Nawaz) riding on a motorcycle armed with rifles crossed them, Ghulam Haider alighted from the water tank then Shah Nawaz appellant made fire shot with his rifle hitting on the chest of Ghulam Haider deceased, second fire shot made by Ahmad Nawaz appellant hitting on right wrist of Ghulam Haider deceased, both the appellants have also made firing with their respective weapons which hit on different parts of body of the deceased.
ii) Mst. Noor Jahan complainant P.W.9 stated in her cross-examination that no other person was available on the road for the purpose of fetching water from the pond, volunteered, the people used to fetch water in the morning and as they remained busy in their land and after getting free, they were going to fetch water at the time of occurrence from water pond at odd hours. Fateh Khan P.W. 10 admitted in his cross-examination that no village Abadi intervenes between his village and the factory (where they were going to fetch water), he further admitted in his cross-examination that Muhammad Hayat of village Nali was driving the water tank from which Ghulam Haider alighted, Muhammad Hayat remained in custody by the police for few days for the interrogation of this case. He does not know whether Muhammad Hayat had disclosed to police that two unknown persons committed the murder of the deceased. Report of Rescue 15 Ex.DJ dated 8.10.2015 shows that at 5:50 p.m. one Muhammad Iqbal had informed Rescue-15 that Ghulam Haider deceased was murdered by some unknown accused, SHO Police Station Katha Sughral reached the place of occurrence and found Ghulam Haider Lambardar dead. Kazim Husain S.I. P.W.12 stated in his cross-examination that at Bus Stop Daiwal, he received call from Emergency Rescue 15 from one Muhammad Iqbal, he stated in his volunteered portion that firstly he informed at the Headquarter of Rescue 15 Jauharabad and then he received information from Rescue 15, he did not remember that whether Muhammad Iqbal made information to 15 that some unknown persons had committed the murder of Ghulam Haider deceased. He further admitted in his cross-examination that said Iqbal was joined by him in the investigation who disclosed before him that firstly at the time of information, he had informed that motorcycle which was used in the occurrence was of black coloured, further admitted that the person standing behind him is Sanwal Khan (real brother of Ghulam Haider deceased), he does not know whether the said Muhammad Iqbal son of Mubaraz Khan is close relative of complainant party, he did not cite the said Iqbal as witness and did not make the report of 15 as part of challan. Fateh Khan P.W.10 stated in his cross-examination that they were proceeding to fetch water on a she-donkey, they had not shown the donkey or the containers of the water to the police, further stated in volunteered portion that as they were in panic for the murder of his brother. Rough site plan Ex.P.N. and scaled site plan Ex.P.C. 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 cases titled "Muhammad Rafique Vs. The State" (2014 SCMR 1698) and "Arshad Khan Vs. The State" (2017 SCMR 564).
v) Motive of the occurrence mentioned in the FIR is previous enmity, no detail of which has been given in it. Mst. Noor Jahan complainant P.W.9 while appearing before the learned trial court stated in her statement regarding motive with dishonest improvements that Ghulam Haider deceased was working as security officer in cement factory and forbade the accused persons for committing dacoities and thefts in the factory area, agricultural land of one Bhagan Bibi was also usurped by the accused, Ghulam Haider being Lambardar helped her. Likewise, Fateh Khan P.W.10 has made dishonest improvement regarding motive before the learned trial Court who was confronted with his statement Ex.D.A. recorded by the I.O. under Section 161, Cr.P.C. wherein it was not so recorded.
vi) Recovery of rifle on pointing out of Shah Nawaz appellant in presence of negative report of PFSA Ex.P.S. is not only inconsequential rather draws adverse inference. No crime weapon was recovered from the possession of Ahmad Nawaz appellant.
vii) Fateh Muhammad P.W. 10 and his brother Ghulam Haider deceased were habitual litigants even they have got registered criminal cases against each other. Fateh Muhammad P.W. 10 stated in his cross-examination that murder case of Gulzar was registered against him and his two brothers namely Ghulam Haider deceased and Sanwal Khan, one Ghaus Muhammad got registered a criminal case against his son Tasawar who was tenant of his brother Ghulam Haider deceased. Ghulam Haider deceased made an application against him in the police station Katha Saghral 2/3 days before the occurrence. He further admitted in his cross-examination that Ghulam Nabi son of Ghulam Muhammad got registered a criminal case against Sher Zaman P.W. for the murder of his brother. He further stated in his cross-examination that he does not know whether Ghulam Haider deceased was involved in many criminal cases either as a complainant or a witness.
6. For the foregoing reasons, instant criminal appeal is Accepted, convictions and sentences of the appellants awarded by the learned trial Court through the impugned judgment are hereby set aside. Shah Nawaz and Ahmad Nawaz appellants are acquitted of the charge, they are directed to be released forthwith if not required in any other case. Murder Reference is answered in NEGATIVE and death sentence of appellant (Shah Nawaz) is NOT CONFIRMED.
(A.A.K.) Appeal accepted
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