PLJ 2023 Cr.C. (Note) 51
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conviction and sentence--Challenge to--Qatl-e-amd--Benefit of doubt--Motive--Criminal litigation-- Both eye-witnesses were chance witnesses but have failed to establish their presence at time of occurrence at place of occurrence with their stated reasons--Motive of occurrence was of criminal litigation between parties which is double edged weapon in criminal case as it can cut both ways--Held: 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 prudent mind about guilt of accused, then he would be entitled to its benefit not as a matter of grace or concession, but as of right. [Para 3 & 4] A, B & C
2020 SCMR 192, 2008 SCMR 6, 2014 SCMR 1698, 2017 SCMR 564, 2005 YLR 1629 & 2017 SCMR 898.
Mr. Kamran Javed Malik and Shamila Arshad Rana, Advocates for Appellant.
Mr. Saeed Ahmad, APG for State.
Date of hearing: 13.10.2021.
PLJ 2023 Cr.C. (Note) 51
[Lahore High Court, Multan Bench]
Present: Sadaqat Ali Khan and Shehram Sarwar Ch., JJ.
versus
STATE etc.--Respondents
Crl. A. No. 117112 & M.R No. 593 of 2017, heard on 13.10.2021.
Judgment
Sadaqat Ali Khan, J.--Appellant (Muhammad shahbaz) along with Amir Hussain @ Haji and Rana Tariq (accused since acquitted) has been tried by learned trial Court in case FIR No. 595 Dated 06.07.2014 under Section 302/34, PPC, P.S. City Daska District Sialkot and was convicted and sentenced vide judgment dated 31.10.2017 as under:-
Muhammad Shahbaz (Appellant)
U/S. 302(b) P.P.C.
Sentenced to DEATH along with compensation Rs. 500,000/-under Section 544-A, Cr.P.C., to be paid by him to the legal heirs of Rana Manzoor Ahmad (deceased) and in default thereof to further undergo 6-months S.I.
Appellant has filed instant appeal against his conviction, whereas learned trial Court has sent Murder Reference for confirmation of his death sentence or otherwise which are being decided through this single judgment.
2. The facts of the case have been stated by Mehfeez Akhtar (PW-5) in her statement before the learned trial Court, which is hereby reproduced for narration of the facts:
“stated that I have six daughters and one son. My son resides abroad. My husband ran a shop of shuttering material at Awami Road Chowk near Moran Wali Kothi and my daughters have established a boutique near their father’s shop. On 06.7.2014, at about 7:00 a.m., I alongwith my husband, my brother Muhammad Qadeer and my son-in-law Muhammad Nadeem along with two daughters went to my husband’s shop. My husband Manzoor Ahmad was few steps ahead of us. He opened the shop and sat inside. I along-with my brother Qadeer and my son-in-law Nadeem stood outside the shop. Four persons came there on two motorcycles. Shahbaz and Tariq (out of them) came at shop while other two persons stood behind at some distance to whom I can identify if they are confronted with me. Accused Shahbaz present before the Court gave fire shot with pistol .30-bore after raising Lalkara to kill my husband which landed on right shoulder of my husband. Accused Shahbaz again made fire shot with his pistol which landed on right Wakhi (flank/rib) of my husband. Accused Shahbaz again made fire shot which landed on back of my husband, due to which my husband fell down. Thereafter, accused persons fled away from the spot after raising Lalkaras. We lifted the deceased Rana Manzoor to shift him to hospital who succumbed to the injuries on the way to hospital. Motive behind the occurrence is that my late husband got registered a case FIR for offence under Section 452, PPC, against the accused Shahbaz, who used to threaten us. I along with witnesses, witnessed the occurrence. Police reached at hospital, I moved application Ex.P.C, for registration of case, which bears my signatures Ex.PC/1. Thereafter, I along with my brother Qadeer and my son-in-law Nadeem (PWs) came at the place of occurrence. Thereafter, I submitted supplementary application stating therein that third fire shot did not hit the deceased on his back and it passed from nearby of the back of my husband. I also named accused Amir in that supplementary application. On 25.09.2014, I submitted another application nominating therein accused Jawad. I pray that accused persons may be dealt with iron hands and they be given requisite punishment.
3. After hearing learned counsel for the appellant as well as learned APG, and on perusal of record with their able assistance, we have observed as under:-
i. Rana Manzoor Ahmad @ Manzoor Pathiyanwala was done to death in his shop on 06.07.2014 at 7.00 a.m., FIR was lodged on the same day at 9.25 a.m. (06.07.2014) with the delay of more than 2-hours on the written application of his widow Mehfeez Akhtar (complainant PWS), who and his “Damaad”/son-in-law Muhammad Nadeem (PW-6) while claiming themselves to be the eye-witnesses of the occurrence stated in their statements before the trial Court that on the day of occurrence i.e. 06.07.2014 at about 7.00 a.m., they along with Rana Manzoor Ahmad @ Manzoor Pathiyanwala (deceased), Muhammad Qadeer and two daughters of the complainant (not PWS) went to the shop of Rana Manzoor Ahmad @ Manzoor Pathiyanwala (deceased), who opened the shop and sat inside, they stood outside the shop. Meanwhile four persons came there on two motorcycles, Muhammad Shahbaz (appellant) and Rana Tariq (accused since acquitted) came at the shop while other two persons stood behind at some distance. Muhammad Shahbaz (appellant) made fire shot hitting on right flank of Rana Manzoor Ahmad @ Manzoor Pathiyanwala” (deceased), second fire shot made by him hit on his back.
ii. FIR was lodged on the written application Ex.PC with the delay of more than two hours, wherein it is specifically mentioned by the complainant that appellant made three fire shots, i.e. one hit on right shoulder, second hit on right flank and 3rd was hit on the back of Rana Manzoor Ahmad @ Manzoor Pathiyanwala (deceased). Contrary to this, Dr.Malik Irfan Rafique PW4 during postmortem examination observed two firearm entry wouads i.e. one on right shoulder, 2nd on back of left lumber region of Rana Manzoor Ahmad @ Manzoor Pathiyanwala (deceased) and 3rd wound on his left side of abdomen was an exit wound.
iii. Then Complainant to bring the case in line with medical evidence moved a written application stating therein with dishonest improvements that Muhammad Shahbaz (appellant) made three fire shots i.e. one hit on right shoulder, second hit on left flank instead of right flank mentioned in the FIR which did not exist, 3rd fire shot made by Muhammad Shahbaz (appellant) on the person of Rana Manzoor Ahmad @ Manzoor Pathiyanwala (deceased) went ineffective and also introduced Rana Amir Hussain as an accused who was unknown in the FIR, but Muhammad Nadeem PW-6 stated in his cross-examination that Rana Manzoor Ahmad was his real Uncle/Chacha as well as father in law/Susar, and Rana Amir Hussain accused introduced by Mehfeez Akhtar (complainant PW-5) in her second written application is his Phuphozad/Bhanja of Rana Manzoor Ahmad @ Manzoor Pathiyanwala (deceased) which shatters the credibility of both the eye-witnesses. Mehfeez Akhtar (complainant PW-5) had also filed 3rd application wherein one Jawad has also been introduced as an accused (since p.o.) in this case. Above discussed conflict between ocular and medical evidence with dishonest improvements and omissions is not ignorable rather creates doubt in the prosecution story. (2020 SCMR 192 “Sufyan Nawaz and another v. The State and others”) and (2008 SCMR 06 “Akhtar Ali and others v. The State”).
iv. Both the eye-witnesses were the chance witnesses but have failed to establish their presence at the time of occurrence at the place of occurrence with their stated reasons. (2014 SCMR 1698 “Muhammad Rafique v. The State”) & (2017 SCMR 564 “Arshad Khan vs. The State”).
v. Motive of the occurrence was of criminal litigation between the parties which is double edged weapon in criminal case as it can cut both the ways. (2005 YLR 1629 “Shamsher Ali vs. The State”).
vi. Muhammad Riaz constable PW12 stated in his statement before the trial Court that on 15.09.2014 and 23.09.2014 appellant during interrogation disclosed and got recovered pistol and motorcycle respectively from his house. I.O did not join any notable from the vicinity of the place of recovery to witness the recovery proceedings by violating the mandatory provisions of Section 103, Cr.P.C. Hence this recovery is not believable. Reliance is placed on case titled “Muhammad Ismail and others vs. The State” (2017 SCMR 898).
4. In view of the above discussion, we entertain serious doubt in our minds regarding participation of the appellant. 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 accused, then he would be entitled to its benefit not as a matter of grace or concession, but as of right.
5. For the foregoing reasons, instant appeal filed by the appellant is allowed, conviction and sentence of appellant (Muhammad Shahbaz) awarded by the learned Trial Court through impugned judgment are hereby set-aside and he is acquitted of the charge. Appellant (Muhammad Shahbaz) is directed to be released forthwith, if not required in any other case. Murder Reference is answered in NEGATIVE and death Sentence of appellant (Muhammad Shahbaz) is NOT CONFIRMED.
6. Before parting with this judgment, it is observed that co-accused (Jawad) is P.O. his case shall be decided by the learned trial Court on its own merits without being influenced from this judgment on his arrest.
(A.A.K.) Appeal allowed
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