PLJ 2022 Cr.C. (Note) 134
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b)/34--Conviction and sentence--Challenge to--Qatl-e-amd--Benefit of doubt--Murder reference--No evidence qua common object--Motive--Trivial alteration took place between parties--So far as alleged recoveries of 244 bore rifles at instance of appellants are concerned, suffice it to observe, that recovery is merely corroborative piece of evidence and relevant only if ocular account inspires confidence which is not situation in this case--So far as medical evidence is concerned, same may confirm ocular account with regard to receipt of injury, locale of injury, kind of weapon used for causing injury, duration between injury and death but it would not tell names of assailants--Held: It is, by now well established principle of law that it is prosecution, which has to prove its case against accused by standing on its own legs and it cannot take any benefit from weaknesses of case of defence--Prosecution remained failed to discharge its responsibility of proving case against appellants--Appeals allowed.
[Para 6, 7 & 9] A, B & C
1995 SCMR 599.
Benefit of doubt--
----It is also well established that if there is a single circumstance which creates doubt regarding prosecution case, same is sufficient to give benefit of doubt to accused, whereas, instant case is replete with number of circumstances which have created serious doubt about prosecution story. [Para 9] D
2009 SCMR 230.
M/s. Nighat Saeed Mughal, Ali Hussain Mohsin, Muhammad Akram Khaksaar and Sheeba Qaiser, Advocates for Appellants.
Mr. Muhammad Arshad Ali Farooqi, Deputy Prosecutor General for State.
Nemo for Complainant.
Date of hearing: 11.4.2022.
PLJ 2022 Cr.C. (Note) 134
[Lahore High Court, Lahore]
Present: Shehram Sarwar Ch. and Muhammad Amjad Rafiq, JJ.
MUHAMMAD AZAM etc--Appellants
versus
SHAUKAT ALI etc.--Respondents
Crl. A. Nos. 218664, 218665 of 2018, Crl. A. No. 48841-J of 2019 &
M.R No. 249 of 2018, heard on 11.4.2022.
Judgment
Shehram Sarwar Ch., J.--Muhammad Azam, Farhan and Muhammad Sultan (appellants) alongwith their co-accused namely Pervaiz, Babar, Umair and Kashif were tried by the learned Addl. Sessions Judge, Faisalabad in a private complaint under Sections 302, 324, 337-F (iii), 337-F (vi), 109, 148 and 149 instituted by Shoukat Ali, complainant (PW.1) being dissatisfied with the investigation conducted by the police in case FIR No. 311 dated 19.06.2015, offence under Sections 302, 324, 311, 109, 148 and 149, PPC, registered at Police Station Dijkot District Faisalabad. Vide judgment dated 31.05.2017 passed by the learned Addl. Sessions Judge, Faisalabad Muhammad Azam (appellant) was convicted under Section 302(b)/34, PPC and sentenced to death on three counts for the murder of Kaleem Ullah Rafaqat Ali and Muhammad Amir with a further direction to pay
Rs. 3,00,000/- (rupees three lakh only) each as compensation under Section 544-A, Cr.P.C. to the legal heirs of each deceased and in default whereof to further undergo simple imprisonment for six months on each count. Muhammad Sultan and Farhan (appellants) were convicted under Section 302(b)/34, PPC and sentenced to imprisonment for life on three counts each with a further direction to pay Rs. 3,00,000/- (rupees three lakh only) each as compensation under Section 544-A, Cr.P.C. to the legal heirs of each deceased and in default whereof to further undergo simple imprisonment for six months on each count. Benefit of Section 382-B, Cr.P.C. was extended to Muhammad Sultan and Farhan (appellants). The charges under Sections 324, 337-F (vi) and 337-F (iii), PPC were not proved against the appellants and the same were dropped. Through the same judgment learned trial Court acquitted Pervaiz, Babar, Umair and Kashif co-accused of the appellants while extending them benefit of doubt and no appeal against their acquittal was filed by the complainant. Assailing the above convictions and sentences, the appellants have filed three separate appeals whereas the learned trial Court has sent Murder Reference No. 249 of 2018 for confirmation or otherwise the sentence of death of Muhammad Azam (appellant) as required under Section 374 of the Code of Criminal Procedure. Since all these matters have arisen out of the same judgment, therefore, the same are being decided together through this single judgment.
2. Prosecution story, as set out in the FIR (Exh.CW.5/A) registered on the application (Exh.PA) of Shoukat Ali, complainant (PW.1) is that on 19.06.2015 at 8:30 p.m. complainant alongwith Imran, Khalid, Muhammad Salecm and Amcr Shehzad was making conversation while standing in the chowk of the village while Rafaqat Ali son of complainant, Muhammad Amir, Kaleem Ullah, Muhammad Arshad and Adnan were eating something at the shop of Adnan. At that time a white colour car without registration number came there. Muhammad Azam, Pervaiz, Nadeem, Muhammad Sultan, Babar and Farhan armed with fire-arms alighted from the car and started firing with their respective weapons. Due to firing of accused persons Rafaqat Ali, Muhammad Amir, Kaleem Ullah, Rashid and Adnan fell on the ground after sustaining injuries. The accused persons while making aerial firing fled away from the spot in their car. The complainant and other PWs attended Rafaqat Ali, Muhammad Amir and Kaleem Ullah who succumbed to the injuries on the spot whereas Adnan and Rashid sustained grievous injuries who were sent to Rural Health Centre, Dijkot for treatment. The occurrence was committed on the instigation and pointation of Umair, Kashif and Muhammad Naeem. Motive behind the occurrence was that few days prior to the occurrence a trivial altercation took place between Muhammad Azam (appellant) and Rashid injured in Mehndi ceremony of son of Muhammad Ramzan but respectables of the village got patched up the matter. The accused persons due to that grudge committed qatl-i-amd of Rafaqat, Muhammad Amir and Kaleem Ullah and caused injuries to Rashid and Adnan by making firing.
3. We have heard learned counsel for the appellants as well as the learned Deputy Prosecutor General for the State and gone through the record with their able assistance.
4. Ocular account in this case consists of Shoukat Ali, complainant (Pw.1), Muhammad Rashid (PW.2), Muhammad Imran (PW.6) and Adnan Aziz (CW.16). In the FIR, private complaint as well as before the learned trial Court it was the case of complainant that on 19.06.2015 at 8:30 p.m. the appellants alongwith their co-accused namely Nadeem (P.O), Pervaiz and Babar (accused since acquitted) made indiscriminate firing with their respective weapons upon Rafaqat Ali, Muhammad Amir, Kaleem Ullah, Rashid and Adnan and due to the said firing Rafaqat Ali, Muhammad Amir and Kaleem Ullah succumbed to the injuries on the spot whereas Rashid and Adnan sustained grievously injuries. Muhammad Rashid (PW.2) and Adnan Aziz (CW.16) were the material witnesses of occurrence but both these PWs while appearing before the learned trial Court did not support the prosecution story as mentioned in the FIR as well as private complaint. They were declared hostile but despite lengthy cross-examination by learned Law Officer as well as learned counsel for the complainant nothing favourable to the complainant could be extracted. The presence of Shoukat Ali, complainant (PW.1) and Muhammad Imran (PW.6) on the spot at the time of incident is doubtful in nature because they did not receive even a scratch during the incident. Moreover they did not make an abortive attempt to save the deceased from the clutches of accused persons. Furthermore, bare perusal of statement (Exh.DB), available on the record, it appears that the complainant deviated from his earlier stance as mentioned in the FIR by stating before the police that due perplexed condition he got nominated Babar etc in this case who were not present on the spot at the time of incident. The houses of both these PWs have not been shown in the scaled site-plan (Exh.CW.8/A/l) close to the place of occurrence. The occurrence allegedly took place at night time but no source of light is mentioned in the FIR. We have further noted that Pervaiz and Babar co-accused of the appellants having similar role of making indiscriminate firing upon the deceased persons with that of appellants have been acquitted by the learned trial Court and no appeal against their acquittal was filed by the complainant, therefore, the question for determination before us, is whether the evidence which has been disbelieved qua the acquitted co-accused of the appellants namely Pervaiz and Babar can be believed against the appellants? In this regard, we are guided by the judgment of the Hon’ble Supreme Court of Pakistan reported as “Shahbaz vs. The State” (2016 SCMR 1763), wherein it was held at page 1765 as under:
“2. ..The law is settled by now that if some eye-witnesses are disbelieved against some accused persons attributed effective roles then the same eye-witnesses cannot be relied upon to the extent of the other accused persons in the absence of any independent corroboration and a reference in this respect may be made to the cases of Ghulam Sikandar and another v. Mamaraz Khan and others (PLD 1985 SC 11), Sarfraz alias Sappi and 2 others v. The State (2000 SCMR 1758), Iftikhar Hussain and others v. The State (2004 SCMR 1185) and Akhtar Ali and others v. State (2008 SCMR 6). In the case in hand no independent corroboration worth its name was available to the extent of Shahbaz appellant inasmuch as the trial Court and the High Court had disbelieved the motive set up by the prosecution, the alleged recovery of a chhurri from the custody of the appellant was inconsequential because the recovered chhurri was not stained with blood, post-mortem examination of the deadbody of Aftab Akhtar deceased was noticeably delayed as the same had been conducted in the following morning and the duration between death and post-mortem examination was recorded as about eleven hours. It appears that time had been consumed by the complainant party and the local police in procuring and planting eye-witnesses and in cooking up a story for the prosecution. The said story of the prosecution already stands substantially disbelieved to the extent of Muhammad Abbas co-accused and we have found that the same was not free from doubt even to the extent of Shahbaz appellant.”
We have further noted that no evidence qua common object was produced by the prosecution during the trial. Therefore, we hold that evidence furnished by both the witnesses of ocular account namely Shoukat Ali, complainant (PW.1) and Muhammad Imran (PW.6) is shaky in nature and cannot be relied upon for maintaining the convictions/sentences of the appellants.
5. Motive behind the occurrence was that few days prior to the occurrence a trivial altercation took place between Muhammad Azam (appellant) and Rashid injured in Mehndi ceremony of son of Muhammad Ramzan but respectables of the village got patched up the matter. The accused persons due to that grudge committed qatl-i-amd of Rafaqat, Muhammad Amir and Kaleem Ullah and caused injuries to Rashid and Adnan by making firing. No exact date, time and place of motive incident have been mentioned in the FIR. Moreover Muhammad Rashid (PW.2) was the material witness of motive but the said PW while appearing before the learned trial Court did not utter even a single world about the motive part of incident. Furthermore, no independent witness qua motive was joined by police in investigation or produced by prosecution before the learned trial Court during trial. Therefore, we hold that prosecution has failed to substantiate motive against the appellants.
6. So far as alleged recoveries of .244 bore rifles at the instance of appellants are concerned, suffice it to observe, that recovery is merely corroborative piece of evidence and relevant only if the ocular account inspires confidence which is not the situation in this case.
7. So far as medical evidence is concerned, the same may confirm the ocular account with regard to the receipt of injury, locale of injury, kind of weapon used for causing the injury, duration between the injury and the death but it would not tell the names of the assailants. Reliance is placed on “Ata Muhammad and another versus The State” (1995 SCMR 599).
8. So far as the defence pleas taken by the appellants in their statements under Section 342, Code of Criminal Procedure are concerned, since the prosecution evidence is doubtful in nature, therefore, there is no need to discuss the same which are exculpatory in nature.
9. We have considered all the pros and cons of this case and have come to this irresistible conclusion that the prosecution could not prove its case against the appellants beyond any shadow of doubt. It is, by now well established principle of law that it is the prosecution, which has to prove its case against the accused by standing on its own legs and it cannot take any benefit from the weaknesses of the case of the defence. In the instant case, the prosecution remained failed to discharge its responsibility of proving the case against the appellants. It is also well established that if there is a single circumstance which creates doubt regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused, whereas, the instant case is replete with number of circumstances which have created serious doubt about the prosecution story. Reliance is placed on case law titled as “Muhammad Akram versus The State” (2009 SCMR 230).
10. For the foregoing reasons, all the appeals separately filed by the appellants are allowed, convictions and sentences awarded to the appellants vide judgment dated 31.05.2017 passed by the learned trial Court are set aside and the appellants are acquitted of the charges levelled against them while extending them benefit of doubt. Muhammad Azam, Muhammad Sultan and Farhan, appellants are in jail. They shall be released forthwith if not required to be detained in any other case.
11. Murder Reference No. 249 of 2018 is answered in the NEGATIVE and the sentence of death awarded to Muhammad Azam (convict) on three counts is NOT CONFIRMED.
12. Before parting with this judgment, it is clarified that the observations recorded in this judgment are relevant only for the disposal of this appeal which shall not influence the learned trial Court in any manner whatsoever in case of arrest and trial of co-accused of the appellant namely Nadeem who was proclaimed offender at the time of pronouncement of the impugned judgment.
(A.A.K.) Appeals allowed
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