PLJ 2023 Cr.C. (Note) 58
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conviction and sentence--Challenge to--Benefit of doubt--Qatl-e-amd--Motive of occurrence i.e. previous murderous enmity was also attributed to complainant, had he been present at time of occurrence at place of occurrence, he would have been prime target, blessing him with unbelievable Courtesy and mercy shown to him by accused leaving him unhurt that he would -depose -against them is unbelievable story--Where occurrence took place but he being chance witness has failed to establish his presence at time of occurrence at place of occurrence with his stated reasons--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 4 & 5] A, B & C
2017 SCMR 596, 2017 SCMR 564, 2014 SCMR 1698 &
2008 SCMR 1064.
M/s. Kamran Javed Malik, Shahid Azeem and Talish Umar Javed, Advocates for Appellants.
Mr. Dost Muhammad Kahoot, Advocate for Complainant.
Rai Akhtar Hussain, DPG for State.
Date of hearing: 8.6.2021.
PLJ 2023 Cr.C. (Note) 58
[Lahore High Court, Lahore]
Present: Sadaqat Ali Khan and Muhammad Tariq Nadeem, JJ.
QAMAR HASNAIN and others--Appellants
versus
STATE, etc.--Respondents
Crl. A. No. 93301, 93302, 81827 & M.R No. 548 of 2017,
heard on 8.6.2021.
Judgment
Sadaqat Ali Khan, J.--Appellants (Qamar Hasnain and Gul Sher @ Gullu) along with their co-accused i.e. Muhammad Ali and Zulqarnain @ Zulla (since acquitted) have been tried by learned trial Court in case FIR No. 320 dated 26.09.2015 offences under Sections 302, 109, 34, PPC registered at Police Station Langrana, District Chiniot, and were convicted and sentenced vide judgment dated 14.09.2017 as under:-
Qamar Hasnain (appellant)
302(b), PPC Sentenced to DEATH for committing Qatl-i-Amd of Ahmed Yar @ Kala (deceased) with compensation of
Rs. 5,00,000/- payable to legal heirs of deceased under Section 544-A, Cr.P.C. in default whereof to further undergo imprisonment for six months..
Gul Sher (a), Gullu (appellant)
u/S. 302(b, PPC Sentenced to imprison nment for life as Tazir for committing Qatl-i-Amd of Ahmed Yar @ Kala (deceased) with compensation of Rs. 5,00,000/- payable to legal heirs of deceased under Section 544-A, Cr.P.C. in default whereof to further undergo simple imprisonment for six months.
Benefit of Section 382-B, Cr.P.C. was also given to Gul Sher @ Gullu (appellant).
2. Appellants have filed separate Crl. Appeals against their convictions whereas complainant (Shah Nawaz) has filed Crl. Appeal against the acquittal of co-accused i.e. Muhammad Ali and Zulqarnain @ Zulla and learned trial Court has sent Murder Reference for confirmation of death sentence of the appellant (Qamar Hasnain) or otherwise, which are being decided through this single judgment.
3. Brief facts of the case have been stated by complainant Shah Nawaz (PW-9) in his statement before the learned trial Court, which is hereby reproduced as under for narration of the facts:
“On 26.09.2015, at about 10:00 a.m, Riaz and Mirza Khan PW had visited me in connection with Eid Milan, while my step brother Ahmad Yar deceased of this case had gone towards his agriculture land. He did not return for a considerable time. As we were having murder enmity, I was worried, due to which I alongwith Riaz and Mirza PW, came out from our residence and proceeded on the road to see Ahmad Yar, when we reached on the corner of village Abadi, we saw Ahmad Yar deceased while riding on a motorcycle coming towards village side to colony side. When he reached near the corner of the shop of Faiz Reema, accused Qamar Hasnain, armed with Kalashnikov, Gulsher armed with pistol .30 bore, Zulqarnain armed with gun .12 bore, all the accused today present in the Court arrived there, from the side of the shop of Faiz Reema. Qamar Hasnain accused raised lalkara and made fire with his Kalashnikov which had hit on the left lower side of the chest and made its exit from back of the deceased. Gulsher accused made fire with his pistol at Ahmad Yar which had hit in front of his bladder below umbilicus. Ahmad Yar fell down. Qamar Hasnain again made fire with his Kalashnikov which had hit on the back side of his right shoulder, and made its exit from the left flank. Zulqarnain accused remained making Ariel firing. Qamar Hasnain and Gulsher accused again made fire at the deceased which had hit on the different parts of the body of the deceased. We tried to went forward, but the accused persons raised lalkara that whoever dare to come close he would face the same fate and while making firing the accused persons fled away. We attended Ahmad yar and found that he had died. The accused persons had committed the occurrence on the abetment of Mohammad Ali accused. On 25.09.2015, Mohammad Ali accused along with Qamr Hasnain, Gulsher and Zulqarnain were present at his dera and Mohammad Ali was asking their co-accused that their Ghairat has been diminished as they were not taking the revenge of murder and they should murder Ahmad Yar S/o Sultan and he would take care of all the matter. The said conversation was over heard by PW Ali Mohammad and Athar Khan. They had told the above said conversation to the deceased as well as me. (Objected by learned defence counsel as this part of the statement of the PW is hearsay and the witness is disclosing the contents of the statement of another person. The objection shall be resolved at the time of judgment).
Motive for the occurrence was that in the year 2009, Azhar and Abdul Sattar were murdered. Azhar deceased was first cousin as well as husband of the sister of Qamar Hasnain accused and Zulqarnain accused is the son and Gulsher is the paternal nephew of Abdul Sattar deceased. The murder case was registered against me and my brother along with three others, I was attributed role of abetment, while Ahmad Yar deceased was attributed role of murder. We were acquitted in the said case after trial. Due to the said enmity/ grudge the accused persons have committed this occurrence.
After the occurrence police arrived at the spot. I got recorded my statement Ex.PF, to the police officer, which was read over to me and I signed it token of its correctness.”
4. 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) Ahmed Yar @ Kala was done to death at the road on 26.09.2015 at 10:00 a.m., FIR was lodged on the same day i.e. at 11:05 a.m. (26.09.2015) on the statement of his step brother Shah Nawaz (PW-9) against appellants and their co-accused i.e. Zulqarnain @ Zulla and Muhammad Ali (since acquitted).
ii) Shah Nawaz (PW-9) and Muhammad Mirza Khan (PW-10) while claiming themselves to be the eye-witnesses of the occurrence stated in their statements before learned trial Court that on 26.09.2015 at about 10:00 a.m. (as stated by PW-9), 9:30 a.m. (as stated by PW-10), they were present in the house of Shah Nawaz (PW-9) as Muhammad Mirza Khan (PW-10) had come to visit him in connection with ‘Eid Milan’ whereas Ahmed Yar (deceased) had gone towards his agricultural land, who did not return for a considerable time, they having murder enmity became worried and started his search, when they reached on the corner of village Abadi, saw Ahmed Yar (deceased) coming on motorcycle towards village, when he reached near the corner of shop of Faiz Reema (not PW), Qamar Hasnain (appellant) made fire shot with his Kalashnikov hitting on left lower side of his chest; Gul Sher @ Gullu (appellant) made fire shot with his pistol hitting on front of his bladder; second fire shot made by Qamar Hasnain (appellant) hit on back side of his right shoulder; both the appellants also made joint indiscriminate firing hitting on different parts of the body of deceased. Dr. Muhammad Rehmat Ullah (PW-I) who conducted post-mortem examination on the dead body of Ahmed Yar @ Kala (deceased) observed 11 injuries on his person out of which i.e. 7 and 10 are abrasions whereas Injury No. 11 is a lacerated wound on his left lateral abdomen caused by blunt weapon which have not been explained by the eye-witnesses who had given, detail of firearm injuries by attributing each injury to each of the appellants. According to the prosecution story, Ahmed Yar @ Kala (deceased) at the time of occurrence was on motorcycle which was taken into possession through recovery memo. (Exh.PL) by Israr Hussain SI (PW-11) wherein he did not observe any bullet mark on his motorcycle despite indiscriminate joint firing by the appellants as alleged by the eye-witnesses. The most striking feature of the case is that in the FIR, almost photographic narration of the incident has been given, with such degree of accuracy, it is not expected that Injuries No. 7, 10 and 11 with blunt weapon observed by medical officer on the person of deceased during post-mortem examination could not be noticed by the PWs, this doubt of reasonable nature and substance would strongly suggest that both the eye-witnesses were not present at the time of occurrence at the place of occurrence (Irfan Ali vs. State PLJ 2015 SC 634).
iii) Motive of the occurrence i.e. previous murderous enmity was also attributed to complainant, had he been present at the time of occurrence at the place of occurrence, he would have been prime target, blessing him with unbelievable courtesy and mercy shown to him by the accused leaving him unhurt that he would depose against them is unbelievable story. Reliance is placed on case titled “Mst. Rukhsana Begum and others v. Sajjad and others” (2017 SCMR 596). So far as Muhammad Mirza Khan (PW-10) is concerned, he is resident of Chak No. 251/JB, Tehsil and District Jhang and is not resident of Chak No. 203/JB, District Chiniot where occurrence took place but he being chance witness has failed to establish his presence at the time of occurrence at the place of occurrence with his stated reasons. Reliance is placed on cases titled “Arshad Khan vs. The State” (2017 SCMR 564) and “Muhammad Rafique v. The State” (2014 SCMR 1698). Even otherwise, the story narrated by both the PWs that they along with Riaz (given up pw) were present in the house of complainant in connection with ‘Eid Milan’ on the day of occurrence and started to search Ahmed Yar @ Kala (deceased) and saw the occurrence is neither plausible nor believable.
iv) Sajid (PW-7) stated in his statement that on 25.02.2016 Gul Sher @ Gullu (appellant) during interrogation disclosed and got recovered pistol .30-bore (p-5) after digging out the earth of the room of his cattle, on the same day Qamar Hasnain (appellant) during interrogation disclosed and got recovered Kalashnikov (p-6) after digging out the earth from his Dera. Sajid (PW-7) stated in his cross-examination that Noor Samad is his maternal uncle whose daughter Bushra Bibi had been abducted by Qamar Hasnain (appellant) and contracted love marriage few days before the occurrence. The house of this inimical witness does not exit around the place of recoveries/houses of appellants. I.O. has not joined any independent person from the locality to witness the recovery proceedings which are not believable. Reliance is placed on case titled “Ghulam Akbar and another vs. The State” (2008 SCMR 1064).
5. In view of the above discussion, we entertain serious doubt in our minds regarding participation of the appellants and their co-accused i.e. Muhammad Ali and Zulqarnain @ Zulla (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, these appeals convictions and sentences of the appellants (Qamar Hasnain and Gul Sher @ Gullu) awarded by learned trial Court through impugned judgment are hereby set-aside and they are acquitted of the charges. They are directed to be released forthwith, if not required in any other case. Murder Reference is answered in NEGATIVE and death sentence of the appellant (Qamar Hasnain) is NOT CONFIRMED.
7. In view of the above decision, Crl. Appeal filed by the complainant against the acquittal of co-accused i.e. Muhammad Ali and Zulqarnain @ Zulla, having no merits is dismissed.
(A.A.K.) Appeals allowed
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