PLJ 2022 Cr.C. (Note) 40
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conviction and sentence--Challenge to--Murder reference--Medical evidence--As far as recovery of weapons of offence allegedly affected during course of investigation from possession of appellants is concerned, same are inconsequential due to reason that there is no positive report of Punjab Forensic Science Agency available on record--As far as medical evidence is concerned, it is settled law by now that medical evidence only establishes nature and seats of injuries and weapon used to inflict same but in any way it does not connect culpability of accused--As far as motive part of incident is concerned, deceased got registered a criminal case against accused party and there was also previous litigation between both parties and due to that grudge, accused persons committed occurrence--Without commenting much of its authenticity, we observe that motive is always considered as double edged weapons--Appeals allowed. [Para 17, 18 & 19] A, B & C
2016 SCMR 1605.
Mr. Muhammad Irfan Malik and Khawaja Umaiz, Advocates for Appellants (in Cr. Appeal No. 1388 of 2014).
Mr. Waseem Mumtaz Malik, Advocate alongwith Appellants Muhammad Irfan and Muhammad Imran on bail (in Cr. Appeal No. 916 of 2014)
Barrister Salman Safdar, Advocate for Complainant.
Rai Akhtar Hussain, Deputy Prosecutor General for State.
Date of hearing: 12.3.2020.
PLJ 2022 Cr.C. (Note) 40
[Lahore High Court, Lahore]
Present: Shehram Sarwar Ch. and Muhammad Waheed Khan, JJ.
TAYYAB NISAR etc.--Appellants
versus
STATE etc.--Respondents
Crl. A. Nos. 1388 & 916 & M.R No. 188 of 2014, decided on 12.3.2020.
Judgment
Muhammad Waheed Khan, J.--This judgment shall dispose of Criminal Appeals Nos. 1388 of 2014 & 916 of 2014 filed by appellants, namely, Nisar, Muhammad Irfan & Muhammad Imran respectively (against their convictions and sentences) and M.R. No. 188 of 2014 forwarded by the learned trial Court for confirmation of death sentence awarded to appellant Tayyab Nisar or otherwise. As all these matters have arisen out of the same judgment dated 10.05.2014 passed by the learned-Addl. Sessions Judge Kharian Camp at District Jail, Gujrat in case FIR No. 169 dated 20.06.2011 registered u/S. 302/109/148/149 PPC at Police Station Guliana, whereby appellants were convicted and sentenced as under:--
(i) Tayyab Nisar
Under Section 302(b), PPC awarded death sentence as Ta’zir. He was also directed to pay compensation of Rs. 1,00,000/- to the legal heirs of deceased Muhammad Asghar and in default whereof, he was ordered to undergo six months simple imprisonment.
(ii) Muhammad Irfan
Under Section 302(b) PPC awarded life imprisonment as-Ta'zir. He was also directed to pay compensation of Rs. 1,00,000/- to the legal heirs of deceased Muhammad Asghar and in default whereof, he was ordered to further undergo six months simple imprisonment.
(iii) Muhammad Imran
Under Section 362(b), PPC awarded life imprisonment as Ta'zir. He was also directed to pay compensation of Rs. 1,00,000/- to the legal heirs of deceased Muhammad Asghar and in default whereof, he was ordered to further undergo six months simple imprisonment.
Benefit of Section 382-B, Cr.P.C. was also extended to the appellants Muhammad Irfan and Muhammad Imran.
Whereas Abdul Hameed co-accused of the appellants was acquitted by the learned trial Court vide same judgment by extending him benefit of doubt. It is worth mentioning here that co-accused Danish Ali was tried later on in this case as earlier he was declared proclaimed offender. One co-accused Abdul Majeed died during the pendency of trial.
2. Brief facts as narrated by the complainant Muhammad Sharif while lodging FIR are as under:
“That he was resident of village Malagar and serving as Manager in HBL Channan Branch. He was on leave for a few days due to his operation. His brother Muhammad Asghar was a Bank Officer and posted at HBL Kotla Arab Ali Khan. On 20.06.2011 his brother Muhammad Asghar proceeded for his duty on his motor car Suzuki Cultus bearing registration No. GTM-432 driven by him. The complainant alongwith Muhammad Aslam s/o Muhammad Khan r/o Malagar was going on a motor cycle No. GTJ-9730 to Guliana while driving it to get medicines from Guliana. The car of his brother Muhammad Asghar was going ahead of them and they were going behind him. At about 8.00 A.M. when they reached near Pulli Jand Sharif, the car of his brother became slow due to dilapidated condition of the road. Meanwhile, two Honda 125 motor cycles came in front of car of his brother Muhammad Asghar from Guliana side. The car of his brother stopped. On one motor cycle Danish Ali s/o Muhammad Sadiq, Imran son of Faiz Ahmad r/o Malagar alongwith one un-identified person were riding, whereas on the other motorcycle Tayyab son of Nisar r/o Mairh, Irfan son of Faiz Ahmad r/o Malagar and one un-identified person were riding. All the accused were armed with fire-arms like Kalashnikovs. They alighted from the motor cycles. The complainant and his fellow took shelter near the house situated on the eastern side near the place of occurrence due to fear. Danish Ali accused made a fire on the car of his brother from front side. Danish Ali accused again fired at his brother Muhammad Asghar with his rifle resembling with a Kalashnikov which hit his brother Muhammad Asghar on front of his chest. Tayyab son of Nisar accused made a fire on Muhammad Asghar which hit him on his cheek. After that, all the accused made indiscriminate firing at his brother and on the vehicle which hit Muhammad Asghar on different parts of his body. His brother Muhammad Asghar succumbed to the injuries at the spot. The car was also destroyed by firing. The complainant also stated in his application that he can identify the un-known accused on confrontation. Besides him the occurrence was also witnessed by Muhammad Aslam son of Muhammad Khan. The complainant also stated in his application that the accused have committed the occurrence on the abetment and advice of Abdul Majeed s/o Muhammad Sadiq and Abdul Hameed s/o Pehlwan, Muhammad Younas son of Talib Hussain and Muhammad Aziz son of Muhammad Akram told him about said abetment, that on 10.06.2011, when they were passing nearby Service Station of Abdul Majeed son of Muhammad Sadiq, who is harden criminal and has a terror in the area called them. They went inside the Service Station of Abdul Majeed due to his fear and at that time Abdul Majeed, Abdul Hameed, Tayyab, Imran and Irfan were also present there. Abdul Majeed and Abdul Hameed accused exclaimed to them that they should convey massage to Muhammad Asghar that he would not pursue the case of dacoity and also restrained Muhammad Younas from giving evidence in the said case, otherwise, they would be killed. Abdul Majeed and Abdul Hameed were instigating rest of the accused that if Muhammad Asghar will not stop pursuing the case, they would murder him. Remaining accused also exclaimed while threatening them that they would be punished with death in case of pursuing the case. Abdul Hameed also volunteered to take the responsibility of all the expenses of murder case. The accused Danish and Abdul Majeed are previously involved in numerous criminal cases and Danish is proclaimed offender in many cases. The accused have spread terror and harassment in the area. The complainant also stated that he has informed the police about the abetment but no action was taken.
Motive behind the occurrence is that Muhammad Asghar got registered a case FIR No. 136/2011 u/S. 382, PPC at Police Station Guliana against Abdul Majeed etc. Abdul Majeed accused was arrested in that case and due to this grudge and previous litigation in prosecution of their common object they have committed the occurrence. Hence, this case.”
3. Dr. Muhammad Akbar, who conducted the post-mortem upon the dead body of the deceased Muhammad Asghar on 20.06.2011 at 2:10 p.m. appeared as PW-6 and found five injuries on person of the deceased and opined that probable time which elapsed between injuries and death was immediate and between death and post-mortem examination was within six to eight hours.
4. Thereafter, investigation was carried out by the police and on completion of the same, report u/S. 173, Cr.P.C. was submitted before the learned trial Court. Thereafter, learned trial Court after observing codal formalities, framed charge against appellants alongwith their co-accused, which was denied by them, hence, the trial commenced.
5. It is also worth mentioning here that the complainant as well as one PW Muhammad Younas was murdered subsequently by the accused party. In order to prove its case, the prosecution produced as many as thirteen witnesses. Ocular account was furnished by an eye-witness Muhammad Aslam, who appeared as PW-11. One Aziz Ahmad witness of the alleged conspiracy who appeared as PW-10. Muhammad Hussain SI and Muhammad Aslam SI, both conducted investigation of the case appeared as PW-12 and PW-13, whereas remaining PWs were of formal in nature. Thereafter, prosecution closed its evidence by producing certain documentary evidence.
6. After recording the prosecution evidence, appellants were examined u/S. 342, Cr.P.C., wherein they denied all the allegations leveled against them. They did not opt to appear as their own witnesses u/S. 340(2), Cr.P.C., however, they produced certain documents in their defence.
7. Learned trial Court after appraisal of prosecution evidence convicted and sentenced the appellants in the above mentioned terms, hence, these appeals and Murder Reference.
8. In support of instant appeals, learned counsels for the appellants contend that the prosecution has miserably failed to prove its case against the appellants beyond shadow of reasonable doubt; that the sole eye-witness has not plausibly explained his presence at the place of occurrence, whereas statement of the complainant of the instant case could not be recorded, as he was murdered before recording of evidence; that even otherwise, on perusal of contents of FIR, it is found that both the eye-witnesses were the chance witnesses; that the learned trial Court has not only misconstrued the facts but also mis-read the evidence available on record and the findings recorded in the impugned judgments are based on surmises and conjectures and the story narrated by the complainant cannot be comprehended at any stretch of imagination; that even otherwise, there is no corroboratory evidence available on record as the prosecution remained unsuccessful to prove the motive part of the incident and the recovery of weapons of offence allegedly affected from the possession of the appellants remained inconsequential. So under the circumstances, the prosecution story is replete with doubts and the impugned judgment is liable to be set aside.
9. Conversely learned Deputy Prosecutor General assisted by the learned counsel for the complainant strongly controverted the arguments advanced by the counsel for the appellants and submits that the incident was reported to the police with utmost promptitude, wherein not only the names of assailants alongwith their roles, they played during the occurrence but also the names of eye-witnesses and other necessary details were also incorporated in it; that although the evidence of the complainant could not be recorded, as he had been murdered before the commencement of trial but evidence of other eye-witness Muhammad Aslam (PW-11) is trustworthy, consistent and coherent with the medical evidence, evidence of motive and weapons of offence got recovered from the possessions of the appellants during the course of investigation and all the appellants were held guilty, which aspect further corroborates the prosecution version. Lastly prays that since the prosecution has successfully proved its case up to the hilt against the appellants, so, the instant appeals merits dismissal.
10. We have heard learned counsel for the parties and perused the record with their assistance.
11. The alleged incident as stated in the FIR took place on 20.06.2011 at 8:00 a.m., whereas the matter was reported to the police on the same day at 8:55 a.m. wherein names of the assailants and the roles allegedly played by them during the course of incident were mentioned but we have to see and decide the matter, whether the stance of the eye-witnesses, regarding their availability at the place of occurrence and the truthfulness of their assertions qua the culpability of the appellants, is plausible, trustworthy and the same can be relied upon or not to maintain the convictions and sentences awarded to the appellants by the learned trial Court.
12. Primarily, the prosecution was equipped with two eye¬ witnesses, namely, Muhammad Sharif (complainant) and Muhammad Aslam (PW-11). Before recording of his evidence, Muhammad Sharif was murdered in a subsequent incident, however, other eye-witness Muhammad Aslam made his testimony before the learned trial Court as PW-11. On perusal of contents of the FIR, we find that Muhammad Sharif (since murdered), while narrating the incident stated that during the days of incident, he was on leave due to his operation. His brother Muhammad Asghar (deceased) was a bank officer and posted at HBL Kotla Arab Ali Khan. On 20.06.2011 at 8:00 a.m. his brother Muhammad Asghar proceeded for his duty on his motor car Suzuki Cultus bearing registration No. GTM-432 driven by him. He alongwith Muhammad Aslam s/o Muhammad Khan r/o Malagar was also going on a motor cycle No. GTJ-9730 to Guliana. The car of his brother Muhammad Asghar was going ahead of them and when they reached near Pulli Jand Sharif, two Honda 125 motor cycles came in front of car of his brother Muhammad Asghar. The assailants Danish Ali, Muhammad Imran alongwith Tayyab Nisar and Muhamfnad Irfan (present appellants) and two un-identified persons armed with Kalashnikovs assaulted on his brother. Accused Danish Ali made a fire on the car of his brother from front side, he again fired at his brother with his rifle resembling Kalashnikov which hit his brother on front of his chest. Accused Tayyab Nisar made a fire on his brother which hit him on his cheek and thereafter all the accused persons made indiscriminate firing at his brother, which hit on different parts of his body, who succumbed to the injuries at the spot. The complainant also stated that accused persons committed the occurrence on the abetment and advice of Abdul Majeed and Abdul Hameed. The occurrence allegedly took place in the backdrop of a motive that Muhammad Asghar (deceased) got registered a case FIR No. 136/2011 u/S. 382, PPC at Police Station Guliana against Abdul Majeed etc. and the parties were also indulged in previous litigation. Although, the complainant could not appear before the Court as a witness but the other eye-witness Muhammad Aslam while appearing as PW-11 narrated the incident almost in a similar manner.
13. After going through the record, we entertain serious doubts qua the availability of the eye-witnesses at the place of occurrence, as according to their own version, the complainant had recently been operated of his broken leg, so, going on a motorcycle to a doctor by himself with a broken leg does not appeal to a prudent mind and same is the position of Muhammad Aslam (PW-11), who himself admitted that he was suffering from a heart disease that's why he was going with the complainant to check up from the doctor. Anyhow, regarding his illness, he stated before the learned trial Court in the following words:
“I was going to Guliana to get medicine on the day of occurrence. I am a patient of Angina and I was going to Abbas Doctor for getting medicines. From a long time; I am patient of Angina and getting medicine. I could not state that before the alleged occurrence when I visited the Abbas Doctor. I have prescriptions/ECG reports of my heart disease lying in my house. On the day of occurrence, I was in possession of prescriptions. Muhammad Sharif complainant was also going for bandage on his operating place from Guliana. I could not name the Doctor from where he was getting his treatment. Some days before the alleged occurrence, he was operated. I could not state that the Doctor from where he got operated and that treatment has been done.”
It seems that there was no previous plan of the prosecution witnesses to see the doctors rather they met by chance. While narrating this fact, PW-11 stated as under:
“At 7:35 A.M. I was standing in my village on the day of occurrence and when Muhammad Sharif complainant came to me and asked to go to get medicine and I accompanied him."
Even otherwise, the distance between the place of occurrence and resident of said eye-witness is 1½ km and we find that he admitted this aspect while stated as under:
“Place of occurrence is at a distance of 1½ K.M. from my village.”
14. Another aspect of the case is that according to the prosecution story, six accused persons made firing with their respective Kalashnikovs on person of the deceased Muhammad Asghar but on perusal of medical evidence adduced by Dr. Muhammad Akbar (PW-6), we find that there are four entry wounds present on person of the deceased. Kalashnikov rifle is a very formidable weapon of the day. In case if six persons had participated in the crime, then the damage would have been more devastating qua the number of injuries at the victim. So, this aspect of the case also does not support the stance of the prosecution witnesses.
15. There is yet another aspect of the case that according to the prosecution version, appellants Muhammad Imran and Muhammad Irfan made firing while standing behind the car of the deceased and that place is mentioned in the scaled site plan as point D lying behind the car. So, if that is true, then the deceased should have suffered the injuries on back side of his body also, but admittedly, there is no entry wound found on his back. So, we entertain serious doubt about the availability of eye-witnesses at the crime scene.
16. We have noted another point, which also badly shattered the prosecution version that according to the version of the complainant which is also incorporated in the FIR that Aziz Ahmad (PW-10), who is witness of conspiracy allegedly hatched by the accused persons on 10.06.2011 and accused persons allegedly had given the message of dire consequences to the deceased through the said witness. The alleged occurrence took place exactly after ten days of that conspiracy but during that period, the deceased and the complainant had neither reported that conspiracy to the police nor they had taken any other effort to undo and dislodge the plan of the accused party.
17. As far as the recovery of weapons of offence allegedly affected during the course of investigation from the possession of the appellants is concerned, the same are inconsequential due to the reason that there is no positive report of Punjab Forensic Science Agency available on record.
18. As far as medical evidence is concerned, it is settled law by now that medical evidence only establishes the nature and seats of injuries and the weapon used to inflict the same but in any way it does not connect the culpability of the accused. Reliance in this regard may be placed on the judgment passed by the august Supreme Court of Pakistan in case of “Muhammad Saleem v. Shabbir Ahmed and others” (2016 SCMR 1605).
19. As far as the motive part of incident is concerned, Muhammad Asghar (deceased) got registered a criminal case against accused party and there was also previous litigation between both the parties and due to that grudge, accused persons committed the occurrence. Without commenting much of its authenticity, we observe that motive is always considered as double edged weapons. Reliance is placed on the dictum laid down by the august Supreme Court of Pakistan in the case of “Sahib Masih and others v. The State” (1982 SCMR 178) wherein at page No. 183, it had been observed as under:
“The motive by itself in a case like this, serves as a double-edged weapon. It could prompt false implication. It could as well prompt revenge in the form of aggression. In determining the intrinsic worth or consistency of the statement of eye-witnesses, the mere presence of motive is not sufficient.”
20. After analyzing the case in its entirety, we reach to an irresistible conclusion that the prosecution remained unsuccessful to prove its case beyond reasonable doubt against the appellants. So, we think that convictions should not be allowed to stand and we, therefore, allow these appeals filed by Tayyab Nisar, Muhammad Irfan and Muhammad Imran, set aside the convictions and sentences imposed on them by the learned trial Court and they are acquitted of the charge by extending them benefit of doubt. Appellants Muhammad Irfan and Muhammad Imran are on bail, so, their sureties stand discharged from their liabilities of bail bonds. Appellant Tayyab Nisar is in jail, so, he is ordered to be released forthwith if not required to be detained in any other case. Resultantly, Murder Reference No. 188 of 2014 is answered in NEGATIVE and death sentence of the appellant Tayyab Nisar is NOT CONFIRMED.
(A.A.K.) Appeals allowed
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