PLJ 2022 Cr.C. (Note) 184
Testimony of witness--
----An injured witness and his presence cannot be disputed at crime scene but these are recognized principles of law that this fact by itself will not show that an injured witness has told truth in Court about occurrence; injuries on his person are not per se tantamount to a stamp of credence on his testimony; his statement is to be tested and appraised on principles applied for appreciation of any other prosecution witness. [Para 19] A
1981 SCMR 795, 1996 SCMR 1411 & 1995 SCMR 127.
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 439 & 435--Pakistan Penal Code, (XLV of 1860), Ss. 324, 337-F(iii)--Criminal revisions--Allegations of attempting to commit qatl-e-amd--Conviction and sentence--Testimony of witnesses--Gun was recovered--It is case of prosecution that gun recovered at instance of petitioner was barrel--None of witnesses stated that petitioner had reloaded gun after each fire--If this fact is ignored, even then question arises that if multiple fires were made by petitioner, why only one empty was found at crime scene and not others Prosecution stands still here--Reasonable doubt standard is a fundamental part of jurisprudence means that prosecution must present propositions which once arisen, cannot be refused and denied; this which preclude "reasonable doubt" in mind of a reasonable person as to guilt of accused and that beneficiary of this failure by prosecution under all circumstances shall be one who is called favorite child of law--Revision was allowed.
[Para 23 & 24] B & C
Syed Jaffar Tayyar Bukhari Advocate for Petitioner.
Mr. Abdul Salam Alvi Advocate for Complainant.
Mr. Muhammad Laeeq-ur-Rahman Assistant Deputy Public Prosecutor for State.
Date of hearing: 30.11.2021.
PLJ 2022 Cr.C. (Note) 184
[Lahore High Court, Multan Bench]
Present: Sohail Nasir, J.
MUHAMMAD YOUNAS--Petitioner
versus
STATE and another--Respondents
Crl. Rev. No. 285 of 2021, decided on 30.11.2021.
Judgment
Muhammad Younas (petitioner) had faced trial in First Information Report (FIR) No. 161 (PA/1) recorded on 09.07.2017 under Section 324, PPC at Police Station Sheikh Fazil District Vehari on the complaint of Muhammad Siddique (Pw-1) for the allegations of attempting to commit the Qatal-e-Amd[1] of Abid Majeed (Pw-2). On conclusion of trial vide judgment dated 29.05.2021 passed by the learned Judicial Magistrate with powers Section 30, Tehsil Burewala district Vehari he was convicted and sentenced as under:
i. Under Section 324, PPC to undergo five years rigorous imprisonment and Fine of Rs. 200000/- (two lacs). In default of payment of fine he was ordered to further undergo six months simple Imprisonment.
ii. Under Section 337-F(iii), PPC to pay Rs. 20000/-(twenty thousand) as Daman for each injury (total Rs. 100000/-) to Abid Majeed.
2. Benefit of Section 382-B[2] of Code of Criminal Procedure, (V of 1898) {Cr.P.C} was also extended to petitioner, who then, filed an appeal whereas complainant instituted a criminal revision and both were dismissed vide a consolidated judgment dated 27.09.2021 passed by the learned Additional Sessions Judge Burewala.
3. Still feeling no satisfaction, petitioner has approached this Court through the instant criminal revision.
4. Facts of the case are that Kazim Hussain Assistant Sub Inspector (ASI) was present on duty at EB/100 where Muhammad Siddique (Pw-1) submitted an application (PA). He maintained that on 08.07.2017 at about 10:30 pm he along with his nephew Abid Majeed (Pw-2) was present in their fields and irrigating the land where all of a sudden Muhammad Younas (petitioner) having the possession of 12-bore gun emerged; .he made four fires one after the other which hit on the right shoulder, right arm, again right arm and right side of abdomen of Abid Majeed; petitioner had been making straight firing which hit on the different parts of the body of Abid Majeed; on arrival of Ghulam Muhammad (Pw-3) and Muhammad Din (not produced) petitioner was succeeded to escape; motive was that few days earlier there was a conflict between petitioner and Abid Majeed over the dispute of irrigation of land and at that occasion petitioner extended threats to him. The final words of complainant in the application were that petitioner by way of firing had injured him/complainant as well as Abid Majeed.
5. Above application was sent to police station on the basis of which FIR was recorded by Muhammad Ashraf AS1 (Pw-6).
6. Case was investigated by Kazim Hussain Saqib Naseer Sub-Inspector (SI) who had arrested the petitioner on 11.07.2017 and on conclusion of investigation he got submitted the report under Section 173, Cr.P.C. (Challan) in Court.
7. Initially a charge under Section 324, PPC only was framed against petitioner on 16.10.2017 which he did not plead guilty and claimed his trial. Later on, an amended charge was framed under Sections 324/337-F(iii), PPC on 24.07.2019, which again was not pleaded guilty by petitioner whereafter prosecution had produced Muhammad Siddique/complainant (Pw-1), Abid Majeed/injured (Pw-2), Ghulam Muhammad/eye-witness (Pw-3), Dr. Yaqoob Kamal (Pw-4), Muhammad Shameer ASI/Moharrar (Pw-5), Muhammad Ashraf ASI/author of FIR (Pw-6), Dr. Aksum Ilyas (Pw-7), Dr. Muhammad Zubair Siddique (Pw-8) and Kazim Hussain Saqib Naseer SI (Pw-9).
8. After giving up Muhammad Din being unnecessary prosecution's evidence was closed by the learned Deputy District Public Prosecutor (DDPP).
9. In his examination made under Section 342, Cr.P.C., version of petitioner was that occurrence took place in dark night where no source of light was available; some unknown persons committed the occurrence during theft when Abid Majeed/injured intercepted the thieves. He further pleaded that his involvement in this case was false.
10. Learned counsel for petitioner contended that although it is a case of single accused but if it is established that the prosecution's evidence is suffering from conflicts, self-contradictions, inherent defects and infirmities, the question to sustain conviction of petitioner does not arise.
11. On the other hand learned Assistant Deputy Public Prosecutor (ADPP) and learned counsel for complainant jointly argued that it is a case of single accused who is specifically nominated in FIR with specific role of firing and causing multiple injuries on the person of Abid Majeed whose identification was not a challenge as the parties were residing in the same vicinity, therefore, petitioner has been rightly convicted by the learned trial Court. They further added that the medical evidence has fully supported the version of complainant and injured; no enmity whatsoever exists between the witnesses and petitioner, therefore, issue of false involvement does not arise; defence was unable to shatter the credibility of the witnesses during cross-examination. They finally maintained that as prosecution had succeeded to prove its case, therefore, petitioner has been validly convicted on the basis of a well reasoned judgment by the learned trial Court which was ultimately upheld by the learned appellate Court.
12. HEARD.
13. No doubt that it is a case of single accused but it is not a universal principle that in case of single accused question of substitution does not arise. It may be a case of single accused or otherwise, the duty of prosecution shall remain there to prove its case beyond reasonable doubt, who cannot take benefit from weakness of defence.[3]
14. Occurrence took place on 08.07.2017 at about 10:30 pm and the application (PA) was first time presented before Kazim Hussain ASI on 09.07.2017 that was the next day at 03:05 pm. In that application not a single instance was quoted for delay in reporting the matter to police. I am conscious of the fact that the priority was to save the life of Abid Majeed but at the same time it has been observed that in this era the communications are so fast that there are many ways to inform the police one of which is using the mobile phone and to call the local or the emergency police. By assigning no reason for delay in fact complainant has invited a challenge but unable to meet it.[4]
15. In the application (PA) at the end, the version of Muhammad Siddique was that the petitioner by way of firing had injured him/complainant as well as Abid Majeed. Surprisingly there is no medical report showing that Muhammad Siddique sustained any injury in this occurrence. In Court he also deviated from that version when he stated that petitioner caused injuries only on his nephew Abid Majeed.
16. Prosecution's case is that petitioner was in possession of 12 bore gun and he made four repeated fires those hit on Abid Majeed and thereafter he had been making straight firing. Beside Abid Majeed/injured, Muhammad Siddique/complainant and Ghulam Muhammad were also there in the fields that means that they were too within the range of firing. Keeping in view the use of 12 bore gun, the prudent mind cannot accept that Muhammad Siddique and Ghulam Muhammad did not sustain even a scratch and for this reason their presence at crime scene is under serious doubt.
17. The application for registration of FIR was not drafted by complainant but by an Advocate as evident from cross examination of Muhammad Siddique where he responded as under:
"Sardar Abdul Razzaq Dogar Advocate wrote Exh.PA on my deposition. Sardar Abdul Razzaq Advocate came to us know about the occurrence when I get written application/Exh.PA. Sardar Abdul Razzaq Dogar Advocate came to us at his own"
18. In view of above the fact cannot be denied that the complaint was written after due deliberations, consultations and under best legal advice, therefore, it has lost its veracity and it cannot be said to be first information in its true sense.
19. Coming to the statement of Abid Majeed (Pw-2) I am conscious of the fact that he is an injured witness and his presence cannot be disputed at crime scene but these are the recognized principles of law that this fact by itself will not show that an injured witness has told the truth in the Court about the occurrence; injuries on his person are not per se tantamount to a stamp of credence on his testimony; his statement is to be tested and appraised on the principles applied for appreciation of any other prosecution witness.[5]
20. The medical evidence of this case is very important. Dr. Yaqoob Kamal (Pw-4) had medically examined him on 08.07.2017 at about 11:50 pm and observed following injuries:
i. Firearm lacerated wound .75 cm X.5 cm X going deep on the back and middle of right arm. Blackening present margins inverted. It was entry wound.
ii. Firearm lacerated wound. 75 cm X. 5 cm x going deep on the back and upper part of right arm. Blackening present margins inverted. It was entry wound.
iii. Firearm lacerated wound .75 cm x .5 cm x going deep on the back and lower inner part of the right arm. Blackening present margins inverted. It was entry wound.
iv. Three fire-arms lacerated wound each measuring lcm X lcm x going deep on the front middle and front lower, part of the right arm. No blackening margins inverted, these three wounds were exit would of Injury No. 1, 2
& 3.
v. Firearm lacerated wounds . 75 cm x .75 cm x going deep on the back of right flank. Blackening present margins inverted. It was entry wound.
vi. Firearm lacerated wounds 1.5 cm x 1 cm x going deep on front of right flank. No blackening present margins inverted. It was exit of Injury No. 5.
vii. Firearm lacerated wound 1 cm x . 75 cm x going deep on front and upper part of right side of chest. Blackening present margins inverted. It was entry wound. (Emphasized)
21. Out of seven injuries, six injuries were having blackening and it is an admitted proposition under the medical jurisprudence that blackening occurs on a wound when fire is made from a close contact that is not more than three feet and this fact was also admitted by the doctor in cross-examination. Another important fact is that all the entry wounds were on the back and right side of Abid Majeed.
22. It has been noticed that according to site-plan the firing made by petitioner was from a distance of 25 feet. So even from this angle the version of injured and private witnesses has been falsified.
23. On spot inspection an empty of 12-bore was taken into possession. It is the case of prosecution that the gun recovered at the instance of petitioner was single barrel. None of the witnesses stated that petitioner had reloaded the gun after each fire. For the sake of arguments if this fact is ignored, even then the question arises that if multiple fires were made by petitioner, why only one empty was found at crime scene and not the others? Prosecution stands still here.
24. The gun was recovered on 14.07.2017 which along with empty were sent together for forensic examination on 06.08.2017, therefore, the positive report of PFSA (PM) shall play no role in favour of prosecution.[6]
25. It has been repeatedly held that the reasonable doubt standard is a fundamental part of jurisprudence which once arisen, cannot be refused and denied; this means that prosecution must present propositions which preclude "reasonable doubt" in the mind of a reasonable person as to the guilt of accused and that the beneficiary of this failure by the prosecution under all the circumstances shall be the one who is called favorite child of law.
26. Concluding the discussion made above, I find no difficulty to hold that the prosecution has badly failed to prove its case beyond reasonable doubt against Muhammad Younas (petitioner) therefore, this criminal revision is allowed. Impugned judgments are set aside. Petitioner is acquitted from the case. He is in. custody and shall be released forthwith if not required in any other case. Case property shall be dealt in the same manners as directed by the learned trial Court.
(A.A.K.) Revision allowed
[1]. Murder.
[2]. The period of detention in jail.
[3]. Rehmat alias Rhaman alias Waryam alias Badshah vs. The State PLD 1977 SC 515, Abdul Majeed vs. the State 2011 SCMR 941 and Nasrullah alias Nasro vs. The State 2017 SCMR 724.
[4]. Mehmood Ahmed & 3 other vs. The State & another 1995 SCMR 127, Mehboob lqbal vs. The State 1996 SCMR 1910. Akhtar Ali & others vs. The State PLJ 2008 SC 269, Asia Bibi vs. the State & others PLD 2019 SC 64 and Ghulam Abbas & another vs. the State & another 2021 SCMR 23.
[5]. Said Ahmad vs. Zammurcd Hussain 1981 SCMR 795. Muhammad Hayat v. State 1996 SCMR 1411 and Mehmood Ahmad vs. State 1995 SCMR 127.
[6]. Nawab Ali vs. The State 2019 SCMR 2009.
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