PLJ 2023 Cr.C. (Note) 16
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b), 324, 337-F(ii)--Qatl-e-amd--Conviction and sentence--Challenge to--Benefit of doubt--Occurrence had not taken place in manner stated by eye-witnesses rather they by concealing actual story made exaggeration by twisting facts which shatter their credibility--Court entertain serious doubt in our minds regarding participation of appellants and their co-accused (since acquitted) in present case--Held: It is settled principle of law that for benefit of doubt, it is not necessary that there should be many circumstances creating doubt--If there circumstance which creates reasonable doubt in prudent mind about guilt of accused, then would be entitled to its benefit not as a matter of grace or concession, but as of right--Appeal allowed. [Para 4 & 5] A & B
2008 SCMR 1064 and 2019 SCMR 1978.
M/s. Shaukat Nawaz Gondal, Muhammad Arshad Bhatti and Saith Abdul Rehman, Advocates for Appellants.
Mr. Naveed Inayat Malik, Advocate with Complainant.
Rai Akhtar Hussain, DPG for State.
Date of hearing: 14.3.2022.
PLJ 2023 Cr.C. (Note) 16
[Lahore High Court, Lahore]
Present: Sadaqat Ali Khan and Shehram Sarwar Ch., JJ.
SAJJAD @ SHADDI etc.--Appellants
versus
STATE etc.--Respondents
Crl. A. No. 194423, Crl. Rev. No. 178141, Crl. A. No. 178140 &
M.R. No. 146 of 2018, heard on 14.3.2022.
Judgment
Sadaqat Ali Khan, J.--Appellants (Sajjad @ Shaddi, Nasir @ Nasri and Liaqat Ali @ Liaqui) along with their co-accused i.e. Zulfiqar Ali @ Guphi, Khalil Ahmad and Ali Shan @ Shani (since acquitted) have been tried by learned trial Court in case FIR No. 672 dated 23.06.2013 offences under Sections 302, 324, 148, 149, 109, PPC Police Station Chuhng, District Lahore, and were convicted and sentenced vide judgment dated 28.02.2018 as under:
Sajjad @ Shaddi (appellant)
U/S. 302(b), PPC Sentenced to DEATH as Tazir for committing Qatl-i-Amd of Ali Hussain (deceased) with compensation of
Rs. 3,00,000/- payable to legal heirs of deceased u/S. 544-A, Cr.P.C. recoverable as arrears of land revenue in default whereof to further undergo simple imprisonment for six months.
U/S. 324, PPC Sentenced to 3-years R.I. for attempting to commit Qatl-i-Amd of Munawar Ali (injured PW/complainant) with fine
Rs. 20,000/- in default whereof to further undergo simple imprisonment for three months.
U/S. 337-F(ii), PPC Sentenced to payment of Daman of
Rs. 20,000/- to injured Munawar Ali.
Benefit of Section 382-B, Cr.P.C. was also extended to the appellant.
Nasir @ Nasri and Liaqat @ Liaqui (appellants)
U/S. 302(b), PPC Sentenced to imprisonment for life as Tazir each for committing Qatl-i-Amd of Khadim Hussain (deceased) with compensation of Rs. 3,00,000/- each payable to legal heirs of deceased u/S. 544-A, Cr.P.C. in default whereof to further undergo simple imprisonment for six months each.
U/S. 324, PPC Sentenced to 3-years R.I. each for attempting to commit Qatl-i-Amd of Munawar Ali (injured PW/complainant) with fine Rs. 20,000/- each in default whereof to further undergo simple imprisonment for three months each.
U/S. 337-F(ii), PPC Sentenced to payment of Daman of
Rs. 20,000/- each to injured Munawar Ali.
Benefit of Section 382-B, Cr.P.C. was also extended to the appellants.
2. Appellants have filed Crl. Appeal against their convictions whereas complainant has filed Crl. Reivision for enhancement of the sentences of the respondents/Convicts/appellants (Nasir @ Nasri and Liaqat Ali @ Liaqui) as well as Crl. Appeal against acquittal of co-accused (Zulfiqar Ali @ Guphi, Khalil Ahmad and Ali Shan @ Shani) and learned trial Court has sent Murder Reference for confirmation of death sentence of the appellant (Sajjad @ Shaddi) or otherwise, which are being decided through this single judgment.
3. After hearing learned counsel for the parties as well as learned DPG, and on perusal of record with their able assistance, we have observed as under:--
(i) Unnecessary facts apart, Ali Hassan and his paternal uncle Khadim Hussain were done to death whereas Munawar Ali (complainant/PW-1/real father of Ali Hassan deceased and real brother of Khadim Hussain deceased) sustained injuries during the occurrence took place on the road in front of their shop on 23.06.2013 at 6:25 p.m., FIR was lodged on the same night at 8:45 p.m. Munawar Ali (injured PW-1) and his paternal nephew Nafees Abbas (PW-2) while claiming themselves to be the eye-witnesses of the occurrence stated in their statements before learned trial Court that on 23.06.2013 at about 6/6:15 p.m., they along with both the deceased were present in their shop i.e. built in their house, Nasir (appellant) came there and asked for 100 rupees calling card, he took out note of 500 rupees, whereafter Nafees Abbas (PW-2) gave him Rs. 400/- and calling card but he did not give Rs. 500/- note to Nafees Abbas (PW-2) and went away, Nafees Abbas (PW-2) asked him to pay
Rs. 500/-, on this he started abusing, Nafees Abbas also abused him, Nasir left the shop threatening him for dire consequences, thereafter at 6:30 p.m., Liaqat and Nasir (appellants) armed with 223 bore rifles, Zulfiqar (accused since acquitted) armed with rifle, Sajjad (appellant) armed with Kalashnikov (type rifle), Ali Shan (accused since acquitted) armed with rifle and two unknown accused armed with fire-arm weapons i.e. Muhammad Ishfaq (introduced through supplementary statement but he did not face trial), came there while raising Lalkara. Nafees Abbas (PW-2) also abused them and asked for the money. Sajjad (appellant) and Zulfiqar (accused since acquitted) made fire shots with their rifles hitting on the right thigh of Ali Hassan (deceased), one fire hit on the left leg of Munawar Ali (injured
PW-1) whereafter Nasir, Liaqat (appellants) and Ali Shan (accused since acquitted) and two unknown accused made fire shots with their weapons hitting on the legs of Khadim Hussain (deceased) and also on the right leg of Munawar Ali (injured PW-1). Ali Hassain (deceased/the then injured), Khadim Hussain (deceased/the then injured) and Munawar Ali (injured PW-1) were shifted to Rural Health Centre, Chuhng fromwhere they were referred to Jinnah Hospital, Lahore in ambulance where Ali Hassan succumbed to the injuries and Khadim Hussain died on the following day.
(ii) There is no MLR showing that Munawar Ali (PW-1) having fire-arm injuries on his person sustained during the occurrence was medically examined on 23.06.2013 (date of occurrence). Exh. PH is an application dated 23.06.2013 by Muhammad Latif, SI (PW-9) for obtaining the permission from medical officer as to whether Munawar Ali (injured PW-1) is medically fit to make his statement or not which was endorsed statedly by the medical officer in positive but no medical officer has been produced by the prosecution to prove above said endorsement. Name of the medical officer has also not been mentioned. Muhammad Latif, SI (PW-9) has also not stated in his statement before learned trial Court that he prepared injury statement of Munawar Ali (injured PW-1) whereafter his MLR was chalked out on 23.06.2013. Dr. Syed Aziz-ul-Hassan (CW-1) posted at Rural Health Centre, Chuhng, Lahore has chalked out his MLR on 17.08.2013 with unexplained delay of about 2-months observing therein that (i) healed wound on anterior aspect of right leg with no exit but lead pallet was present; (ii) four healed wounds on anterio medial aspect of left leg with no exit, lead pallet was present in third wound. It is important to note here that no accused was shown to be armed with .12-bore gun having cartridge full of pallets. Dr. Syed Aziz-ul-Hassan, Medical Officer (CW-1) stated in his cross-examination that according to Register relating to the Emergency of Rural Health Centre, Chuhng, he being duty doctor had not mentioned the presence of Munawar Hussain (injured PW-1) on 23.06.2013. On 17.08.2013, he medically examined Munawar Hussain (injured PW-1) when Ameer Hussain, ASI; produced docket of the injured PW but he cannot produce such docket, however, he had mentioned the same in his MLC. Medical Officer has not given duration of above said injuries on the person of Munawar Ali (PW-1) to compare with the time of occurrence i.e. 23.06.2013 at 6:30 p.m. In the circumstances discussed above, possibility of fabrication of these injuries on the person of Munawar Ali (injured PW-1) cannot be ruled out.
(iii) Dr. Zahid Manzoor (PW-11) who conducted post-mortem examination on the dead body of Malik Ali Hassan observed single fire-arm entry wound on back of his right thigh. Likewise, Dr. Ghulam Ghazi (PW-14) during post-morterm examination of Khadim Hussain (deceased) observed two fire-arm entry wounds i.e. (i) on back lower of his left thigh and (ii) on his left lower thigh. These three entry wounds were jointly attributed to five accused i.e. Sajjad @ Shaddi, Liaqat @ Liaqui, Nasir @ Nasri (appellants), Zulfiqar Ali @ Guphi and Ali Shan @ Shani (accused since acquitted).
(iv) Danish Asif Ranjha, DSP (PW-17) admitted in his cross-examination that during investigation, it transpired that Nasir (appellant) neither went for purchasing calling card nor paid any amount to the complainant’s son Ali Hassan (deceased), no scuffle had taken place between the said accused Nasir and complainant’s son rather one Fateh Shah went in order to purchase calling card and had a scuffle with complainant’s son who was having close relation with the accused party. IO has discarded the motive part. Danish Asif Ranjha, DSP (PW-17) admitted in his cross-examination that he concluded in his investigation that Nasir Ali @ Nasri and Liaqat Ali @ Liaqui (appellants) had not made firing at the place of occurrence. From the place of occurrence, two types of empties i.e. 7 empties of Kalashnikov and 6 empties of 44-bore rifle were taken into possession (Liaqat and Nasir appellants were shown to be armed with 223-bore rifles by the complainant), he (Danish Asif Ranjha, DSP, PW-17) Stated in his cross-examination that Zulfiqar (accused since acquitted) also did not make firing during the occurrence and Ali Shan (accused since acquitted) has also not been found involved during the occurrence. Complainant has not challenged the above said findings of the IO by filing private complaint. They (Zulfiqar Ali @ Guphi, Ali Shan @ Shani including Khalil Ahmed) have been acquitted by learned trial Court through the impugned judgment. (2019 SCMR 1978) “Safdar Mehrnood and others vs. Tanvir Hussain and others”.
(v) Recovery of rifles on pointing out of Liaqat and Nasir (appellants) in absence of positive report of Punjab Forensic Science Agency qua matching of crime empties with weapon of offence allegedly recovered from the place of occurrence is inconsequential.
(vi) Parvez Ali Malik (PW-10) stated in his statement that on 15.11.2013, Sajjad (appellant) during interrogation disclosed and got recovered Kalashnikov (P-8) from his house. Rough site-plan of place of recovery does not show the house of this witness around the place of recovery. IO has not joined any independent person from the locality of the place of recovery to witness the recovery proceedings, hence, this recovery is not believable. (2008 SCMR 1064) “Ghulam Akbar and another vs. The State”.
4. Above discussed circumstances suggest that the occurrence had not taken place in the manner stated by the eye-witnesses rather they by concealing actual story made exaggeration by twisting the facts which shatter their credibility.
5. In view of the above discussion, we entertain serious doubt in our minds regarding participation of the appellants and their co-accused (since acquitted) in the present case. It is settled principle of law that for giving benefit of doubt, it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in the prudent mind about the guilt of the accused, then he would be entitled to its benefit not as a matter of grace or concession, but as of right.
6. For the foregoing reasons, this appeal is allowed, convictions and sentences of the appellants (Sajjad @ Shaddi, Nasir @ Nasri and Liaqat Ali @ Liaqui) awarded by learned trial Court through impugned judgment are hereby set-aside and they are acquitted of the charges and directed to be released forthwith, if not required in any other case. Murder Reference is answered in NEGATIVE and death sentence of the appellant (Sajjad @ Shaddi) is NOT CONFIRMED.
7. In view of the above decision, Crl. Revision filed by the complainant for enhancement of the sentences of the respondents/ Convicts/appellants (Nasir @ Nasri and Liaqat Ali @ Liaqui), having become infructuous is disposed of and Crl. Appeal filed by the complainant against the acquittal of co-accused (Zulfiqar Ali @ Guphi, Khalil Ahmad and Ali Shan @ Shani), having no merits is dismissed.
(A.A.K.) Appeal allowed
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