PLJ 2023 Cr.C. (Note) 263
[Lahore High Court, Lahore]
Present: Ch. Mushtaq Ahmad, J.
MUHAMMAD YOUNIS etc.--Petitioners
versus
STATE and another--Respondents
Crl. Rev. No. 975, Crl. Misc. Nos. 2605-M & 2606-M of 2010,
heard on 21.9.2020.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 324, 34, 337-F(iii)--Attempt to murder--Conviction and sentence--Challenge to--Motive-- Motive for crime as alleged in complaint is that complainant’s relatives had filed a pre-emption suit against petitioner party in which complainant was witness--In such backdrop, medical evidence is in contradiction with ocular account--Petitioner and his co-accused were found innocent during investigation and nothing was recovered from them--There is nothing on record to show that opinion of Investigating Officer was challenged by complainant before any forum--In cross examination PW-3 injured claimed that at time fire was made by petitioner, he was not standing on wall rather he was standing at some elevation other than wall--This assertion is contradictory to statement of PW-2/complainant whose stance was that assailants remained standing on wall--Complainant/prosecution had failed to prove charge against petitioner beyond reasonable doubt--Both Courts below have failed to appreciate evidence available on record correctly--In such circumstances, findings of conviction recorded by Judicial Magistrate Section-30 and upheld by Additional Sessions Judge in impugned judgments are not sustainable--While accepting this Criminal Revision, conviction and sentence of petitioner Muhammad Younis is set aside and he is acquitted of charge--Petitioner is on bail--His surety stands discharged of liability of bail bonds. [Para 5, 6 & 7] A, B & C
Mr. Irfan Riaz Gondal, Advocate for Petitioner.
Mr. Shabbir Ahmad, Deputy Prosecutor General for State.
Nemo for Complainant.
Date of hearing: 21.9.2020.
Judgment
Muhammad Younis petitioner-Convict was tried by learned Magistrate Section-30, Depalpur in a private complaint titled “Muhammad Akram vs. Muhammad Younis and another” for the offences under Sections 324, 34, PPC.
On conclusion of trial, petitioner was convicted by learned Magistrate vide judgment dated 04.05.2010 and was sentenced as under:
(i) Convicted under Section 324, PPC and sentenced to four years’ R.I. with fine Rs. 20,000/- or in default, to further undergo simple imprisonment for two months.
(ii) Convicted under Section 337-F(iii), PPC and sentenced to undergo three years’ R.I. and to pay daman to the tune of Rs. 20,000/- to injured.
Benefit under Section 382-B of Cr.P.C. was extended to the petitioner. His sentences were ordered to run concurrently.
Appeal against conviction preferred by petitioner-convict was partly allowed by learned Additional Sessions Judge, Depalpur vide judgment dated 18.09.2010, whereby conviction and sentence of petitioner under Section 337-F(iii), PPC was set aside whereas his conviction and sentence awarded by trial Court under Section 324, PPC was maintained revision filed by complainant seeking enhancement of sentence of the petitioner was dismissed by learned Additional Sessions Judge vide above referred judgment dated 18.09.2020.
3. Complainant Muhammad Akram through Criminal Miscellaneous No. 2605-M of 2010 has challenged judgment of learned Additional Sessions Judge, Depalpur dated 18.09.2010 to the extent of setting aside conviction and sentence of petitioner for the offence under Section 337-F(iii), PPC. Through Criminal Miscellaneous No. 2606-M of 2010, complainant has sought enhancement of sentence of the petitioner. All these matters arise out of same impugned judgments, will be decided through this consolidated judgment.
4. Arguments heard and record perused.
5. Law in this case was set into motion on complaint of Muhammad Akram, whereupon FIR No. 488 dated 16.06.2007 was registered at Police Station Hujra Shah Muqeem District Okara for the offences under Section 324, 34, PPC. During investigation, petitioner and co-accused Muhammad Yousaf were found innocent, due to which complainant filed private complaint. Petitioner was tried in private complaint. As per contents of complaint, on the night falling in-between 15-16th of June, 2007 complainant, his brother Gohar Ali (PW-3) and other family members were sleeping in Courtyard of their house. Complainant and his brother woke up on sudden inkling and saw Muhammad Younas (petitioner) armed with .222-bore gun, Muhammad Yousaf co-accused armed with rifle and two unknown persons standing on outer wall of the house. Muhammad Yousaf
co-accused raised lalkara to teach a lesson to complainant party for their being witness against them. Thereupon, Muhammad Yousaf co-accused made fire with his rifle towards complainant but the fire did not hit anybody. Then petitioner made fire with .222-bore gun, which shot hit Gohar Ali, brother of the complainant, on backside of chest at left side. On hearing reports of firing, Rehmat Ali, Muhammad Ahmad (since given up PWs) attracted to the spot. Thereupon, accused fled away.
Motive for crime as alleged in the complaint is that complainant’s close relatives Javed Maqbool and Farzand Ali had filed a pre-emption suit against petitioner party in which complainant was witness.
6. In the private complaint, only date of occurrence is given whereas specific time of the incident has not been mentioned. Same is position in examination-in-chief of prosecution witnesses qua time of occurrence. However, in cross-examination PW-2 Muhammad Akram complainant sated that it was about 12:00 a.m. (midnight). As alleged in complaint, a fire shot hit complainant’s brother Gohar Ali (PW-3) on his back and as elaimed by PW-2 in cross-examination, it was 12:00 a.m., despite that anjured was medically examined after eight hours at 08:00 a.m. Evidence available on record is silent as to what sort of medical treatment was given to injured during the intervening period despite his sustaining serious fire-arm injury. After his medical examination at 08:00 a.m., FIR was got registered at 09:00 P.M. i.e. 21 hours after the incident. In such backdrop, element of consultation cannot be ruled out. Occurrence took place at midnight. Private complaint is silent as to source of light. In absence of source of light, identification of assailants as claimed by PWs, does not inspire confidence. Gohar Ali injured was medically examined by PW-1 Doctor Khalid Mahmood, who noted a fire-arm injury with inverted margins. Blackening around the wound was observed by Medical Officer, implying thereby fire hit the injured from a very close range. Distance between injured and assailants at the time of occurrence, as claimed by PW-2 complainant and PW-3 Gohar Ali injured was 15-16 karams i.e. more than 80 feet. In such backdrop, medical evidence is in contradiction with ocular account. Petitioner and his co-accused Muhammad Yousaf were found innocent during investigation and nothing was recovered from them. There is nothing on record to show that opinion of Investigating Officer was challenged by complainant before any forum. In cross-examination PW-3 Gohar Ali injured claimed that at the time fire was made by petitioner, he was not standing on the wall rather he was standing at some elevation other than wall. This assertion is contradictory to the statement of PW-2/ complainant whose stance was that assailants remained standing on wall.
7. For the reasons recorded above, I am of the view that complainant/prosecution had failed to prove charge against petitioner beyond reasonable doubt. Both the Courts below have failed to appreciate evidence available on record correctly. In such circumstances, findings of conviction recorded by learned Judicial Magistrate Section-30 and upheld by learned Additional Sessions Judge in the impugned judgments are not sustainable. While accepting this Criminal Revision, conviction and sentence of the petitioner Muhammad Younis is set aside and he is acquitted of the charge. Petitioner is on bail. His surety stands discharged of the liability of bail bonds.
8. For the above reasons, Criminal Miscellaneous No. 2605-M of 2010 and Criminal Miscellaneous No. 2606-M of 2010 are dismissed.
(A.A.K.) Revision accepted
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