PLJ 2024 Cr.C. (Note) 171
[Lahore High Court, Lahore]
Present: Shehram Sarwar Ch., J.
TALHA and another--Appellants
versus
STATE and another--Respondents
Crl. A. No. 56852 & Crl. Rev. No. 60445 of 2019, heard on 3.11.2023.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Qatl-e-amd--Conviction and sentence--Challenge to--Benefit of doubt--Motive behind occurrence was family dispute between parties but no solid evidence in that regard was produced by prosecution during trial and said piece of evidence has rightly been disbelieved by trial in impugned judgment--The alleged recovery of khuncha at instance of appellant is concerned same is immaterial because it was an ordinary weapon, easily available in market--Evidence furnished by prosecution is shaky in nature and cannot be relied upon for maintaining convictions/sentences of appellants--So far as defence pleas taken by appellants in their statements u/S. 342, Code of Criminal Procedure are concerned, since prosecution evidence is doubtful in nature, therefore, there is no need to discuss same which are exculpatory in nature--Court have considered all pros and cons of this case and have come to this irresistible conclusion that prosecution could not prove its case against appellants beyond any shadow of doubt--Held: It is, by now well established principle of law that it is prosecution, which has to prove its case against accused by standing on its own legs and it cannot take any benefit from weaknesses of case of in defence--In instant case, prosecution remained failed to discharge its responsibility of proving case against appellants--Further held: It is also well established 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 doubt about prosecution story--Appeal allowed. [Para 4, 5 & 6] A, B, C & D
2009 SCMR 230 and 2019 SCMR 1978.
M/s. Asif Javaid Qureshi and Fahad Javaid Qureshi, Advocates along with Talha, appellant on bail.
Sh. Muhammad Nauman Siddiq, Deputy Prosecutor General for State.
Mr. Muhammad Adil Chattha, Advocate for Complainant.
Date of hearing: 3.11.2023.
Judgment
Talha and Huzaifa (appellants) along with their co-accused namely Usama, Mst. Khadija and Mst. Zubaida were tried by learned Addl. Sessions Judge, Lahore in case FIR No. 55 dated 27.01.2010, offence under Sections 302, 324, 147 and 149, PPC, registered at Police Station Township District Lahore for the murder of Abdul Hafeez and Mst. Ghazala Hafeez, father and mother of complainant respectively as well as launching murderous assault on Mst. Rukhsana Afzal and Adeela Hafeez. Vide judgment dated 19.09.2019 passed by learned trial Court, Talha (appellant) has been convicted under Section 302(b), PPC for the murder of Abdul Hafeez (deceased) and sentenced to imprisonment for life, with a further direction to pay Rs. 5,00,000/- as compensation under Section 544-A, Cr.P.C. to the legal heirs of deceased and in default whereof, to further undergo simple imprisonment for six months. Whereas, Huzaifa (appellant) has also been convicted under Section 302(b), PPC for the murder of Mst. Ghazala Hafeez (deceased) and sentenced to imprisonment for life, with a further direction to pay Rs. 5,00,000/- as compensation under Section 544-A, Cr.P.C. to the legal heirs of deceased and in default thereof, to further undergo simple imprisonment for six months. He was also convicted under Section 324, PPC and sentenced to rigorous imprisonment for ten years, with fine of Rs. 1,00,000/-, failing which he shall further undergo six months S.I. However, they were acquitted of the charge under Sections 147/149, PPC. Through the same judgment, Usama, Mst. Khadija and Mst. Zubaida, co-accused of the appellants were acquitted of the charge by extending them benefit of doubt and no appeal against their acquittal was filed either by the State or the complainant as conceded by learned Law Officer and learned counsel for the complainant. Assailing the above convictions and sentences, the appellants have filed the appeal in hand. The complainant has also preferred a Crl. Revision No. 60445/2019 for enhancement of sentences of the appellants. Since both the matters have arisen out of the same judgment, therefore, the same are being decided together through this single judgment.
2. Prosecution story, as set out in the FIR (Ex.PM/1) registered on The statement (Ex.PM) of Umar Hafeez, complainant (PW.12) is that on 27.01.2010 in the morning he (complainant) went to his duty at South Asian Media Centre, Shadman, Lahore whereas his parents namely Abdul Hafeez and Mst. Ghazala Hafeez, sister Adeela Hafeez along with her son Muhammad Ali and maternal aunt Mst. Rukhsana were present in the house. Adeela Hafeez had a dispute with her in-laws and in this regard, the matter was pending before the Court. Adeela Hafeez made a phone call to the complainant that her in-laws were coming to the house and they threatened that they would teach her a lesson for filing the case. After availing the leave, the complainant along with Lutafullah and Asif Hassan came to the house. The outer door was locked from inside and the shrieks were coming from the house. They forcibly opened the door and saw that Huzaifa (appellant), who was carrying his son aged about one and a half year, Talha, Hunzla, Usama, Khadija and Zubaida were coming out from there, upon which the complainant inquired from them as to what had happened but they decamped from there while boarding in a car. The complainant and others entered the house and found that Abdul Hafeez, Mst. Ghazala Hafeez, Adeela Hafeez and Mst. Rukhsana were lying on the ground smeared with blood and had sustained injuries with sharp edged weapons. On the noise of complainant party, people of the locality attracted to the spot. One of the neighbourers made call on 15, on which two ambulances of Rescue 1122 reached there. Abdul Hafeez and Adeela Hafeez were taken to General Hospital, Lahore on one ambulance whereas Mst. Ghazala Hafeez and Mst. Rukhsana were being shifted to Jinnah Hospital, Lahore on another ambulance but Mst. Ghazala Hafeez succumbed to the injuries on the way. The other injured remained under treatment at the hospital and subsequently Abdul Hafeez died in hospital.
3. Arguments heard. Record perused.
4. The appellants were implicated in this case with the allegation of committing the murder of Abdul Hafeez and Mst. Ghazala Bibi, parents of complainant as well as launching murderous assault upon Adeela Hafeez (PW.13) and Rukhsana Afzal (PW.14). The ocular account in this case was furnished by Umar Hafeez, complainant (PW.12), Adeela Hafeez (PW.13) and Rukhsana Afzal (PW.14). According to the contents of first information report (Exh.PM/1) Umar Hafeez, complainant (PW.12) was not an eye-witness of the occurrence, which happened inside the house. He only stated in his examination-in-chief that after receiving phone call from his sister, he along with other relatives arrived at the house and saw that it was locked from inside. They heard cries and knocked the door but none opened it whereafter they broke the door by force. They saw that Huzaifa (appellant) was there and carrying his son. In the meanwhile Talha (appellant), Hanzla and Usama came out of house while accused Khadija Bibi was holding accused Zubaida Bibi. He inquired them what happened but accused decamped from the place of occurrence on a car. They entered inside the house and witnessed that Abdul Hafeez, Ghazala Hafeez, Adeela Hafeez and Rukhsana Afzal were lying there having smeared with blood. Undisputedly, the complainant (PW.12) did not saw the appellants while killing both the deceased namely Abdul Hafeez and Ghazala Hafeez as well as causing injuries to Adeela Hafeez (PW.13) and Rukhsana Afzal (PW.14). He and his relatives also did not try to apprehend the appellants and their co-accused at the time when they were leaving the place of occurrence. The above said PW has stated in his cross-examination that “I used to go to my office in routine at about 11:00 am and used to come back at about 8:00/9:00/10:00 pm. It is correct that I did not see any one committing occurrence of murder”. Moreover, it has not been brought on record through any cogent and confidence inspiring evidence that the complainant was accompanying the injured persons at the time of shifting them to hospital through vehicles of Rescue-1122. Therefore, I hold that neither the complainant (PW.12) was present on the spot at the time of incident nor he saw the appellants and their co-accused while leaving the place of occurrence. Adeela Hafeez (PW.13) was allegedly the star witness of the occurrence. The said PW while appearing before the learned trial Court has stated in her examination-in-chief as under:
“... Accused Hafiz Huzaifa and accused Talha simultaneously inflicted injuries on head of my parents due to which, they fell down. Subsequently, accused Hafiz Huzaifa take out a pistol from Naifa of his Shalwar and made fire shot at me to kill me and this fire shot hit at his mother Zubaida Bibi. Accused Hafiz Huzaifa abruptly threw away pistol and thereafter, inflicted injuries upon me with rod, due to which I became unstable and accused Huzaifa came out from the room ...”
The said PW did not state anything about receiving injuries by Rukhsana Afzal (PW.14) during the incident. Moreover, the medico-legal-report of said PW was not brought on record during the trial. It was also not part of police file. Therefore, the learned trial Court had held in para-21 of the impugned judgment that “it is not safe to held accused Hafiz Huzaifa liable for causing any particular injury to Adeela Hafeez”. Meaning thereby the learned trial Court has disbelieved the prosecution case to the extent of sustaining injuries by Adeela Hafeez at the hands of Huzaifa (appellant) during the incident. So far as testimony of Rukhsana Afzal is concerned, the same is of no avail to the prosecution because the said PW did not disclose any injury allegedly sustained by the deceased persons as well as Adeela Hafeez (PW.13) at the hands of appellants during the incident in her statement. She has simply stated in her examination-in-chief that when she reached the place of incident her sister, Behnoi and bhanji were lying there in injured condition, however, when she started weeping Huzaifa (appellant) inflicted a rod at her head but the said injury was not declared by Dr.Liaqat Ali (PW.10) who medically examined the said PW soon after the incident. I have further noted that the ocular account is in direct conflict with the medical evidence because Adeela Hafeez (PW.13) has stated in her cross-examination that Talha and Huzaifa inflicted iron rods blows upon her parents but Dr. Zia-ul-Haq (PW.4) who conducted autopsy of the dead-body of Abdul Hafeez (deceased) has stated in his examination-in-chief that all the injuries sustained by the said deceased were caused by sharp edged weapon. This major discrepancy raised serious doubts on the credibility of the prosecution witnesses of ocular account. I fortify my view from the dictum laid down in case law titled as “Bashir Muhammad Khan vs. The State” (2022 SCMR 986) “Tajamal Hussain Shah vs. The State and another” (2022 SCMR 1567). Another intriguing aspect of the case is that in the FIR as well as before the learned trial Court it was the case of prosecution that Talha (appellant) while armed with iron rod inflicted injuries on the heads of both the deceased but Arshad Ali Kahlon, Inspector/IO (PW.15) has stated in his cross-examination that he concluded during the course of investigation that Talha (appellant) was merely present on the spot at the time of incident but he did not participate in the occurrence. In a case of similar nature titled as “Safdar Mehmood and others vs. Tanvir Hussain and others” (2019 SCMR 1978), the Hon’ble Supreme Court of Pakistan has been pleased to observe as under:
“... The appellant was not directly connected with the motive set up by the prosecution and nothing had been recovered from his custody during the investigation. For whatever its evidentiary value, the investigating agency had declared the appellant innocent. In this peculiar backdrop it could not have been concluded by the Courts below that the prosecution had succeeded in proving its case against the appellant beyond reasonable doubt.”
Motive behind the occurrence was family dispute between the parties but no solid evidence in that regard was produced by the prosecution during the trial and the said piece of evidence has rightly been disbelieved by the learned trial in the impugned judgment. The alleged recovery of khuncha at the instance of Huzaifa (appellant) is concerned the same is immaterial because it was an ordinary weapon, easily available in the market. Therefore, I hold that the evidence furnished by the prosecution is shaky in nature and cannot be relied upon for maintaining the convictions/sentences of the appellants.
5. So far as the defence pleas taken by the appellants in their statements under Section 342, Code of Criminal Procedure are concerned, since the prosecution evidence is doubtful in nature, therefore, there is no need to discuss the same which are exculpatory in nature.
6. I have considered all the pros and cons of this case and have come to this irresistible conclusion that the prosecution could not prove its case against the appellants beyond any shadow of doubt. It is, by now well established principle of law that it is the prosecution, which has to prove its case against the accused by standing on its own legs and it cannot take any benefit from the weaknesses of the case of in the defence. In the instant case, the prosecution remained failed to discharge its responsibility of proving the case against the appellants. It is also well established 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 doubt about the prosecution story. In this regard, reliance may be placed on the case law reported as “Muhammad Akram versus The State” (2009 SCMR 230).
7. For the foregoing reason, the appeal in hand filed by Huzaifa and Talha, appellants is allowed, convictions and sentences awarded to them vide judgment dated 19.09.2019 passed by the learned trial Court are set aside and they are acquitted of the charges while extending them benefit of doubt. Huzaifa (appellant) is in jail. He shall be released forthwith if not required to be detained in any other case. Talha (appellant) is present in the Court on bail. His surety is discharged from the liability of bail bonds.
8. In view of above discussion, Crl. Revision No. 60445 of 2019 filed by the complainant for enhancement of sentences of appellants having no merits is dismissed.
(A.A.K.) Appeal allowed
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