PLJ 2022 Cr.C. (Note) 95
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b)/34 & 109--Murder reference--Conviction and sentence--Challenge to--Testimony of PWs--Ocular account--Qatl-e-amd--Medical evidence--Police was not informed by any of PWs rather information of occurrence was given to police by some person of locality whom none of PWs knew--PW-1 stated that he got scribed application for registration of case from a resident of Mohallah but at same time he forgot to inform police about occurrence in which his real son alongwith his roommate was murdered in his presence and view--Conduct of witnesses leads to draw an inference that occurrence was not seen by any of them who failed to establish their presence at place of occurrence at relevant time, as such their testimony was not worth reliance--As regards medical evidence, cause of death according to doctor who conducted autopsy on both dead bodies, was asphyxia, however, he did not give final opinion in that regard, which was to be given on receipt of reports of chemical examiner and histopathologist--No such report was provided by prosecution to doctor PW-6, which suggests something wrong at bottom--Main evidence of prosecution is ocular account which is un-worthy of credence as discussed in preceding paragraph, medical evidence being corroborative in nature, is of no help to prosecution--Appeal allowed [Para 8 & 9] A, B & C
M/s. Muhammad Ahsan Bhoon and Tayyab Shakoor Rana, Advocates for Appellants.
Mr. Muhammad Shahid Buttar, Advocates for Complainant.
Mr. Naseem Akhtar, Deputy District Public Prosecutor for State.
Date of hearing: 15.4.2016.
PLJ 2022 Cr.C. (Note) 95
[Lahore High Court, Lahore]
Present: Syed Shahbaz Ali Rizvi and Ch. Mushtaq Ahmad, JJ.
GHULAM HUSSAIN and 3 others--Appellants
versus
STATE and another--Respondents
Crl. A. No. 1751 of 2011 & M.R. No. 115 of 2015, heard on 15.4.2016.
Judgment
Ch. Mushtaq Ahmed, J.--Appellants Ghulam Hussain, Ghulam Haider, Ghulam Muhi-ud-din and Ghulam Qadir have filed Criminal Appeal No. 1751 of 2011 challenging their conviction and sentence. They were tried by learned Additional Sessions Judge, Ferozwala District Sheikhupura in a private complaint titled “Muhammad Akram Baig vs. Ghulam Hussain and 4 others” under Sections 302/34, 109, PPC and on conclusion of trial they were convicted vide judgment dated 29.09.2011 (“impugned judgment”) and sentenced as under:--
(i) Each of appellants convicted under Section 302(b), PPC and sentenced to death.
(ii) Ghulam Hussain and Ghulam Haider appellants were ordered to pay Rs. 50,000/- each as compensation under Section 544-A, Cr.P.C. to legal heirs of Dildar Baig deceased, whereas Ghulam Muhi-ud-din and Ghulam Qadir Baig appellants were directed to pay Rs. 50,000/- each as compensation under Section 544-A, Cr.P.C. to legal heirs of Rizwan Baig deceased. In case of non-payment of said amount of compensation, delinquent convict to further undergo four months’ SI on each count.
Learned trial Court has forwarded Murder Reference No. 115 of 2015 for confirmation of death sentence of appellants.
2. Private complaint above mentioned was off-shoot of case FIR No. 625/2007 dated 18.06.2007 under Sections 302/34, 109, PPC registered with police station Factory Area, Sheikhupura, which was filed by Muhammad Akram Baig (PW-1). Facts of the case as per complaint are that on 18.06.2007 complainant alongwith Rafaqat Baig (PW-2) and Munir Baig (given up PW) had to go to Haroon-abad to solemnize engagement of her daughter and they went to take his son Dildar Baig with them, for which purpose when they reached Javed Nagar, it was about 06:30 a.m. They saw a white colour car without registration number in starting condition, parked in front of residential quarter of Dildar Baig. Complainant and said witnesses entered the quarter, where Ghulam Hussain and Ghulam Haider Baig (appellants) were strangulating Dildar Baig with a “shalwar” while Ghulam Muhi-ud-Din and Ghulam Qadir (appellants) were strangulating Rizwan Baig with a “Shalwar” and were pulling the same. On seeing the complainant and witnesses, Ghulam Hussain held a pump action gun which was lying in the room whereas remaining accused took out their pistols from waiste line (“nepha”) and made them hands up. In presence and view of complainant and witnesses, Dildar Baig and Rizwan Baig were done to death by accused, whereas they (complainant and PWs) were locked in an adjacent room. Making sure departure of accused, complainant and witnesses knocked the door of that room which was opened by people of locality. It was alleged that the accused had committed murder of complainant’s son Dildar Baig on instigation of their father Iqbal Baig alias Baali. It was further alleged that Rizwan Baig was murdered in order to avoid his evidence. Motive for the occurrence was that about a month prior to occurrence complainant and his brother Rafaqat Baig were present in their house when Ghulam Hussain appellant and his father Iqbal Baig came there and told them to restrain Dildar Baig from calling their daughter Kaneez on mobile phone and from meeting her. On morning of 17.06.2007, Iqbal Baig again visited the complainant and told him that they will teach lesson to Dildar Baig as he did not forbid from his habits. It was alleged in the complaint that investigation was not conducted by police fairly which compelled filing of complaint.
3. Post-mortem examination on both the dead bodies was conducted by Dr. Imtiaz Rana, PW-6, according to whom cause of death of both the deceased was asphyxia and compression of cervical vasculatufe. PW-6, however, withheld final opinion till receipt of reports of chemical examiner and histopathologist but the same were not delivered to him by prosecution.
4. Case was investigated by Arshad Ali SI (CW-1), according to whom only Ghulam Hussain appellant was guilty whereas remaining accused named in the FIR were innocent. Due to said opinion of investigating officer, complainant filed private complaint. Appellants alongwith co-accused Iqbal Baig were charge sheeted. They pleaded not guilty and claimed trial. Seven witnesses were examined by complainant whereas statement of Arshad Ali SI was recorded as
CW-1. Thereafter statements of accused were recorded under Section 342, Cr.P.C., who pleaded false implication on account of pendency of civil litigation. On conclusion of trial, appellants were convicted and sentenced as mentioned in opening paragraph of this judgment, whereas co-accused Iqbal Baig was acquitted of the charge, hence, this criminal appeal as well as murder reference.
5. Learned counsel for appellants argued that there was no motive for the appellants to cause death of complainant’s son and that of Rizwan Baig but four brothers alongwith their father were implicated falsely by concocting a motive which even could not be established; that none of the witnesses was present at the place of occurrence at relevant time which fact is evident from the story narrated in the complaint itself and also from the contradictions between PW-1 and PW-2, as such learned trial Court failed to appreciate evidence in its true perspective.
6. Learned DDPP assisted by learned counsel for complainant vehemently opposed above arguments. It was submitted that presence of PWs was well explained and was beyond any doubt; that no material contradictions could be pointed out by defence in statements of PWs which were corroborated by medical evidence, therefore, findings of conviction recorded by learned trial Court are in line with evidence and facts established on record which need not be interfered in appeal.
7. We have heard learned counsel for the parties at length and gone through the record with their assistance.
8. Prosecution case hinges upon ocular account furnished by PW-1 Akram Baig (complainant) and PW-2 Rafaqat Baig as well as medical evidence furnished by Dr. Imtiaz Rana PW-6. Complainant introduced Shafique Baig PW-3 and Muhammad Afzal Baig (PW since given up) as witnesses of hatching conspiracy, however, learned trial Court discarded evidence to that extent. PW-1 Akram Baig is complainant of the case who is father of Dildar Baig deceased. As per complaint, PW-1, PW-2 and Munir Baig (given up PW) were going to Haroon-abad for solemnizing engagement of complainant’s daughter and for that purpose they went to take Dildar Baig deceased at his residential quarter, the place of occurrence, where they saw the appellants strangulating Dildar Baig and his roommate Rizwan Baig. Complainant’s son Dildar Baig was working in a Dying factory and he used to live in a quarter alongwith others including Rizwan Baig deceased, at a distance of about 35 kilometres from residence of complainant. On the day of occurrence complainant and PWs were going to Haroon-abad for solemnizing engagement of his daughter, but astonishingly no female member of family was accompanying them, which fact is contrary to usual course of business in this respect. PW-1 during cross-examination stated that they went on a car which belonged to his brother-in-law namely Aslam and was being driven by Munir Baig (given up PW), however, there was no mentioning of any vehicle in the FIR or complaint. Even no description of vehicle was given by any of PWs and the same was also not taken into possession by Investigation Officer. According to PWs, a white color car without registration number was standing near quarter of deceased. During cross-examination PW-1 was unable to say model or even company of said car. It was asserted by PWs that accused persons on seeing them, took out pistols and locked them in an adjacent room. This deposition is also doubtful for the reason that had all the assailants been armed with fire-arm weapons, then what was need felt by them to strangulate both the deceased instead of firing on them. It was also version of PWs that Rizwan Baig, a roommate of Dildar Baig was done to death only for the reason that he might be a witness of the occurrence, however, quite strange that three witnesses i.e PW-1, PW-2 and Munir Baig (given up PW) who were closely related to Dildar Baig against whom they had motive, were spared by assailants and Rizwan Baig who was stranger for the accused, was done to death. According to PW-1 Dildar Baig deceased was intimated about two days prior to occurrence about engagement of his sister, but on the day of occurrence he was not contacted by any of the PWs to ask him for getting ready for travel, which fact also creates doubt in the prosecution story. PW-2 even stated that he had telephone contact with Dildar about a week prior to occurrence and thereafter he did not have any contact with him. According to PW-1, the quarter where deceased was residing, had two rooms but the same according to PW-2 was having three rooms. PW-1 stated that door of the room/quarter of deceased opened towards north, whereas according to PW-2 it opened towards east. It was version of PWs that they were locked on gun point by accused in an adjacent room, door of which was opened by residents of locality after departure of the assailants. Despite that, police was not informed by any of the PWs rather information of the occurrence was given to police by some person of the locality whom none of the PWs knew.
PW-1 stated that he got scribed application for registration of case from a resident of Mohallah but at the same time he forgot to inform the police about occurrence in which his real son alongwith his roommate was murdered in his presence and view. Above noted conduct of the witnesses leads us to draw an inference that occurrence was not seen by any of them who failed to establish their presence at the place of occurrence at relevant time, as such their testimony was not worth reliance.
9. As regards medical evidence, cause of death according to the doctor who conducted autopsy on both the dead bodies, was asphyxia, however, he did not give final opinion in that regard, which was to be given on receipt of reports of chemical examiner and histopathologist. However, no such report was provided by prosecution to the doctor PW-6, which suggests something wrong at the bottom. Even otherwise, main evidence of prosecution is ocular account which is un-worthy of credence as discussed in preceding paragraph, medical evidence being corroborative in nature, is of no help to prosecution.
10. On re-appraisal of evidence, we have found that prosecution had failed to establish its case, as such findings of conviction and sentence recorded by learned trial Court against appellants are not sustainable, which are set aside allowing Criminal appeal No. 1751 of 2011. Consequently, Ghulam Hussain, Ghulam Haider, Ghulam Mohi-ud-din and Ghulam Qadir appellants are acquitted of the charge extending benefit of doubt to them. They be released forthwith if not required in any other case. Murder Reference No. 115 of 2015 is answered in negative and death sentence of appellants is not confirmed.
(A.A.K.) Appeal allowed
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