PLJ 2024 Cr.C. (Note) 69
[Lahore High Court, Multan Bench]
Present: Sohail Nasir, J.
SHAHARYAR and another--Appellants
versus
STATE and another--Respondents.
Crl. As. Nos. 56 & 07-J of 2016, heard on 15.3.2022.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302/367/411--Disclosure of the deceased--Medical evidence--Injury statement--Acquittal of--According to the PW/complainant, while leaving the injured assailant, the others were succeeded to escape--The injured assailant/deceased disclosed his name and both the appellants--A document that is of Department of Accident and Emergency of the Hospital was brought in Court and in this context cross-examination was made on PW-10, who admitted that on the said document there was the stamp of police station besides endorsed by Doctor/CMO of hospital--Document shows that an unknown s/o unknown was brought to the hospital by ASI--If his name was disclosed on the place of occurrence, why this document was shown as unknown s/o unknown--Prosecution has no logical, convincing and acceptable reply on the very basic story--When PW-10 arrived at crime scene, he prepared the injury statement of the injured/deceased and he was sent to the hospital for medical examination but said injury statement was not available on file Doctor/PW-9 while issuing the post mortem report categorically observed that it was a case of immediate death--If deceased had died immediately after receipt of injury, how he was in a position to make any statement at crime scene-Appellants are acquitted--Appeal accepted. [Para 8, 9 & 10] A, B & C
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302/367/411--PFSA report--One of the empties matched with the pistol at the instance of one appellant but that is not relevant--empties were sent to the office of PFSA, when appellants were in police custody. [Para 11] D
Khawaja Qaisar Butt, Malik Kashif Hussain Zawwar and Malik Sohail Iqbal Advocates for Appellants.
Mr. Adnan Latif Sheikh Deputy Prosecutor General for State.
Mr. Fakhar Mughees Shanzad Advocate Complainant.
Date of hearing: 15.3.2022.
Judgment
By way of this single judgment above mentioned two Criminal Appeals one filed by Shaharyar (56 of 2016) and other by Muhammad Zeeshan (07-1 of 2016) are being decided together as arise out from judgment dated 30.01.2016 passed by the learned Additional Sessions Judge, Multan on the basis of which both the appellants were convicted and sentenced as under:-
Ø Under Section 302, PPC to imprisonment for life each and to pay Rs. 200000/- (two lacs) each in terms of Section 344-A, Cr.P.C. to the legal heirs of deceased. In default of payment of compensation they were ordered to further undergo six months SI each.
Ø Under Section 397, PPC to undergo seven years RI each.
Ø Under Section 411, PPC to undergo two pears RI each and fine of Rs. 20000/- (twenty thousand) each. In default of payment of fine they were ordered to further undergo three months SI each.
3. The sentences of appellants were ordered to run concurrently and benefit of Section 382-B, Cr.P.C. was extended to them. The convictions are outcome of case FIR No. 592 (PA) recorded on 28.08.2014 under Sections 302/397/411, PPC on the complaint of Muhammad Khaliq (Pw-3).
3. Facts of the case are that Mehmood Ahmad SI (Pw-10) upon receipt of information of the occurrence arrived at Johar Town where Muhammad Khaliq (P-3) made a statement (PA/I) and maintained that on 28.08.2014 at 07:30 pm he along with Abdul Hameed (P-4) was present at his shop; three unknown persons who were young entered in the shop; two out of them brought out pistols and removed Rs. 20000/- (twenty thousand) from the cash box; they started search of him/complainant and in this process, he/complainant overpowered one of the assailants; the other assailants to rescue his co-accused made a fire that hit on the abdomen of said unknown assailant who fell down on the ground being injured, leaving him at crime scene, other assailants were succeeded to escape; the injured assailant was Safdar Hussain and he told the names of his companions as Muhammad Zeeshan and Shaharyar (appellants).
4. Above complaint was sent to Police Station through Abdul Rehman Constable on the basis thereof FIR of the case was recorded.
5. On conclusion of investigation report under Section 173, Cr.P.C. (Challan) was submitted in Court.
6. After framing the charge against appellants which they did not plead guilty prosecution had produced as many as ten witnesses whereas appellants in their examinations made under Section 342, Cr.P.C. pleaded their false involvement.
7. HEARD
8. This case does not require any detailed discussion. Prosecution’s case is that while leaving injured assailant, the others were succeeded to escape. According to Muhammad Khaliq (Pw-3) the injured assailant (deceased) was Muhammad Safdar and he disclosed the names of both appellants. The question before the Court is that whether this is the true story or position is otherwise? Although not exhibited but a document that is of Department of Accident
and Emergency, Nishtar Hospital, Multan was brought in Court as Mark-A and in this comext cross-examination was made on Mehmood Ahmad/SI (PW-10). He admitted that on the said document there was the stamp of Police Station Shah Shamas, Multan besides endorsement by Dr. Khadija Raza CMO of Nishtar Hospital. In these circumstances this document can be read in evidence which shows that an unknown s/o unknown was brought to hospital on 28.08.2014 at 08:34:09 pm by Liaquat Ali ASI. If on the place of occurrence name of Safdar Hussain was disclosed by him, why in this document he was shown as unknown s/o unknown? Prosecution has no logical, convincing and acceptable reply so the very basic story that Safdar at crime scene was injured and disclosed the names of his co-accused has been belied.
9. According to Mehmood Ahmad S.I. when he arrived at crime scene he prepared injuries statement of Safdar (deceased) who at that time was injured and he was sent to hospital for his medical examination. In cross-examination he admitted that said injuries statement was not available on file. Defence had taken serious exception to it for the reason that this injuries statement in the light of document (Mark-A) was not having the particulars of Safdar Hussain so it was deliberately removed from the file. If the injuries statement (PN) for the post-mortem examination could be brought on record why the injuries statement relating to medical examination of Safdar Hussain was not produced? This Court therefore can safely draw a presumption against prosecution who deliberately withheld the best available Evidence.
10. Dr. Amir Qayyum (Pw-9) while issuing the post-mortem report categorically observed that it was a case of immediate death and on this document as well as opinion the doctor no exception was taken by the prosecution so CHON is another blow in prosecution’s story that if Safoar URT Hossain had died immediately after receipt of injury, how he was in a position to make any statement at crime scene?
11. Last but not least prosecution is relying on the report of PFSA showing one of the empties matched with the pistol at the instance of Shanaryar (appellant) but that is not relevant for the simple reason that when the empties were sent on 10.09.2014 to the office of PFSA, much earlier to that appellants were in police custody as arrested on 31.08.2014.
12. Concluding the discussions made above, this Court declares that prosecution had failed to prove its case beyond reasonable doubt against Shaharyar and Muhammad Zeeshan (appellants) hence both Criminal Appeals are allowed. Impugned judgment is set aside. They are acquitted from the case. They are in custody and shall be released forthwith if not required in any other case.
(M.A.B.) Appeals allowed
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