PLJ 2023 Cr.C. (Note) 117
[Lahore High Court, Multan Bench]
Present: Sohail Nasir, J.
NAWAZ--Petitioner
versus
STATE and another--Respondents
Crl. Rev. No. 594 of 2016, heard on 12.10.2021.
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 435, 439 & 337-F(v)--Criminal revision--Conviction and sentence--There are serious contradictions and infirmities in this case for which prosecution has no good answer and those are as under:--
1. If complainants etc. were in wagon and they found their enemies in way possessed with fire ann weapons, there was no fun for them to stop wagon and if they did so, there was no reason for them to come out from vehicle.
2. There was allegations of joint firing before specific fire attributed to petitioner and even thereafter allegations of joint firing was there but on crime scene not a single empty was found.
4. About same occurrence FIR No. 207 on 29.05.2009 at Police Station Harappa was recorded but Investigating Officer was not requested to be examined as a Court witness or even complainant did not produce him in his support.
4. Admittedly after investigation FIR was recommended to cancellation as case was found false.
6. The Radiologist who had given opinion with regard to fracture was not produced, therefore, petitioner could not be convicted under Section 337-F(v), PPC.
7. The FIR at instance of complainant recorded at Police Station Harappa is an admitted fact which shows that matter was reported to police after about 24 hours as FIR was recorded on 29.05.2009 at 05:50 pm whereas occurrence was of 28.05.2009 at 08:00 pm--This delay in given circumstances is fatal to prosecution.
8. Unchallenged acquittal of Iqbal and Bahawal who were also assigned firing at crime scene, has also made case doubtful to extent of petitioner for reason that when witnesses were disbelieved to extent of Iqbal and Bahawal there was no question to believe them qua petitioner.
Prosecution has badly failed to prove its case.
[Para 9] B, C, D, E, F & G
Duty of Prosecution--
----It appears that both learned Courts below ignored settled principles that it is duty of prosecution to prove its case beyond reasonable doubt and if this duty is not discharged, accused has to be acquitted not as a matter of grace but as a matter of right. [Para 8] A
Mr. Kabeer Ahmad Gill, Advocate for Petitioner.
Mr. Muhammad Ashraf Sial, Advocate for Respondent.
Mr. Muhammad Laeeq-ur-Rahman, ADPP for State.
Date of hearing : 12.10.2021.
Judgment
Nawaz (petitioner) along with Zulfiqar Ali (since died), Iqbal and Bahawal were tried in a private complaint filed by Zulfiqar Ali/Respondent No. 2 (complainant) and on conclusion thereof vide a judgment dated 23.01.2016 passed by the learned Magistrate Section 30 Sahiwal, petitioner was convicted most probably under Section 337-F(v), PPC and sentenced to pay Rs. 40,000/- (forty thousand) as Daman to Muhammad Aslam/injured (PW-2) and also to undergo 1½ years RI as Tazeer. Iqbal and Bahawal were acquitted on the basis of same judgment whereas Zulfiqar had died during the trial proceeding.
2. Petitioner then filed an appeal which was dismissed vide a judgment dated 23.09.2016 passed by the learned Additional Sessions Judge Sahiwal.
3. Being aggrieved from the decisions of two Courts below petitioner has knocked the door of this Court through the instant criminal revision.
4. It was alleged in complaint by Zulfiqar Ali (PW-1) that on 28.05.2009 at about 08:00 pm he along with Muhammad Aslam (PW-2) and Bahadar Ali (PW-4) were returning to their Village on a wagon and when they reached near Kathiadar, there emerged petitioner and his co-accused; Nawaz/petitioner and Muhammad Iqbal were in possession of guns whereas Zulfiqar was having a rifle and Bahawal was in possession of 222 rifle; they/complainant etc. intercepted the wagon and started firing; they/complainant etc. came down from the wagon and at that occasion petitioner Zulfiqar Ali made a fire with his 12-bore gun that hit on the left calf of Muhammad Aslam who being injured fell down on the ground and all accused while firing had escaped from crime scene.
5. After issuance of processes petitioner and his co- accused turned up who pleaded not guilty to the charge framed on 18.06.2011 under Sections 324/148/149, PPC, whereafter Zulfiqar/complainant came in witness box as PW-1, who also produced Muhammad Aslam (PW-2), Mehmood Ali (PW-3) and Bahadar Ali (PW-4). The learned trial Court also examined Ghulam Mohy-ud-Din SI/author of FIR (CW-1) and Dr. Muhammad Akram Chaudhiy (CW-2). In their examinations under Section 342, Cr.P.C. version of petitioner and his co-accused was that the witnesses had deposed falsely.
6. Learned counsel for petitioner contends that the learned trial Court without appreciating the evidence wrongly convicted the petitioner and even the learned appellate Court did not bother to appreciate the entire material in a proper manner.
7. On the other hand learned ADPP and learned counsel for complainant jointly maintained that although occurrence took place at 08:00 pm but as both parties were known to each other hence the question of misidentification does not arise; Muhammad Aslam is an injured witness whose presence at crime scene is fully established so he was rightly believed by the learned trial Court; the medical evidence has also corroborated the version of complainant and the injured; defence was unable to shatter the credibility of any of the witnesses. They finally argued that there is no occasion for this Court to interfere in the well-reasoned judgments of two Courts below.
8. It appears that both the learned Courts below ignored the settled principles that it is the duty of prosecution to prove its case beyond reasonable doubt and if this duty is not discharged, accused has to be acquitted not as a matter of grace but as a matter of right.
9. There are serious contradictions and infirmities in this case for which prosecution has no good answer and those are as under:--
1. If complainants etc. were in the wagon and they found their enemies in the way possessed with fire arm weapons, there was no fun for them to stop the wagon and if they did so, there was no reason for them to come out from the vehicle.
2. There was the allegations of joint firing before the specific fire attributed to petitioner and even thereafter the allegations of joint firing was there but on crime scene not a single empty was found.
3. They were on the wagon but there is no evidence at all that any of the bullets or pellet hit the vehicle.
4. About the same occurrence FIR No. 207 on 29.05.2009 at Police Station Harappa was recorded but the Investigating Officer was not requested to be examined as a Court witness or even the complainant did not produce him in his support.
5. Admittedly after the investigation the FIR was recommended to cancellation as the case was found false.
6. The Radiologist who had given the opinion with regard to fracture was not produced, therefore, the petitioner could not be convicted under Section 337-F(v), PPC.
7. The FIR at the instance of complainant recorded at Police Station Harappa is an admitted fact which shows that the matter was reported to the police after about 24 hours as the FIR was recorded on 29.05.2009 at 05:50 pm whereas the occurrence was of 28.05.2009 at 08:00 pm. This delay in given circumstances is fatal to prosecution.
8. Unchallenged acquittal of Iqbal and Bahawal who were also assigned firing at crime scene, has also made the case doubtful to the extent of petitioner for the reason that when the witnesses were disbelieved to the extent of Iqbal and Bahawal there was no question to believe them qua the petitioner.
10. In view of above circumstances, I find no difficulty to hold that prosecution has badly failed to prove its case beyond shadow of doubt against Nawaz (petitioner) also hence this Criminal Revision is allowed. Impugned judgment passed by the learned Additional Sessions Judge is set aside, whereas impugned judgment rendered by the learned trial Court to the extent of convicting the petitioner is also set aside. Petitioner is on bail. His surety is discharged from terms and condition of surety bonds.
(A.A.K.) Revision allowed
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