PLJ 2023 Cr.C. (Note) 226
[Lahore High Court, Lahore]
Present: Syed Shahbaz Ali Rizvi and Sardar Muhammad Sarfraz, Dogar, J.
MUHAMMAD AKRAM--Appellant
versus
STATE--Respondent
Crl. A. 2244 of 2016 & M.R. No. 174 of 2017, heard on 15.2.2022.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b), 324 & 34--Qatl-e-amd--Conviction and sentence--Challenge to--Delay in post-mortem--Re-appraisal of evidence--Such delay is generally suggestive of a real possibility that time was consumed by police and complainant’s party in consultation and deliberation in order to procure and planting eyewitnesses and in cooking up a story for prosecution before preparing police papers necessary for getting a postmortem examination of dead body conducted--There is no explanation at all, available on record for such delay--So it was a case of delayed postmortem, which casts serious doubt that FIR was got recorded with promptitude as claimed by prosecution, and inference can be drawn that time had been consumed by police in consultation and deliberation for procuring and planting eye-witnesses and in cooking up a story for prosecution before preparing police papers necessary for getting a postmortem examination of dead body conducted--The presence of injured witnesses cannot be doubted at place of incident, but question is as to whether they are truthful witnesses or otherwise, because merely injuries on persons of P.Ws. would not stamp them truthful witnesses--The delay in F.I.R. and postmortem examination further confirms that F.I.R. and documents i.e. inquest report etc. were prepared much after given time as claimed by prosecution witnesses--Moreover, motive, abetment, and recovery are merely corroborative pieces of evidence and when ocular account is disbelieved, no reliance can be placed on corroborative pieces of evidence to convict appellant--In these circumstances, we are of considered view that prosecution has utterly failed to prove its case against appellant beyond any shadow of doubt--Appeal accepted. [Para 7, 9 & 12] A, B, C & D
2017 SCMR 344, 2018 SCMR 911, 2018 SCMR 787 & 2011 SCMR 323.
Mr. Irfan Niaz Gondal Advocate for Appellant.
Sana Ullah, Deputy Prosecutor General for State.
Nemo for Complainant.
Date of hearing: 15.2.2022.
Judgment
Sardar Muhammad Sarfraz Dogar, J.--This judgment shall dispose of Criminal Appeal No. 2244 of 2016 (Muhammad Akram v. The State) and Murder Reference No. 174 of 2017 sent by the learned trial Court for confirmation or otherwise of the sentence of death awarded to the appellant, as both arise out of the same FIR No. 738/2011, dated 07.9.2011, under Sections 302, 324, 34, PPC, registered with the Police Station Nishatabad, Faisalabad and judgment dated 16.12.2016 passed by the learned Additional Sessions Judge, Faisalabad, whereby, the appellant was convicted for murder of Arshad Ijaz under Section 302(b), PPC and sentenced to death with a further direction to pay a compensation of Rs. 2,00,000/-as provided under Section 544-A, Cr.P.C. to the legal heirs of the deceased and in case of default whereof to further undergo four months S.I. He was also convicted under Section 324, PPC for making murderous assault on Noor Ahmed (PW-5) and Zulqarnain (PW-6) and sentenced to suffer ten years’ R.I. on two counts with a direction to pay a fine of Rs. 20,000/-to the injured and in default whereof to further undergo two months’ S.I. Appellant was further convicted under Section 337-F(1), F(iii) and F(v), PPC and sentenced as under:--
(i) Under Section 337-F(i), PPC, he was sentenced to one Year’s R.I. as ta’zir and Daman of Rs. 5000/- to be paid to the injured person.
(ii) Under Section 337-F(iii), PPC, he was sentenced to three Years’ R.I. on two counts as ta’zir and Daman of Rs. 10,000/-to be paid to each of the injured.
(iii) Under Section 337-F(v), PPC, he was sentenced to three years’ R.I. and Daman of Rs. 10,000/-to be paid to Injured Zulqarnain.
All the sentence were ordered to be run concurrently. The benefit of Section 382-B, Cr.P.C. was also granted to the appellant.
2. Brief facts of the case, as given by Abdul Kareem complainant (PW-7) in the FIR (Exh.PG/1), chalked out on his application (Exh.PG) are that on 07.9.2011, at about 6.30 p.m., his brothers Muhammad Nawaz, Arshad Ijaz and nephews Noor Ahmed, Zulfiqarnain along with friends of his brothers Muhammad Ishfaq and Iftikhar Hussain were seated on a thara in front of their houses, when, accused Muhammad Akram (appellant) and Ali Raza (since P.O.), while armed with repeater .12 bore, came there on a motorcycle and started straight firing, which hit abdomen of Arshad Ijaz, who injured and fell on the ground. Because of said firing, Noor Ahmed (PW-5) also received firearm injuries on his right and left legs, whereas, Zulqarnain (PW-6) received fire shot injuries on his right hand and right leg. However, remaining persons present with them were luckily saved. The occurrence was witnessed by them. They also tried to apprehend the accused but they fled away. They attended the injured and conveyed them to Allied Hospital for their treatment. In the way, they called on 1122 and handed over the injured persons to them. The complainant’s brother Arshad Ijaz succumbed to the injuries on the way to hospital. It has further been mentioned in the F.I.R. that the occurrence was committed with the abetment of Muhammad Ashraf and Irshad Ahmed (since acquitted). The motive stated in the F.I.R. was that Irshad Ahmed accused got an FIR lodged with regard to commission of dacoity of a tractor-trolly against Noor Ahmed, etc. wherein Noor Ahmed was exonerated.
3. After completion of investigation, the report under Section 173, Cr.P.C. was prepared by placing names of Muhammad Ashraf, Irshad Hussain and Ali Raza (P.O) in column No. 2 being innocent and submitted before the learned trial Court, copies were distributed to the accused as required under Section 265-C, Cr.P.C., charge was framed to which accused pleaded not guilty and claimed trial. In order to prove its case, prosecution as many as 17 witnesses got examined during the trial besides tendering reports of Chemical Examiner (Exh.PO) and that of Serologist (Exh.PQ). The appellant and his co-accused were examined under Section 342, Cr.P.C. They opted not to depose on Oath as required under Section 340(2), Cr.P.C. However, the appellant produced certified copy of FIR 599/2012 (Exh.D-1) and clippings of newspaper (Mark-A & B).
4. Upon conclusion of the trial, the learned trial Court after finding the prosecution’s case against the appellant to have been proved beyond reasonable doubt convicted and sentenced him as mentioned and detailed above. However, co-accused Muhammad Ashraf and Irshad Ahmed were acquitted of the charge by giving them benefit of doubt.
5. We have heard the learned counsel for the parties at length and also gone through the record of this case with due care and caution.
6. Occurrence in this case took place on 07.9.2011 at 6.30 p.m., the matter was reported by Abdul Kareem complainant (PW-7) through a written application (Exh.PG) to the police at 7.30 p.m. on the same day in the hospital and the FIR (Exh.PG/1) was lodged on the same. It is pertinent to mention here that no time of chalking out of FIR is mentioned in the relevant column of FIR rather simpliciter mentioned the date of lodging of FIR i.e. 07.9.2011.
7. The promptitude shown by the prosecution in reporting the matter to the Police in this case is highly doubtful as the postmortem examination of deceased Arshad Ijaz was conducted on the following day i.e. 08.9.2011 at 9.00 a.m. i.e. almost with the delay of more than 13 hours despite of the fact that both the injured Noor Ahmed (PW-5) and Zulqarnain (PW-6), who have allegedly sustained injuries in the same occurrence were medically examined on 07.9.2011 at 7.15 p.m. and 7.25 p.m. respectively. Such delay is generally suggestive of a real possibility that time was consumed by the police and complainant’s party in consultation and deliberation in order to procure and planting eye-witnesses and in cooking up a story for the prosecution before preparing police papers necessary for getting a postmortem examination of the dead body conducted. The wisdom is derived from the case reported as Sardar Bibi and another v. Munir Ahmed and others (2017 SCMR 344), wherein the Hon’ble Supreme Court of Pakistan in the similar facts and circumstances has raised suspicion upon prompt registration of the FIR whereby the postmortem examination on the dead body was conducted after 7 hours of the lodging of FIR. According to the Dr. Javed Iqbal (PW-3), who conducted the postmortem examination on the dead body of the deceased on 08.9.2011 at 9.00 a.m., as soon he received the police papers he started postmortem examination on the dead body of deceased Arshad Ijaz. As per his opinion the time between the death and postmortem examination was 12 to 24 hours. We have noticed that the dead body was reached in the hospital before arriving of police in the hospital and the matter was reported to the Police in the hospital at 7.30 p.m. but the postmortem examination was conducted on the next day i.e. 08.9.2011 at 9.00 a.m., what happened in between 7.30 p.m. to 09.00 a.m., which delayed the postmortem examination for more than thirteen hours. There is no explanation at all, available on record for such delay. So it was a case of delayed postmortem, which casts serious doubt that the FIR was got recorded with promptitude as claimed by the prosecution, and the inference can be drawn that time had been consumed by the police in consultation and deliberation for procuring and planting eye-witnesses and in cooking up a story for the prosecution before preparing police papers necessary for getting a postmortem examination of the dead body conducted. Reliance is placed on Mst. Nazia Anwar v. The State and others (2018 SCMR 911) and Nazir Ahmad v. The State (2018 SCMR 787).
8. Now, we would like to discuss the ocular account to see whether the prosecution has proved its case against the appellant to the hilt to maintain his conviction on a capital charge and to what extent it succeeded to discharge the said onus. Abdul Kareem (PW-7) is complainant of the case and real brother of the deceased, namely, Arshad Ijaz. It is pertinent to mention here that in the complaint (Exh.PG) and FIR (Exh.PG/1), Noor Ahmed (PW-5) and Zulqarnain (PW-6) were mentioned as injured eye-witnesses of the occurrence. In the FIR (Exh.PG/1), indiscriminate firing is attributed to the appellant and his co-accused Ali Raza and no specific fire was attributed to any of them but while appearing before the learned trial Court, they have attributed fires to the appellant on the person of Arshad Ijaz deceased as well as injured witnesses. Apart from the above improvements, there are many other contradictions qua the testimonies of complainant and injured eye-witnesses, who claimed to be present at the spot. The above improvements and contradictions are of the kind which cannot be overlooked and statement of such a witness requires independent corroboration without which no reliance can be placed on the testimony of this type of a witness.
9. So far as testimony furnished by Noor Ahmad injured eyewitness (PW-5) is concerned, admittedly, he is real nephew of complainant as well as deceased Arshad Ijaz and as per deposition of Asim Rasheed S.I./I.O. (PW-17) during investigation it also transpired that Noor Ahmed injured eye-witness (PW-5) got a false case registered against the appellant vide FIR No. 289/2011, under Section 324, PPC, Police Station Nishatabad, Faisalabad, which was subsequently cancelled being false. In the given state of affairs, Noor Ahmed injured (PW-5) can safely be termed as inimical and interested witness as the enmity of Noor Ahmed injured (PW-5) with the appellant is a proved fact. The statement of an inimical and interested witness requires strong corroboration in order to maintain conviction but the other injured witness examined in the case by the prosecution namely Zulqarnain (PW-6) was also found to be related with the deceased and complainant being son of their cousin. Moreover, while facing cross-examination, he (PW-6) deposed that neither his statement was recorded by the Police nor he visited the police station. From the above evidence of the injured eye-witnesses i.e. PW-5 & 6, they do not appear to be truthful witnesses; therefore, no implicit reliance can be placed on their evidence. Certainly, the presence of the injured witnesses cannot be doubted at the place of incident, but the question is as to whether they are truthful witnesses or otherwise, because merely the injuries on the persons of P.Ws. would not stamp them truthful witnesses. Reliance is placed on Amin Ali and another v. The State (2011 SCMR 323).
10. As regards testimony of Abdul Kareem complainant (PW-7) is concerned, his statement also cannot be relied upon only for the reason that his presence at the time and place of occurrence has not been shown in the site plan (Exh.PJ). Muhammad Nawaz, Muhammad Ishfaq and Iftikhar Hussain eye-witnesses were shown eye-witnesses in the FIR, but none of them has been examined to support the prosecution case.
11. Besides above, Asim Rasheed S.I./I.O. (PW-17) while facing cross-examination deposed that in his investigation it transpired that one Shehbaz son of Manzoor caused firing upon deceased and injured P.W. Just after the occurrence, Atif Mehmood SI/SHO reached the place of occurrence and legal heirs of the deceased informed SHO about the involvement of Shehbaz son of Manzoor in the occurrence. On 29.11.2011, DSP Circle verified his investigation and on 30.11.2011 he got prepared report under Section 173, Cr.P.C. We have also noticed that both the injured persons PW-5 and PW-6, while providing history of occurrence to the Medical Officer, at the time of their medical examination, have failed to mention the names of culprits in the medical history. The abetment and motive part of the occurrence are also disbelieved by the learned trial Court while acquitting co-accused Muhammad Ashraf and Irshad Ahmed, against whom, the prosecution has not filed any appeal before this Court. The recovery of repeater .12 bore (P-3) is legally inconsequential and cannot be considered as corroborative piece of evidence because no report of PFSA is available on the record regarding the matching of the crime empties allegedly recovered from the place of occurrence with the said repeater gun.
12. As discussed above, it has been observed by us that F.I.R. was chalked out after consultation and deliberation. The delay in the F.I.R. and postmortem examination further confirms that F.I.R. and documents i.e. inquest report etc. were prepared much after the given time as claimed by the prosecution witnesses. Moreover, the motive, abetment, and recovery are merely corroborative pieces of evidence and when the ocular account is disbelieved, no reliance can be placed on the corroborative pieces of evidence to convict the appellant. In these circumstances, we are of the considered view that prosecution has utterly failed to prove its case against the appellant beyond any shadow of doubt. In view of above, we hold that the findings of guilt recorded by the learned trial Court against the appellant are based on misreading and non-reading of evidence in accordance with the settled principles for appraisal/reappraisal of evidence. Thus, Criminal Appeal No. 2244 of 2016 filed by Muhammad Akram convict/appellant is accepted and as a consequence thereof, conviction and sentence awarded to him by the learned Additional Sessions Judge, Faisalabad through judgment dated 16.12.2016 is hereby set aside. He is in jail. He be released forthwith if not required to be detained in any other criminal case.
13. Consequently, Murder Reference No. 174 of 2017 seeking confirmation or otherwise the death sentence awarded to Muhammad Akram convict-appellant is replied in the negative and Death Sentence awarded to him is not confirmed.
(A.A.K.) Appeal accepted
0 Comments