PLJ 2023 Cr.C. (Note) 139
[Lahore High Court, Multan Bench]
Present: Sadaqat Ali Khan and Shehram Sarwar Ch., JJ.
MUHAMMAD ASIF--Appellant
versus
STATE etc.--Respondents
Crl. A. No. 1505 of 2019 & M.R No. 76 of 2018, heard on 2.11.2022.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Qatl-e-Amd--Ocular account conflict with medical evidence--Acquittal of--Ocular account is in direct conflict with the medical evidence--Appellant made three successive fire-shots with 30 bore pistol on deceased, which landed on the left side of his head, neck and right side of his back but Dr./ PW.1, who conducted autopsy of the dead-body of deceased noted the injuries No.1 and 2 i.e. on the left temporal region and back of left shoulder, as an exit wounds--Intervening distance between the appellant and the deceased (point 1 to 3) was seven feet and blackening/burning from such a range is not possible--No independent witness qua motive was associated during the course of investigation--A single circumstance which creates doubt regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused--Appellant is acquitted. [Para 4, 5 & 7] A, B & C
2022 SCMR 986; 2022 SCMR 1567 ref.
M/s. Javed Iqbal Bhatti, Osama Masood Dogar and Prince Rehan Iftikhar Sheikh, Advocates for Appellant.
Malik Mudassar Ali, Deputy Prosecutor General for State.
Mr. Muhammad Qadir Asif Toor, Advocate for Complainant.
Date of hearing: 2.11.2022.
Judgment
Shehram Sarwar Ch., J.--Muhammad Asif (appellant) along with his co-accused namely Kaura Khan was tried by learned Addl. Sessions Judge, Dera Ghazi Khan in case FIR No. 472 dated 03.10.2017, offence under Sections-302 and 109, PPC registered at Police Station Saddar District Dera Ghazi Khan for the murder of Abdul Rasheed (deceased), son of complainant. Vide judgment dated 29.05.2018 passed by learned trial Court, the appellant has been convicted under Section 302(b) PPC and sentenced to death, with a further direction to pay Rs. 2,00,000/-as compensation under Section 544-A, Cr.P.C. to the legal heirs of deceased and in default whereof to further undergo six months simple imprisonment. Through the same judgment, Kaura Khan, co-accused of the appellant was acquitted of the charge and no appeal against his acquittal was filed either by the State or the complainant as conceded by learned Law Officer and learned counsel for the complainant. Assailing the above conviction and sentence, the appellant has filed the appeal in hand whereas the learned trial Court has sent Murder Reference No. 76 of 2018 for confirmation or otherwise of the appellant’s sentence of death, as required under Section 374 of the Code of Criminal Procedure. Since both these matters have arisen out of the same judgment, therefore, are being decided together through this single judgment.
2. Prosecution story, as set out in the FIR (Ex.PB/3) registered on the statement (Ex.PD) of Fida Hussain, complainant (PW.6) is that on 03.10.2017 at about 6:30 p.m. (evening) he along with his sons Abdul Majeed and Hafeez Ullah was present at the shop of his uncle Yar Muhammad Khan. Meanwhile, Abdul Rasheed was going back to his house from Dera Ghazi Khan and when he reached in front of mosque Yar Muhammad, Muhammad Asif (appellant), who is brother-in-law (saalo) of Abdul Aziz, son of the complainant, came from southern side on a motorcycle and raised a lalkara to Abdul Rasheed that he would teach a lesson for quarreling with him on 01.10.2017. Within their view, the appellant made three successive fire-shots with 30 bore pistol on Abdul Rasheed, which landed on the left side of his head, neck and right side of his back, resultantly he fell on’ the ground smeared with blood. The appellant while having pistol in his hand fled away from the place of occurrence towards southern side on the motorcycle. Abdul Rasheed was attended to by the complainant party but he had succumbed to the injuries. Motive behind the occurrence as alleged in the FIR was that on 01.10.2017, the appellant had visited the house of his sister Hameedan Mai and on departure he said that the clutch lever of his motorcycle was broken by the children of Abdul Rasheed and thereafter a scuffle took place. Owing to that grudge, the appellant committed murder of the deceased on the abetment of Kaura Khan.
3. We have heard learned counsel for the parties as well as the learned Deputy Prosecutor General for the State at a considerable length and have also gone through the record very minutely.
4. Ocular account in this case consists of Fida Hussain,. complainant (PW.6) and Hafeez Ullah (PW.7), who were closely related to the deceased being his father and brother respectively. The presence of both these PWs on the spot at the time of incident is doubtful in nature because they did not receive even a scratch during the incident. Moreover they allegedly saw the incident from a close distance but we failed to understand that in the presence of both these PWs who are closely related to the ‘deceased, how such tragedy with Abdul Rasheed (deceased) could happen without any intervention on their part to rescue him. The ocular account is in direct conflict with the medical evidence because in the FIR as well as before the learned trial Court it was the case of the prosecution that the appellant made three successive fire-shots with 30 bore pistol on Abdul Rasheed (deceased), which landed on the left side of his head, neck and right side of his back but Dr. Muhammad Man (PW.1), who conducted autopsy of the dead-body of Abdul Rasheed (deceased) noted the injuries No. l and 2 i.e. on the left temporal region and back of left shoulder, as an exit wounds. This major discrepancy raised serious doubts on the credibility of the prosecution witnesses of ocular account. We fortify our view from the dictum laid down in case law titled as “Bashir Muhammad Khan vs. The State” 2022 SCMR 986) “Tajamal Hussain Shah vs. The State and another” (2022 SCMR 1567). Moreover, blackening/burning was noted by the medical officer (PW.l) around injuries No. 3 & 4, which was allegedly calised by the appellant but as per scaled site plan (Ex.PB) prepared on the pointation of PWs, the intervening distance between the appellant and the deceased (point 1 to 3) was seven feet and blackening/burning from such a range is not possible, which negates the presence of PWs on the place of occurrence. Even otherwise, in the scaled site plan (Ex.PB) and un-scaled site plan (Ex.PJ) the names of the complainant and PWs have not been disclosed. Considering “overall circumstances of the case, we are of the view that the evidence furnished by Fida Hussain, complainant (PW.6) and Hafeez Ullah (PW.7) is not trustworthy and cannot be relied upon for maintaining conviction of the appellant on the capital charge.
5. Motive behind the occurrence as alleged in the FIR and stated before the learned trial Court was to the effect that on 01.10.2017 the appellant had visited the house of his sister Hameedan Mai and on departure he said that the clutch lever of his motorcycle was broken by the children of Abdul Rasheed and thereafter a scuffle took place and owing to that grudge, the appellant committed murder of the deceased. Admittedly, the motive part of the incident was not reported to the police by either of the party as it was so stated by Hafeez Ullah (PW.7) during cross-examination that we did not inform the police about dispute as to breaking of said clutch. Moreover, Abdul Ghaffar Birmani, SI/SHO (PW.8) stated in his cross-examination that he did not investigate the motive part of this case. We have also noted that no independent witness qua motive was associated during the course of investigation or brought in the witness box at trial. Therefore, we hold that prosecution has failed to substantiate motive against the appellant.
6. So far as the alleged recovery of 30 bore pistol (P.5) at the instance of the appellant is concerned, the same is a corroborative piece of evidence and relevant only if the primary evidence i.e. ocular account inspires confidence, which is not the situation in this case.
7. We have considered all the pros arid cons of this case and have come to this irresistible conclusion that the prosecution could not prove its case against the appellant beyond any shadow of doubt. It is by now well established principle of law that it is the prosecution, which has to prove its case against the accused by standing on its own legs and it cannot take any benefit from the weaknesses of the case of the defence. In the instant case, the prosecution remained failed to discharge its responsibility of proving the case against the appellant. It is also well established that if there is a single circumstance which creates doubt regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused, whereas, the instant case is replete with number of circumstances which have created serious doubt about the prosecution story. In this regard, reliance may be place on the case law reported as ‘‘Muhammad Akram versus The State” (2009 SCMR 230).
8. For the foregoing reasons, Criminal Appeal No. 1505 of 2019 filed by Muhammad Asif (appellant) is allowed, conviction and sentence awarded to him vide judgment dated 29.05.2018 passed by the learned trial Court are set aside and he is acquitted of the charge levelled against him while extending him benefit of doubt. Muhammad Asif (appellant) is in jail. He shall be released forthwith if not required to be detained in any other case.
9. Murder Reference. No. 76 of 2018 is answered in the NEGATIVE and the sentence of death awarded to Muhammad Asif (convict) is NOT CONFIRMED.
(K.Q.B.) Appeal allowed
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