PLJ 2023 Cr.C. (Note) 147
[Lahore High Court, Lahore]
Present: Malik Shahzad Ahmad Khan, J.
versus
STATE 3 others--Respondents
Crl. Rev. No. 879 of 2012, heard on 17.2.2023.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 324 & 337-F(v)--Conviction and sentence--Challenge to--Attempt to murder--Benefit of doubt--Moreover, if there was earlier rift between parties on abovementioned issue and they were not on speaking or visiting terms with each other despite their close relationship then as to why PW-2 accompanied petitioner on night of occurrence from his shop to canal bridge--These facts have created further doubt in prosecution case--It is noteworthy from perusal of impugned judgment of trial Court that co-accused were acquitted merely on basis of police opinion which becomes irrelevant after recording of prosecution evidence by trial Court--Prosecution could not prove its case against petitioner beyond shadow of doubt--Held: It is by now well settled that if there is a single circumstance which creates doubt regarding prosecution case, same is sufficient to give benefit of doubt to accused, whereas, instant case is replete with number of circumstances which have created serious doubts in prosecution case--Prosecution has
failed to prove its case against the petitioner beyond the shadow of doubt--Revision allowed. [Para 8, 9 & 10] A, B & C
2010 SCMR 660, 2008 SCMR 6, 2016 SCMR 1763, 1995 SCMR 1345 & 2009 SCMR 230 ref.
Syed Afzal Shah Bukhari, Advocate for Petitioner.
Ms. Asiya Yasin, Deputy District Public Prosecutor for State.
Mr. Muhammad Ishnaq Sahu, Advocate for Complainant.
Date of hearing: 17.2.2023.
Judgment
Mustafa petitioner was tried in a private complaint lodged for offences under Sections 324/337-F(v) of PPC relating to Police Station Basirpur District Okara by learned Judl. Magistrate Section-30, Depalpur. After conclusion of the trial, the learned trial Court vide its judgment dated 22.03.2010 has convicted and sentenced the petitioner as under:
Under Sections 324, PPC to undergo rigorous imprisonment for a period of four years for causing injury to Muhammad Ahmad injured (PW-2) with fine of Rs. 20,000/-(Rupees twenty thousand only) and in default thereof, to further undergo simple imprisonment for two months.
Under Section 337F(v), PPC to undergo rigorous imprisonment for a period of four years of causing injury to Muhammad Ahmad injured (PW-2). He was also directed to pay Daman of Rs. 20,000/-(Rupees twenty thousand only) to the injured and in default thereof, he was directed to be kept in jail to serve out simple imprisonment.
The learned trial Court, however, vide the same judgment has acquitted Mst. Bushra Bibi and Niaz Ahmad co-accused while extending them the benefit of doubt. All the sentences were directed to run concurrently. Benefit of Section 382-B of, Cr.P.C., was also extended in favour of the petitioner. The appeal filed by the petitioner before the learned Addl. Sessions Judge, Depalpur was dismissed vide impugned judgment dated 30.08.2012 and the convictions & sentences recorded by the learned trial Court were upheld & maintained. Hence, the present Criminal Revision Petition before this Court.
2. As per brief facts of the present case, given by Muhammad Ali complainant (PW-1) in the private complaint are that he was resident of Faizabad and a labourer by profession, whereas, his son, namely, Muhammad Ahmad (PW-2) had made a shop of tailor master at Diggi Suddarke. On 02.09.2004 at 08:00 p.m., Mustafa petitioner called the son of the complainant and took him to canal bridge, where, Niaz Ahmad and Mst. Bushra Bibi (co-accused since acquitted) were standing. The complainant & PWs followed them and witnessed that Mustafa petitioner made a fire shot with pistol which landed at the right elbow of Muhammad Ahmad (PW-2). Niaz Ahmad (co-accused since acquitted) made a fire shot hitting Muhammad Ahmad (PW-2) at his right flank and went through & through. Mst. Bushra Bibi (co-accused since acquitted) raised a ‘lalkara’ that Muhammad Ahmad (PW-2) should not be let alive. Motive behind the occurrence was that Niaz Ahmad (co-accused since acquitted) wanted to marry his daughter, namely, Mst. Bushra Bibi (co-accused since acquitted) with son of the complainant, namely, Muhammad Ahmad (PW-2) however, Muhammad Ahmad (PW-2) refused to accept the proposal and due to this grudge, the accused persons committed the occurrence.
Initially FIR No. 483 dated 03.09.2004 was lodged at Police Station Basirpur District Okara for offences under Sections 324/337-F(v)/337-F(i)/34 of PPC, against the petitioner and his co-accused however, being dis-satisfied with the police investigation, Muhammad Ali complainant (PW-1) lodged the private complaint.
3. After completion of investigation, the challan was prepared and submitted before the trial Court The learned trial Court recorded cursory statements of the witnesses of the complainant party and thereafter summoned the accused to face the trial The learned trial Court after framing of charge, recording of the prosecution evidence, as well as, statements of the accused under Section 342 of, Cr.P.C., and after hearing the arguments of learned counsel for the parties has convicted & sentenced the petitioner as mentioned and detailed above vide impugned judgment dated 22.03.2010, whereas, the appeal filed by the petitioner was dismissed by the learned Addl. Sessions Judge, Depalpur vide impugned judgment dated 30.8.2012 hence, the present criminal revision before this Court.
4. Arguments heard. Record perused.
5. Star witness of this case is Muhammad Ahmad (PW-2) who is the sole injured in this case. The occurrence in this case took place on 02.09.2004 at 08:00 p.m., (night). In his statement recorded by the learned trial Court, Muhammad Ahmad (PW-2) did not mention any source of light that as to how he identified the petitioner in the darkness of night. In his cross-examination, he frankly conceded that it was dark night on the relevant date. He further admitted that the occurrence took place at the bridge of canal and there was no source of light at the canal. He also stated that there was no residential area around the place of occurrence. He further stated that there was no patrol pump at the place of occurrence. Relevant part of his statement in this respect reads as under:
"جائے وقوعہ پر پٹرول پمپ نہ ہے بلکہ نہر ہے ۔۔۔۔۔۔۔۔۔۔۔۔۔ رات اندھیری تھی نہر کے کنارے کوئی روشنی نہ تھی جائے وقوعہ کے ارد گرد آبادی نہ ہے۔"
Under the circumstances, the identification of the petitioner in the darkness of night is not free from doubt.
6. It is further noteworthy that Muhammad Ahmad (PW-2) in his examination-in-chief has stated that on the night of occurrence, he was present at his shop along with Muhammad Ali (PW-1), Muhammad Ibrahim and Muhammad Yasin (given up PWs) when Mustafa petitioner came there and asked him (Muhammad Ahmad PW-2) that Niaz Ahmad (co-accused since acquitted) and Mst. Bushra Bibi (co-accused since acquitted) were calling him at the bridge of canal, whereupon, he accompanied the petitioner to the bridge of canal and the occurrence took place at the said bridge. In his statement recorded by the learned trial Court, he has not stated that his father Muhammad Ali (PW-1) also followed him or reached at the place of occurrence or he witnessed the occurrence. Though he stated during his cross-examination that the police met him at railway crossing and his statement, as well as, the statement of his father, namely, Muhammad Ali (PW-1) was recorded there but no where in his statement, he claimed that his father, namely, Muhammad Ali (PW-1) also witnessed the occurrence. Under the circumstances, presence of Muhammad Ali (PW-1) at the spot at the relevant time becomes doubtful.
7. It is further noteworthy that during his cross-examination, Muhammad Ahmad (PW-2) stated that he received injuries from a distance of 2/3 karams from the accused. Relevant part of his statement in this respect reads as under:
"فائر 02/03 کرم سے لگے تھے۔"
It is therefore, evident that Muhammad Ahmad injured (PW-2) claimed that he received injuries on his body from a distance of 2/3 karams meaning thereby he received injuries from a distance of 10-15 feet from the accused but according to the evidence of Dr. Aftab Iqbal Rana (PW-3), blackening was present on the entry wound of right elbow of Muhammad Ahmad (PW-2) which injury was attributed to the petitioner. Even blackening was present on the skin deep wound on the abdomen of Muhammad Ahmad (PW-2) which was assigned to father of the petitioner, namely, Niaz Ahmad (co-accused since acquitted). It is therefore, evident that there was conflict between the ocular account and the medical evidence of the prosecution because blackening around the wound can only occur if fire shot is made from a distance of 3/4 feet. Reliance in this respect may be placed on the cases of ‘Barkat Ali vs. Muhammad Asif and others’ (2007 SCMR 1812), ‘Muhammad Ishaq vs. The State’ (2007 SCMR 108), ‘Zahir Yousaf and another vs. The State and another (2017 SCMR 2002) and ‘Faiz Meeran vs. Muhammad Khan and others’ (2016 SCMR 1456).
8. According to the prosecution case, motive behind the occurrence was that the petitioner insisted Muhammad Ahmad (PW-2) to marry with his sister, namely, Mst. Bushra Bibi (co-accused since acquitted) and on refusal of the injured, the occurrence was committed by the petitioner and his co-accused. Muhammad Ahmad (PW-2) was duly confronted with his previous statement wherein no such allegation was levelled by the said witness and improvements made by him in this respect were duly brought on the record. He further stated during his cross-examination that he or his father, namely, Muhammad Ali (PW-1) were not even on speaking terms with the accused party of this case. He further stated that they never visited the houses of each other. He also stated that there was no discussion with parents of Mst. Bushra Bibi regarding her marriage with him prior to the occurrence and he never expressed his wish in this respect with the brother or father of said Mst. Bushra Bibi (co-accused since acquitted). Relevant parts of his statement in this respect read as under:
"میں نے اپنے بیان سرسری میں یہ بات تحریر کرائی تھی کہ ملزمان نے کہا تھا کہ تمہاری شادی بشری سے کرنا چاہتے ہیں میں نے انکار کر دیا۔ تقابل Ex.DA سے کیا گیا۔ ایسا تحریر نہ ہے درست ہے کہ میرے والد محمد علی اور میرا ملزم فریق کے ساتھ وقوعہ سے قبل بول چال نہ تھا اور نہ ہی آنا جانا تھا۔ میرا والد اور نیاز احمد ملزم آپس میں خالہ زاد ہیں ۔۔۔۔۔۔۔۔۔۔۔۔ میری بشری کے والدین کے ساتھ وقوعہ سے قبل شادی کی بات نہ چلتی تھی۔ میں نے بشری ملزمہ کے والد اور بھائی کے بھی بشری کے ساتھ رشتے کی خواہش نہ کی تھی۔"
It is therefore, evident from the perusal of the abovementioned prosecution evidence that the story of the prosecution was result of dishonest improvement and when the parties were not even on visiting or speaking terms then there was no occasion for the petitioner to ask Muhammad Ahmad (PW-2) to many with his sister and refusal of the said witness to do so. Under the circumstances, the prosecution story qua the motive is not worthy of reliance. Moreover, if there was earlier rift between the parties on the abovementioned issue and they were not on speaking or visiting terms with each other despite their close relationship then as to why Muhammad Ahmad (PW-2) accompanied the petitioner on the night of occurrence from his shop to the canal bridge. These facts have created further doubt in the prosecution case.
9. It is further noteworthy that the prosecution also implicated Mst. Bushra Bibi co-accused & Niaz Ahmad co-accused in this case but they have been acquitted by the learned trial Court on the basis of same evidence, whereas, the petitioner has been convicted & sentenced without any independent corroboration of the prosecution evidence against him. It is noteworthy from the perusal of the impugned judgment of the learned trial Court that the abovementioned co-accused were acquitted merely on the basis of police opinion which becomes irrelevant after recording of prosecution evidence by the learned trial Court, as observed by the Hon’ble Supreme Court of Pakistan in the case of ‘Muhammad Ahmad (Mahmood Ahmed) and another vs. The State’ (2010 SCMR 660) hence, the case of the petitioner is not distinguishable merely on the basis of police opinion. It is further noteworthy that Niaz Ahmad (co-accused since acquitted) was assigned the role of making a fire shot which landed on the right flank of Muhammad Ahmad (PW-2) and the said injury was available in the MLR of injured PW as Injury No. 3. Under the circumstances, case of the petitioner is not distinguishable from the case of Niaz Ahmad co-accused on merits but the said co-accused has been acquitted by the learned trial Court and no appeal has been filed by the prosecution against acquittal of the said co-accused therefore, prosecution evidence which has been disbelieved against Niaz Ahmad co-accused cannot be believed against the petitioner in absence of independent corroboration which is very much lacking in this case. Reliance in this respect may be placed on the cases of ‘Akhtar Ali and others vs. The State’ (2008 SCMR 6) & ‘Shahbaz vs. The State’ (2016 SCMR 1763).
10. I have considered all the aspects of this case and have come to this irresistible conclusion that the prosecution could not prove its case against the petitioner beyond the shadow of doubt. It is by now well settled 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 doubts in the prosecution case. In the case of ‘Tariq Pervez vs. The State’ (1995 SCMR 1345), the Hon’ble Supreme Court of Pakistan, at page 1347, was pleased to observe as under:
‘5 ..... The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right.’
The Hon’ble Supreme Court of Pakistan while reiterating the same principle in the case of ‘Muhammad Akram vs. The State’ (2009 SCMR 230), at page 236, observed as under:
‘13 ..... It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right.”
11. In the light of above discussion, I have come to this irresistible conclusion that the prosecution has failed to prove its case against the petitioner beyond the shadow of doubt, therefore, I accept Criminal Revision No. 879 of 2012 filed by Mustafa petitioner, set aside his conviction and sentence recorded by the learned trial Court vide judgment dated 22.03.2010 & upheld by the learned Appellate Court vide impugned judgment dated 30.08.2012 and acquit him of the charges by extending him the benefit of doubt. He is present before the Court on bail. His bail bonds are, directed to be released and his surety stands discharged from liability.
(A.A.K.) Revision allowed
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