PLJ 2023 Cr.C. 507 (DB)
[Lahore High Court, Lahore]
Present: Sadaqat Ali Khan and Shehram Sarwar ch., JJ
SAJID HUSSAIN--Appellant
versus
STATE etc.--Respondents
Crl. A. No. 717, 771 & M.R No. 95 of 2018, heard on 31.10.2022.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302/34--Acquittal of co-accused--Contradiction in ocular and medical evidence--Acquittal of--one appellant made fire shot which landed in front of chest of one deceased out of three--Second fire shot made by second appellant also hit in the chest of same deceased--PW-2 has not stated in his examination-in-chief that the complainant was also present at the time of occurrence at the place of occurrence--Site Plan of place of occurrence does not show the house of PW-2 around the house of occurrence who being chance witness has failed to prove his presence--Eye-witnesses stated that fire shot made by co-accused (since acquitted) with 30-bore pistol hit on the back of lady deceased which is an exit wound--Remaining Co-accused have been acquitted by the Trial Court--Dr./PW-8 during post-mortem examination of third decased observed two independent firearm entry wounds on the chest of said deceased which have neither been attributed to any of the accused--Facts discussed above suggest that they/ PW-1 and PW-2 were not present at the time of occurrence at the place of occurrence--Co-accused has not been found involved in the occurrence--Complainant has not challenged this opinion of the police even by filing private complaint--The story of the eye-witnesses is neither plausible nor believable--Co-accused persons (since acquitted) and is not believable to the extent of the appellants in absence of independent corroborative piece of evidence--Impugned judgment are hereby set-aside--They are acquitted of the charge--Appeal accepted. [Pp. 510, 511 & 512] A, B, C, D, E, F, G, H, I, J
2016 SCMR 1763 ref.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302/34--Benefit of doubt--For giving benefit of doubt, it is not necessary that there should be many circumstances creating
doubt--If there is circumstances 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. [P. 512] K
M/s. Kh. Qaisar Butt, Ali Akhtar Bodla, Advocates for Appellant.
M/s. Syed Mehar Hussain Shah, Faisal Khan Bhadha, Nadia Hussain, Advocates for Appellant.
M/s. Malik Nazar Hussain Punian and Muhammad Shafi Mirali, Advocates for Complainant.
Mr. Muhammad Ali Shahab, DPG for State.
Date of hearing: 31.10.2022.
Judgment
Sadaqat Ali Khan, J.--Appellants (Sajid Hussain and Muhammad Rafique) alongwith co-accused Farhan, Zeeshan, Muhammad Nasir, Tanveer Hussain alias Fayyaz Hussain, Abid Hussain and Mohammad Rehan (since acquitted) have been tried by learned trial Court in case FIR No. 146 dated 10.09.2013 offences under Sections 302, 148, 149, PPC registered at Police Station Rangpur, District Muzaffargarh and were convicted and sentenced vide judgement dated 07.08.2018 as under:--
1. Sajid Hussain (appellant)
U/S 302(b)/34, PPC Sentenced to death as Tazir on three counts for committing Qatl-i-Amd of Zulfiqar, Muhammad Masood and Mst. Tasleem Mai (deceased) with compensation of Rs. 3,00,000/- each (Total Rs. 9,00,000/- ) payable to legal heirs of each deceased u/S. 544-A, Cr.P.C. recoverable as arrears of land revenue.
2. Muhammad Rafique (appellant)
U/S 302(b)/34, PPC Sentenced to death as Tazir on three counts for committing Qatl-i-Amd of Zulfiqar, Muhammad Masood and Mst. Tasleem Mai (deceased) with compensation of Rs. 3,00,000/- each payable to legal heirs of each deceased u/S. 544-A, Cr.P.C. recoverable as arrears of land revenue.
2. Appellants have filed this Criminal Appeal against their convictions and learned trial Court has sent Murder Reference for confirmation of their death sentences or otherwise, whereas complainant has filed criminal appeal against acquittal of respondents/ accused, which are being decided through this single judgment.
3. Brief facts of the case have been stated by Ghulam Mustafa complainant P.W.1 in his statement before learned trial Court, which is hereby reproduced as under for narration of the facts:--
Stated that three year, 17 days ago I, Zulftqar, Muhammad Masood, Tasleem and other family members were sleeping in our house. At about 1 mid night the dogs of our house barked we woke up a electricity bulb was lightening in the Courtyard, we saw that Sabir Husaln Abid Hussain, Sajid, Rafique and Muhammad Rehan present in the Court all armed with pistol 30 bore raised lalkora and inquired about Mst. Rabia and Zulfiqar. We all family numbers got up, Muhammad Rafique with his pistol made fire shot which landed in front of chest of Zulfiqar. Second fire shot made by Sajid Hussain also hit in the chest of Zulfiqar who fell down in injured condition. My brother Masood stepped forward to rescue of Zulfiqar, upon which Abid Hussain made fire shot with his pistol which landed at his right (pindli) who fell down on the ground in injured condition. My sister Mst. Tasleem bibi, moved forward for the rescue of her brother, when Sabir Hussain made fire shot with his pistol which hit on front of her chest and she fell down in injured condition, Muhammad Rehan made fire shot with his pistol which hit on the back of Mst. Tasleem Mai in fallen condition. 7/8 unknown accused who were present out side the chardewari kept firing with their fire arms to make harassment. Noise of firing attracted witnesses Maqbool Ahmad and Munir Ahmad on the spot alongwith other residents of the locality. The accused are neighbor of the witnesses so they Identified them in the light of the bulb. The accused brandishing their weapons and making ariel firing went towards theif houses in the west.
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. The detail of prosecution case has already been given in para 3 of this judgment, therefore, there is no need to repeat the same to avoid duplication and repetition.
ii. Tasleem Mai and her brothers Zulfiqar and Muhammad Masood were done to death in their house on 10.09.2013 at 1:00 a.m. (night), whereafter FIR was lodged on the same night at 2:30 a.m. on the statement of their brother Ghulam Mustafa complainant PW-1, who and his Maqbool-Ahmad PW-2 claim themselves to be the eye-witnesses of the occurrence.
iii. Maqbool Ahmad PW-2 being close relative of Ghulam Mustafa complainant PW-1 has not stated in his examination-in-chief that the complainant was also present at the time of occurrence at the place of occurrence and had witnessed the occurrence rather stated that Munir Ahmad (given up P.W.) witnessed the occurrence. In these circumstances, presence of Ghulam Mustafa complainant PW-1 at the place of occurrence at the time of occurrence is not free from doubt. Site plan of place of occurrence does not show the house of Maqbool Ahmad P.W. 2 around the house of occurrence who being chance witness has failed to prove his presence at the time of occurrence i.e. 1:00 a.m. (odd hours of night) with his stated reasons.
vi. Both the eye-witnesses stated that fire shot made by Rehan co-accused (since acquitted) with 30-bore pistol hit on the back of Tasleem Mai deceased which is an exit wound as observed by lady Dr. Nusrat Rehman P.W. 4 during her post-mortem examination. No other injury has been attributed to Rehan co-accused on the persons of Tasleem Mai, Zulfiqar and Muhammad Masood (deceased). Rehan co-accused has been acquitted by the learned trial Court through the impugned judgment by disbelieving the evidence of both the eye-witnesses.
(v) Abid Hussain co-accused has been attributed fire shot with 30-bore pistol hitting on right calf (پنڈلی) of Muhammad Masood deceased. Dr. Aamir Bilal P.W. 8 during post-mortem examination of Muhammad Masood deceased observed two independent firearm entry wounds on the chest of Muhammad Masood deceased which have neither been attributed to any of the accused including appellants nor have been explained by the eye-witnesses who had otherwise given photographic narration of the incident. In these circumstances, these two injuries must have been explained by the eye-witnesses. Facts discussed above suggest that they (Ghulam Mustafa complainant P.W. 1 and Maqbool Ahmad P.W. 2) were not present at the time of occurrence at the place of occurrence, had they been present at the time of occurrence at the place of occurrence, these two injuries would have been explained by them. Abid co-accused (since acquitted) was attributed firearm injury on right calf (پنڈ لی) of Muhammad Masood deceased but has not been found involved in the occurrence, as admitted by Ghulam Mustafa complainant P.W. 1 himself in his cross-examination. Complainant has not challenged this opinion of the police even by filing private complaint. (2019 SCMR 1978) “Safdar Mehmood and others vs. Tanvir Hussain and others”.
vi. The appellants have been attributed two independent firearm injuries on the person of Zulfiqar deceased and have not been attributed any injury on the persons of Other two deceased (Tasleem Mai and Muhammad Masood). In the circumstances discussed above, the story of the eye¬witnesses is neither plausible nor believable which has rightly been discarded by the learned trial Court to the extent of co-accused Farhan, Zeeshan, Muhammad Nasir, Tanveer Hussain alias Fayyaz Hussain, Abid Hussain and Mohammad Rehan (since acquitted) and is not believable to the extent of the appellants in absence of independent corroborative piece of evidence which is conspicuously missing in the present case. (2016 SCMR 1763) “Shahbaz vs. -The State”.
vii. Recovery of pistols on pointing out of the appellants in presence of negative report of PFSA qua matching of crime empties with weapon of offence is not only inconsequential rather draws adverse inference.
viii. Motive of the occurrence that Zulfiqar had contracted love marriage with Rabia daughter of Abid Hussain co-accused is also not believable as Abid Hussain co-accused has been acquitted by the learned trial Court through the impugned judgment by disbelieving the motive.
5. In view of the above discussion, we entertain serious doubt in our minds regarding participation of Sajid Hussain and Muhammad Rafique appellants and their co-accused since acquitted mentioned above 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, instant criminal appeal is accepted, convictions and sentences of Sajid Hussain and Muhammad Rafique appellants awarded by the learned trial Court through the impugned judgment are hereby set-aside. They are acquitted of the charge and are directed to be released forthwith if not required in any other case. Murder Reference is answered in NEGATIVE and death sentences of appellants (Sajid Hussain and Muhammad Rafique appellants) are NOT CONFIRMED.
7. In view above decision, criminal appeal filed by the complainant against acquittal of respondents/accused having no merits is dismissed.
(K.Q.B.) Appeal accepted
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