PLJ 2023 Cr.C. (Note) 118
[Lahore High Court, Lahore]
Present: Sadaqat Ali Khan and Shehram Sarwar Ch., JJ.
WASEEM @ BILLA and others--Appellants
versus
STATE and others--Respondents
Crl. A. No. 117680-J, 67104 of 2017 & M.R No. 515 of 2017,
decided on 4.10.2021.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b)/34--Murder reference--Conviction and sentence--Challenge to--Benefit of doubt--Qatl-e-amd--Motive--He admitted in his cross-examination that it came to his knowledge that two accused persons who were actually involved in crime were not nominated by complainant party, he admitted in his cross-examination that according to his investigation said Mohsin and Naeem took part in occurrence but complainant party did not implicate them in this case--Injured PW-3 has also been disbelieved against his injuries attributed to Amanat who has been acquitted by trial Court through impugned judgment--Even otherwise, story narrated by eye-witnesses is neither plausible nor believable--The witnesses have given photographic (sic) injury of both deceased and (Injured No. 3) to each of accused turn by turn which is highly improbable in extreme crises and panic situation at place of occurrence shattering their credibility--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--Appeal allowed.
[Para 4 & 5] A, B, C & D
2019 SCMR 2006 and 2005 YLR 1629.
M/s. Kamran Javed Malik, Abdul Wahid Ayoub Mayo and Rai Sarfraz Ali Khan, Advocates for Appellants.
Mr. Azhar Iqbal, Advocate for Complainant.
Mr. Ahmed Saeed, DPG for State.
Date of hearing : 4.10.2021.
Judgment
Sadaqat Ali Khan, J.--Appellants (Waseem @ Billa and Abid) along with their co-accused i.e. Muhammad Maalik, Kashif, Muhammad Asif, Ghulam Mustafa, Muhammad Waqas, Muhammad Nawaz, Muhammad Irfan and Amanat Ali (since acquitted) have been tried by learned trial Court in case FIR No. 4 dated 06.01.2014 offences under Sections 302, 109, 392, 324, 148, 149, 34, PPC registered at Police Station Saddar Daska, District Sialkot, and were convicted and sentenced vide judgment dated 16.08.2017 as under:-
Waseem @, Billa (appellant)
U/S. 302(b) PPC Sentenced to DEATH on two counts as Tazir for committing Qatl-i-Amd of Muhammad Hanif and Shahid Mehmood (deceased) with compensation of Rs. 5,00,000/- 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.
Abid (appellant)
u/S. 302(b)/34, PPC Sentenced to undergo imprisonment for life on two counts as Tazir for committing Qatl-i-Amd of Muhammad Hanif and Shahid Mehmood (deceased) with compensation of Rs. 5,00,000/- 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.
Sentences of the appellant (Abid) were ordered to be run concurrently with benefit of Section 382-B, Cr.P.C.
2. Appellants have filed Crl. Appeal against their convictions whereas complainant has filed Crl. Appeal against acquittal of Co-accused (Muhammad Maalik, Kashif, Muhammad Asif, Ghulam Mustafa, Muhammad Waqas, Muhammad Nawaz, Muhammad Irfan and Amanat Ali) and learned trial Court has sent Murder Reference for confirmation of death sentence of the appellant (waseem @ Billa) or otherwise, which are being decided through this single judgment.
3. Brief facts of the case have been stated by complainant Muhammad Javaid (PW-2) in his statement before the learned trial Court, which is hereby reproduced for narration of the facts as under:
“Stated that on 06.01.2014, at 02:00 p.m, I alongwith my brother Muhammad Hanif, Shahid Mehmood, Moazzam, Ansar Farooq, Chand and Muhammad Maalik was sitting on the Dera of Muhammad Maalik Jat near heap of Paraali. All of a sudden, accused Muhammad Waseem armed with Kalashnikov, Abid armed with 244-bore rifle, Asif armed with 244-bore, Kashif armed with 244-bore, Amanat armed with repeater, Nawaz with repeater, Waqas alias Pannu armed with pistol .30-bore, Ghulam Mustafa armed with pistol 30-bore, alongwith two unknown accused were subsequently disclosed as Muhammad Irfan alias Manna (not present before the Court) and Amjad accused, present before the Court, who were also armed with weapons, emerged there. Accused Amanat Ali raised Lalkara to teach lesson for litigation. Whereupon, accused Waseem alias Billa made burst of his gun on Muhammad Hanif which landed on his face and head. Second burst was made by accused Abid which hit Muhammad Hanif on different parts of his body, who was badly injured and fell down and died at the spot. Thereafter, accused Asif made burst of his rifle 244-bore which hit Shahid Mehmood on his abdomen and arm. Accused Kashif made burst of his gun 244- bore which hit on different parts of body of Shahid, who was badly injured and fell down and passed away. Accused Amanat Ali made fire shot with his repeater due to which pallets were hit to Moazzam PW on his right hand and foot. Other accused also used to make fire shots with intent to kill us and their fire shots also hit to the deceased. It created panic in the village. Accused went to village making firing. Inhabitants of the village closed their doors and accused fled away. The occurrence was witnessed by me, Ansar Farooq, Chand, Muhammad Maaiik and Moazzam. Apart from us, Nadeem and Misbah also witnessed the occurrence. The said occurrence was committed on the abetment of Muhammad Maaiik, Khalid and Muhammad Munir. On 05.01.2014, at 4:20 p.m, Zulfiqar and Muhammad Yousaf went to the Dera of Muhammad Maalik Naayi for settlement of earlier matter. Muhammad Maalik; Khalid and Muhammad Munir were also sitting there. They stated to Zulfiqar and Muhammad Yousaf that they would teach lesson to them and would kill Shahid Mehmood etc. and they may collect their dead bodies soon. The motive behind the occurrence is the previous enmity with the accused party. Due to that grudge the accused persons have murdered my brother Muhammad Hanif and Shahid Mehmood. I moved an application Ex- PB, for registration of case at the spot which bears my signature Ex-PB/1. On 02.03.2014, I moved an application Ex-PC nominating therein. Muhammad Irfan alias Manna and Muhammad Amjad (unknown accused).”
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) Muhammad Hanif and Shahid Mehmood were done to death whereas Moazzam (P.W-3) sustained injuries during the occurrence took place on 06.01.2014 at 2:00 p.m. at the plot of Muhammad Maalik Jat (not PW), FIR was lodged on the same evening (06.01.2014) at 4:25 p.m. on the written application of Muhammad Javed (PW-2/brother of Muhammad Hanif deceased), Who, Moazzam (injured PW-3) and Muhammad Chand (PW-4) while claiming themselves to be the eye-witnesses of the occurrence stated in their statements before learned trial Court regarding role of the accused that Waseem @ Billa (appellant) made burst of his gun hitting on the face and head of Muhammad Hanif (deceased), second burst was made by Abid (appellant) hitting on different parts of the body of Muhammad Hanif (deceased). Asif (co-accused since acquitted) made burst of his rifle hitting on the abdomen and arm of Shahid Mehmood (deceased). Burst made by Kashif (co-accused since acquitted) hit on different parts of the body of Shahid Mehmood (deceased). Amanat (co-accused since acquitted) made fire shot with his repeater which hit Moazzam (injured PW-3). Other accused (five in number i.e. Muhammad Waqas, Muhammad Maalik, Muhammad Nawaz, Muhammad Irfan and Ghulam Mustafa since acquitted) also also made fire shots which hit to the deceased.
(ii) Muhammad Irfan-ul-Haq Sulehria, DSP (CW-1) stated in his statement before learned trial Court that during inquiry Asif (co-accused since acquitted) was not found involved in the commission of occurrence; he stated in his cross-examination conducted on behalf of the accused that complainant party did not challenge his findings given in the inquiry; he further stated that his findings about non-presence of accused (Asif) at the spot was endorsed by subsequent I.O; he admitted in his cross-examination that place of occurrence of deceased Shahid and Hanif are different as per his inquiry. Muhammad Tauseef, DSP (CW-2), Muhammad Jameel, SI (PW-15), Khadim Hussain, SI (PW-18) and Dilawar Hussain, SI (PW-20) also stated in their statements before learned trial Court that during investigation, it transpired that Muhammad Maalik, Muhammad Irfan, Muhammad Nawaz, Muhammad Asif and Muhammad Kashif (accused since acquitted) were not found involved in the commission of occurrence.
(iii) Muhammad Tauseef (cw-2) , stated in his statement that Abid (appellant) was involved in the occurrence only to the extent of safe escape of accused Waseem (appellant) and Amjad (co-accused since PO) on motor bike. Nothing was recovered from Abid (appellant) during interrogation.
(iv) Muhammad Tauseef (cw-2) admitted in his cross-examination that Saman Din was impartial witness who did not nominate the accused Asif, Kashif, Nawaz, Maalik and Irfan (co accused since acquitted) and Abid (appellant), according to his statement, place of murder of deceased Shahid and Hanif is different. He admitted in his cross-examination that it came to his knowledge that two accused persons namely Mohsin and Naeem who were actually involved in the crime were not nominated by the complainant party, he admitted in his cross-examination that according to his investigation said Mohsin and Naeem took part in the occurrence but complainant party did not implicate them in this case.
(v) Moazzam (injured PW-3) has also been disbelieved against his injuries attributed to Amanat who has been acquitted by learned trial Court through the impugned judgment.
(vi) Even otherwise, the story narrated by the eye-witnesses is neither plausible nor believable.
(vii) The witnesses have given photographic (sic) injury of both the deceased and Moazzam (Injured No. 3) to each of the accused turn by turn which is highly improbable in extreme crises and panic situation at the place of occurrence shattering their credibility. (2019 SCMR 2006) “Munir Ahmed and others vs. The State and others”.
(viii) Recovery of Kalashnikov on pointing out of the appellant (waseem @ Billa) in absence of positive report of Punjab Forensic Science Agency qua matching of crime empties with weapon of offence is inconsequential.
(ix) Motive of the occurrence is previous enmity of murders which is double edged weapon in criminal case as it can cut both the ways. (2005 YLR 1629) “ShamsherAli vs. The.State”.
5. In view of the above discussion, we entertain serious doubt in our minds regarding participation of the appellants and their co-accused 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 (waseem @ Billa and Abid) 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 (Waseem @ Billa) 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 Maalik, Kashif, Muhammad Asif, Ghulam Mustafa, Muhammad Waqas, Muhammad Nawaz, Muhammad Irfan and Amanat Ali, having no merits is dismissed.
8. Before parting with this judgment, it is observed that case of Muhammad Amjad (since PO) shall be decided by the learned trial Court on its merits without being influenced from this judgment on his arrest.
(A.A.K.) Appeal allowed
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