PLJ 2023 Cr.C. (Note) 32
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b), 324, 379, 411, 201, 148 & 149--Conviction and sentence--Challenge to--Qatl-e-amd--Benefit of doubt--Motive--Dispute of land--Committed murder--No plausible explanation for above-mentioned delay in reporting matter to police has been brought on record--This delay in setting machinery of law into motion speaks volume against veracity of prosecution version--Material discrepancy arising out from prosecution A case, an adverse inference to prosecution’s case can be drawn that intervening period had been consumed in fabricating a story after preliminary investigation and to wait for relatives of deceased, who were made witnesses subsequently, incidents reported in almost similar kinds have not been endorsed by Hon’ble Apex Court of country--Medical evidence may confirm ocular account with regard to seat of injuries and its duration, nature of injuries and kind of weapon used for causing such injuries but it cannot connect accused with commission of crime--The motive alleged by prosecution has already been disbelieved by trial Court--Even otherwise, it was an oral, assertion of complainant and no material evidence in shape of ocular or documentary was produced to substantiate motive alleged by prosecution--Although he prosecution is not under obligation to establish a motive in every murder case but it is also well settled principle of criminal jurisprudence that if prosecution sets up a motive and fails to prove it, then, it is prosecution who has to suffer and not accused--Case against appellant is of doubtful in nature and his conviction and sentence cannot be maintained on basis of such type of shaky and unreliable evidence.
[Para 7, 8, 10, 12 & 13] A, B, D, F & G
2022 SCMR 393, 2021 SCMR 16, 2012 SCMR 327, 2019 SCMR 872, 2010 SCMR 97, 2017 SCMR 344 & 2019 SCMR 2000.
Law and Justice--
----Principle--It is a trite principle of law and justice that once prosecution witnesses are disbelieved with respect to a co-accused then, they cannot be relied upon with regard to other co-accused unless they are supported by corroboratory evidence corning from independent source and shall be unimpeachable in nature but that is not available in present case. [Para 9] C
2016 SCMR 1763, 2018 SCMR 787 and 2018 SCMR 2118.
Direct and Substantive Evidence--
---- It is well settled that unless direct or substantive evidence is brought on record, conviction cannot be recorded on basis of such type of evidence howsoever convincing it may be. [Para 11] E
2017 SCMR 142 & 2018 SCMR 772.
Benefit of doubt--
----It is well settled by Apex Court of country that in case of doubt, its benefit must go to accused not as a matter of grace, but of right.
[Para 13] H
1995 SCMR 1345, PLD 2002 SC 1048, 2009 SCMR 230,
2017 SCMR 564, 2018 SCMR 772, PLD 2019 SC 64,
2019 SCMR 652 and 2021 SCMR 736.
Mr. Shahid Azeem, Mehram Ali Bali, Bushra Qamar, Nasir Abbas Zafar and Muhammad Arif Awan, Jawad Khan Lodhi, Advocates for Appellants.
Hafiz Asghar Ali, DPG for State.
M/s. Tayyab Shakoor Rana and Muhammad Naeem Ullah Gujjar, Advocates for Complainant.
Date of hearing 31.5.2022.
PLJ 2023 Cr.C. (Note) 32
[Lahore High Court, Lahore]
Present: Muhammad Tariq Nadeem, J.
SHAHID PERVAIZ alias FAROOQ alias FAROOQI etc.--Appellants
versus
STATE etc.--Respondents
Crl. A. No. 27738-J & Crl. Rev. No. 14608 of 2021,
heard on 31.5.2022.
Judgment
Shahid Pervaiz alias Farooq alias Farooqi, Rab Nawaz alias Rabbani, Khalid Hussain and Imtiaz Ahmad, appellants along with their co-accused Muhammad Raheel Tahir (since acquitted on the basis of compromise vide order dated 07-05-2021 passed by this Court in Crl. Appeal No. 17659 of 2021), Ghulam Shabbir alias Shaharyar, Sher Ali, Doulat Ali, Muhammad Idrees, Imran alias Imran Takher, Maqsood-ul-Hassan, Tanvir and Ahmad Saleem alias Hammad tried by the learned trial Court in case FIR No. 850 dated 10-08-2014, under Sections 302, 324, 379, 411, 201, 148, 149, PPC, Police Station Madina Town, Faisalabad and after conclusion of trial in the case, vide judgment dated 11-02-2021 while acquitting rest of the accused namely Ghulam Shabbir alias Shaharyar, Sher Ali, Doulat Ali, Muhammad Idrees, Imran alias Imran Takher, Maqsood-ul-Hassan, Tanvir and Ahmad Saleem alias Hammad, convicted and sentenced them as under:
Appellant Imtiaz Ahmad
U/S. 302(b), PPC
life imprisonment on two counts for the murder of Imtiaz and Pervaiz alias Ali Haider (deceased).
Appellant Khalid Hussain
U/S. 302(b), PPC
life imprisonment on two counts for the murder of Imtiaz and Pervaiz alias Ali Haider (deceased).
Appellant Shahid Pervaiz alias Muhammad Farooq
U/S. 302(b), PPC
life imprisonment on three counts for the murder of Imtiaz, Pervaiz alias Ali Haider and Abdul Ghafoor alias Ghafoor Hussain (deceased).
Appellant Rab Nawaz alias Rabbani
U/S. 302(b), PPC
life imprisonment on three counts for the murder of Imtiaz, Pervaiz alias Ali Haider and Abdul Ghafoor alias Ghafoor Hussain (deceased).
All the convicts were ordered to pay compensation of
Rs. 1,00,000/- each deceased to the legal heirs of the deceased persons under Section 544-A, Cr.P.C., recoverable as arrears of land revenue; in default thereof to further undergo six months S.I. each. All the sentences were ordered to run concurrently. Benefit of Section 382-B, Cr.P.C. was extended to the convicts.
To the extent of deceased persons Imtiaz Ahamd and Abdul Ghafoor alias Ghafoor Hussain, accused Muhammad Raheel Tahir was acquitted under Section 345 (2), Cr.P.C. as the legal heirs of the deceased persons have compounded the offences levied against him. He was also acquitted from charge under Section 324, PPC.
To the extent of deceased Abdul Ghafoor alias Ghafoor Hussain, accused Imtiaz Ahmad was acquitted under Section 345(2), Cr.P.C. as the legal heirs of the deceased have compounded the offences levied against him. He was also acquitted under Sections 379, 411, 201, PPC by extending him benefit of doubt.
To the extent of deceased Abdul Ghafoor accused Khalid Hussain was acquitted under Section 345 (2), Cr.P.C. as the legal heirs of the deceased have compounded the offences levied against him.
2. The appellants have filed the titled appeal against their conviction and sentence, whereas, a criminal revision has been preferred by petitioner/complainant for enhancement of sentence of life imprisonment to death of appellants. Since common question of law and facts are involved, therefore, both these matters are being disposed of by means of this single judgment.
3. The brief facts of the case have been stated by Pervaiz Iqbal, complainant (PW.8) in his complaint (Ex.PA) are that on 10-08-2014 at about 6:00/6:15 p.m., Imtiaz, Abdul Ghafoor and Pervaiz were sitting on Main Ghousia Road, Factory Area, Dhudhiwala, outside the hotel. Suddenly, ten nominated accused persons along with four unknown accused persons came on motorcycles and a black coloured car without number plate and Tariq, accused (since dead) raised Lalkara to teach lesson for supporting Mian Khan over the disputed land upon which accused Raheel made fire shot, which hit on the forehead of Imtiaz (deceased). Accused Imtiaz Ahamd and Tariq also fired with Kalashnikoves which hit the belly and right rib of Imtiaz (deceased). All accused persons resorted to indiscriminate firing which landed on different parts of the body of Imtiaz (deceased). The accused Shahzad also fired with Kalashnikov which hit on the right side of belly of Pervaiz, whereas accused Shaharyar fired with Kalashnikov upon left armpit of Pervaiz. Accused Sher Ali also fired upon Pervaiz which hit left side of his chest. Both Imtiaz and Abdul Ghaffor received fire shots also died on the spot, whereas Pervaiz died in the
Motive behind the occurrence was that Mian Khan, who was maternal cousin of the complainant had a dispute of land with Raheel etc. and deceased Imtiaz was supporting Mian Khan, due to that reason, accused persons have committed the murder of the deceased persons.
4. After completion of investigation, report under Section 173, Cr.P.C. was submitted against the appellants along with their acquitted co-accused. Learned trial Court, after observing all the pre-trial codal formalities, framed charge against the appellants along with their acquitted co-accused, to which they pleaded not guilty and claimed trial. The prosecution in order to prove its case produced the evidence, which is fully mentioned in the impugned judgment, therefore, the same is not being reproduced here. Thereafter, the statements of the appellants along with their co-accused (since acquitted) were recorded u/S. 342, Cr.P.C. to which they pleaded not guilty and claimed their innocence. The appellants neither opted to appear as their own witnesses under Section 340(2) Cr. P.C. in disproof of the allegations levelled against them, nor produced any defence evidence.
5. The learned trial Court vide judgment dated 11-02-2021 found the appellants guilty, convicted and sentenced them as mentioned above, however, acquitted their co-accused namely Ghulam Shabbir alias Shaharyar, Sher Ali, Doulat Ali, Muhammad Idrees, Imran alias Imran Takhar, Maqsood-ul-Hassan, Tanvir and Ahmad Saleem alias Hamaad of the charge through the same judgment by giving them the benefit of doubt, hence, this appeal.
6. I have heard the arguments advanced by the learned counsel for the appellants as well as learned Deputy Prosecutor General assisted by learned counsel for the complainant assiduously and perused the record minutely.
7. The incident in the present case, according to the prosecution, was alleged to have taken place on 10-08-2014 at about 06/06:15 p.m. within the area of Ghosia Chowk Gulshan Bakkery, about 04 kilometers away from Police Station Madina Town, Faisalabad and the same was reported by Perviaz Iqbal, complainant (PW.8) through written application (Ex.PA) on the basis of which formal FIR (Ex.PA/1) was chalked out by Addul Haq 5020/HC (PW.3) on 10-08-2014 at 10:30 p.m. (night) with the delay of 04 hours and 30 minutes. No plausible explanation for the above-mentioned delay in reporting the matter to the police has been brought on the record. Therefore, I hold that this delay in setting the machinery of law into motion speaks volume against the veracity of prosecution version. Reliance is placed on case law titled as “Pervaiz Khan and another vs. The State” (2022 SCMR 393) wherein the august Supreme Court of Pakistan has held as under:
“... There is another circumstance that according to prosecution the occurrence took place at 7 p.m. whereas the FIR was chalked out at 11:35 p.m. Although complainant claimed that he arrived in the hospital within one or one and. a. half hour but even then the report was lodged in the hospital at 11:15 p.m. There is no explanation as to why after reaching the hospital, when both the deceased had succumbed to the injuries why they had not reported to the police and where this time was consumed, obviously this time was consumed for deliberation and consultation. This delay could not be explained by learned counsel for the complainant…………..”
8. I have further noted that post-mortem examination on the dead body of the deceased Imtiaz was conducted by Doctor Iqbal Ashraf Zia (PW. 11) on 11-08-2014 at about 09:30 a.m. with the delay of almost 15 hours after the occurrence, whereas post-mortem on the dead bodies of Pervaiz alias Ali Haider and Abdul Ghafoor were conducted on 11-08-204 at 10:30 a.m. Keeping in view this material discrepancy arising out from the prosecution case, an adverse inference to the prosecution’s case can be drawn that the intervening period had been consumed in fabricating a story after preliminary investigation and to wait for the relatives of the deceased, who were made witnesses subsequently, the incidents reported in almost similar kinds have not been endorsed by the Hon’ble Apex Court of the country. Reliance in this regard is placed upon the cases titled as “Muhammad Adnan and another vs. The State and others” (2021 SCMR 16) wherein the Hon’ble Supreme Court of Pakistan has held as under:
“.... the matter was reported to police on the same night at 09:45 p.m. whereas the FIR was registered at 10:30 p.m., Surprisingly, post-mortem examination on the dead body of Muhammad Tayyah was conducted on 19-09-20018 at6:30 a.m. Dr. Muhammad Sharif (PW6) who conducted autopsy stated in his cross-examination that at THQ, Hospital, Depalpur, the arrangements for conducting posts-mortem examination are available at night; that he was on duty in the hospital on that night; that his duty started from 8:00 p.m. on 18-09-2008 till 08.00 a.m. on 19-09-2008; that he received the police papers at 6.30 a.m. on 19.09.2008. There is no explanation on record why the autopsy on the dead body of Muhammad Tayyab was conducted with delay of more than nine hours.”
Wisdom is also derived from the judgment reported as “Pervaiz Khan and another vs. The State” (2022 SCMR 393) wherein the Hon’ble Supreme Court of Pakistan has held as under:
“.... There is another circumstance that although the dead body was available in the hospital and according to prosecution police also arrived at 11:15 p.m. and the documents of the dead bodies were prepared but post-mortem -were conducted, on the following day i.e. 02.05.2008 at 5 and 6 a.m. So this delayed post-mortem also indicates that till time the documents were not prepared and during this time the matter remained under consultation creating serious doubt regarding the prosecution case ...”
9. I have further noted that according to the prosecution story as contained in complaint (Ex.PA), on the fateful day, co-accused of the appellants namely Shaharyar fired with Kalashnikov upon left armpit of Pervaiz. Accused Sher Ali also fired upon Pervaiz which hit left side of his chest. Both Imtiaz and Abdul Ghaffor received fire shots also died on the spot, whereas Pervaiz died in the
10. Adverting to the medical evidence which is in the shape of statement of Iqbal Ashraf Zia (PW. 11) who conducted autopsy on the dead body of Imtiaz Ahmad, Abdul Ghafoor and Ali Haider alias Pervaiz (deceased) and issued PMRs (Ex.PS, Ex.PV and Ex.PY respectively), suffice it to say that medical evidence may confirm the ocular account with regard to seat of injuries and its duration, nature of injuries and kind of weapon used for causing such injuries but it cannot connect the accused with the commission of crime. I am fortified with the judgments passed by the Hon’ble Supreme Court of Pakistan reported as “Khalid alias Khalidi and 2 others vs. The State” (2012 SCMR 327), “Sajjan Solangi vs. The State” (2019 SCMR 872).
11. Now come to the evidence of recovery of weapon of offences at the instance of the appellants Shahid Pervaiz alias Farooq alias Farooqi, Rab Nawaz alias Rabanni, Khalid Hussain and Imtiaz Ahamd, which being purely corroboratory in nature cannot only be considered to sustain conviction on a capital charge. The same are inconsequential to the prosecution case because of the reason, as per report of Forensic Science Laboratory (Ex.PLLL), crime empties recovered from the place of occurrence have not matched with the weapons recovered from the appellants and report is only to the extent of its working condition. It is well settled that unless direct or substantive evidence is brought on record, conviction cannot be recorded on the basis of such type of evidence howsoever convincing it may be. Reliance is placed upon the cases titled as “Muhammad Irshad vs. Allah Ditta, and others” (2017 SCMR 142) and “Muhammad Mansha vs. The State” (2018 SCMR 772).
12. The motive alleged by the prosecution has already been disbelieved by the learned trial Court. Even otherwise, it was an oral assertion of the complainant and no material evidence in the shape of ocular or documentary was produced to substantiate the motive alleged by the prosecution. Although he prosecution is not under obligation to establish a motive in every murder case but it is also well settled principle of criminal jurisprudence that if prosecution sets up a motive and fails to prove it, then, it is the prosecution who has to suffer and not the accused. I very respectfully rely on the cases of “Noor Muhammad v. The State and another” (2010 SCMR 97), “Sardar Bibi and another vs. Munir Ahmed and others” (2017 SCMR 344) and “Manzoor Ahmed Shah and others vs. The State and others” (2019 SCMR 2000).
13. After having looked into the prosecution case from all angles, I have observed that the case against the appellant is of doubtful in nature and his conviction and sentence cannot be maintained on the basis of such type of shaky and unreliable evidence. It is well settled by the Apex Court of the country that in case of doubt, its benefit must go to the accused not as a matter of grace, but of right. Reliance is placed upon case laws titled as “Tariq Pervez vs. The State” (1995 SCMR 1345), “Ayub Masih vs. The State” (PLD 2002 SC 1048), “Muhammad Akram vs. The State” (2009 SCMR 230), “Khalid Mehmood and others vs. The State” (2011 SCMR 664), “Arshad Khan vs. The State “ (2017 SCMR 564), “Muhammad Mansha vs. The State “(2018 SCMR 772), “Asia Bibi vs. The State and others” (PLD 2019 SC 64), “Muhammad Ashraf alias Acchu vs. The State” (2019 SCMR 652) “Najaf Ali Shah vs. The State” (2021 SCMR 736).
14. After considering all the pros and cons of the case, this Court is of the considered view that the prosecution has failed to prove its case against the appellants beyond any shadow of doubt, therefore, this appeal is allowed, the impugned judgment is set-aside and Shahid Pcrvaiz alias Farooq alias Farooqi, Rab Nawaz alias Rabbani, Khalid Hussain and Imtiaz Ahmad, appellants are acquitted of the charge. They are in jail; they be released forthwith if not required in any other case.
15. As a natural corollary, criminal revision filed by Pervaiz Iqbal, complainant (PW.8) for enhancement of sentence of life imprisonment to death of appellants and compensation is dismissed.
(A.A.K.) Appeal allowed
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