PLJ 2024 Cr.C. (Note) 216
[Lahore High Court, Multan Bench]
Present: Sadiq Mahmud Khurram and Muhammad Amjad Rafiq, JJ.
NOOR MUHAMMAD alias NOORA--Appellant
versus
STATE--Respondent
Crl. A. No. 1234 of 2019 & M.R No. 110/2018, decided on 20.10.2022.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b), 148 & 149--Murder reference--Conviction and sentence--Challenge to--Motive--Witnesses were not present at place of occurrence at relevant time and had not witnessed occurrence--Conflict in ocular and medical account is damaging for prosecution--The prosecution is not required to prove motive in every case, yet same, if set up, should be proved through independent source of evidence other than words of mouth and in case of failure to do so, prosecution should have faced consequences and not defence--If such argument is believed, then what prompted prosecution to cause further delay of three days in dispatching it to PFSA, remains a mystery--It is another question not appealing to a mind of common prudence that accused/appellant having committed a gruesome crime like murder would have kept crime weapon safe with him for its subsequent recovery and presentation to prosecution as a souvenir--Apart from all above, recovery may be one of corroborative circumstances, but this by itself is not sole indicator of culprit and once most important piece of evidence i.e. ocular account has been disbelieved, this corroborative evidence will remain fruitless for prosecution and is not helpful to prosecution to stretch criminal liability against appellant--In instant case prosecution has totally failed to establish charge against accused/appellant beyond any shadow of doubt and it is trite that to extend benefit of doubt to an accused person, it is not necessary that there should be several circumstances creating doubt, rather one reasonable doubt is sufficient to acquit an accused.
[Para 6, 8, 9, 10 & 11] A, B, C, D & E
2017 SCMR 596, 2021 SCMR 612, 2010 SCMR 97, 2019 YLR 1046, 2018 SCMR 772 and 2020 SCMR 857.
M/s. James Joseph and Allah Ditta Kashif, Advocates for Appellant.
Mr. Muhammad Ali Shahab, Deputy Prosecutor General for State.
Mr. Shahzad Saleem Khan Baloch, Advocate for Complainant.
Date of hearing: 20.10.2022.
Judgment
Muhammad Amjad Rafiq, J.--Noor Muhammad alias Noora (accused/appellant) along with Muhammad Iqbal, Muhammad Khan, Rehmat Ullah and Soba Khan faced trial before learned Additional Sessions Judge, Muzafargarh in case FIR No. 309 dated 25.06.2012 under Sections 302/148/149, PPC registered at police station Saddar, Muzafargarh and on conclusion of trial vide judgment dated 31.10.2018, co-accused Muhammad Iqbal, Rehmat Ullah, Soba Khan and Muhammad Khan were acquitted, whereas, Noor Muhammad alias Noora (accused/appellant) was convicted under Section 302(b), PPC and sentenced to death. He was also ordered to pay Rs. 500,000/-as compensation under Section 544-A, Cr.P.C. to the legal heirs of deceased, recoverable as arrears of land revenue. Criminal Appeal No. 1234/2019 has been filed by the accused/appellant against his above conviction/sentence; whereas, Murder Reference No. 110/2018 has been sent by the learned trial Court as required under Section 374, Cr.P.C. Both these matters are being decided through the instant judgment.
2. Briefly the facts of the case as deposed by Aman Ullah complainant (PW-13) in the complaint (Ex.PE) are that on 25.06.2012 he and one Muhammad Iqbal Khan were present at Adda Najeeb& brothers, Khanpur Bagga Shair when Hameed Ullah Khan and Muhammad Asghar Khan residents of New Mianwali Colony, Karachi came on Troller No. 776/TLU and parked the said Troller inside the Adda. After a while, the complainant along with Hameed Ullah Khan (deceased), Muhammad Iqbal Khan and Muhammad Asghar Khan sat on a Hotel outside the Adda, for taking tea. At about 6.00 p.m. (evening time) suddenly from southern side Noor Muhammad alias Noora (accused/appellant), Muhammad Iqbal, Muhammad Khan (both sons of Noor Khan), Rehmat Ullah carrying firearms came on a Troller No. 5257/TJ, without Container, driven by Soba Khan. On coming near to the complainant party, Soba Khan slowed down the Troller, whereupon, Noor Muhammad jumped down, ran closer to the complainant side and made four consecutive fires with 30-bore pistol, which hit Hameed-Ullah Khan (deceased) on right side of neck and right shoulder. Hameed-Ullah Khan (deceased) getting injured fell down from the cot, Noor Kabammad ran towards the Troller by brandishing the weapon, Rehmat Ullah helped him to board the Troller and Soba Khan took the same towards North and thus all five accused persons succeeded to flee along with their weapons. Hameed-Ullah Khan (deceased) succumbed to the injuries at the spot.
Motive was alleged to be an altercation on monetary dispute which took place between Hameed-Ullah (deceased) and Muhammad Iqbal, sometimes back.
3. Aman Ullah complainant (PW-13) met Niaz Ahmad Khan SI/Investigating Officer (PW-14) while present at Khan Pur Bagga Shair and got recorded his statement (Ex.PE), which was sent to the police station for registration of FIR and the Investigating Officer along with the complainant proceeded to the place of occurrence, wherefrom the Investigating Officer collected blood stained earth, four casings of pistol 30 bore, prepared the rough site plan as well as injury statement and inquest report and sent the dead body through Sajjad Hussain 923/C for postmortem at DHQ Hospital, Muzaffargarh, and then got prepared scaled site plan. After postmortem examination, last worn clothes of deceased were produced before the Investigating Officer. He recorded statements of witnesses under Section 161, Cr.P.C. On 26.06.20212 Noor alias Noora (accused/appellant) was arrested and on his disclosure and lead recovered pistol 30-bore on 01.07.202.12. On 04.7.2012 the Troller 5257/GLT was taken into custody by the Investigating Officer and ultimately he found Noor Muhammad alias Noora as guilty, whereas, Muhammad Iqbal, Muhammad Khan, Rehmat Ullah and Soba Khan could not be arrested, whereupon, their non-bailable warrants and proclamations were got issued. Thereafter, the investigation was entrusted to Abdul Qayoom Inspector (PW-15). According to him, on 15.10.2012 the accused Muhammad Iqbal, Muhammad Khan, Rehmat Ullah and Soba Khan joined the investigation before Asad Ullah Khan SI (since dead), Noor Muhammad and Rehmat Ullah admitted their presence at the place of occurrence, Muhammad Khan, Muhammad Iqbal and Soba Khan accused, respectively alleged their presence at Karachi, Mianwali and Lahore at the time of occurrence. The third Investigating Officer namely Shah Alam Gishkori (PW-16) found Noor Muhammad, Rehmat Ullah and Soba Khan as guilty. Ultimately, report under Section 173, Cr.P.C. was submitted.
4. When charge sheeted, the accused persons denied the prosecution case and claimed trial, whereupon, the prosecution examined seventeen witnesses which include Dr.Waqas Javed (P:W-4) who had conducted autopsy over the dead body of Hameed-Ullah (deceased), Muhammad Iqbal (PW-10), Muhammad Asghar (PW-11) and Aman Ullah complainant (PW-13) furnished the ocular account, Niaz Ahmad Khan SI (PW-14), Abdul Qayoom Inspector (PW-15) and Shah Alam Gishkori (PW-16) appeared in the witness box and deposed about their respective investigations of this case, whereas, rest of the witnesses are formal witness and deposed about their respective functions performed during the course of investigation. On close of prosecution case, the accused when examined under Section 342, Cr.P.C. refuted the prosecution evidence and did not opt to appear as their own witnesses under Section 340(2), Cr.P.C., however, Noor Muhammad accused/appellant tendered some documents in evidence and on conclusion of the trial, four of the accused were acquitted, whereas, Noor Muhammad alias Noora was convicted and sentenced, as detailed in opening paragraph of this judgment.
5. We have heard the arguments of learned counsel for the respective parties and examined the entire record.
6. It is a fact borne out from the record itself that though one of the alleged eye witness namely Muhammad Iqbal (PW-10) is resident of Muzafargarh, but admittedly Aman Ullah complainant (PW-13) is the resident of Karachi and similarly the other eye witness namely Muhammad Asghar also hailed from Karachi and he was alleged to have accompanied at the place of occurrence along with Hameed-Ullah (deceased)) on a Troller. This is equally a fact that according to the prosecution version all the five accused persons had come at the spot on a Troller driven by one of them namely Soba Khan and the occurrence ensued at about 6.00 p.m. It was thus incumbent upon the prosecution to have established that for what reason Aman Ullah complainant was present there at the place of occurrence which was about 600 kilometers away from her place of abode and though some reference has been made by Muhammad Iqbal (PW-10) that in the morning of 25.06.2016 Aman Ullah had come from Karachi, but we have minutely gone through the complainant (Ex.PE) as well as his statement recorded during trial as PW-13 but do not find a single sentence/explanation about his presence at the place of occurrence at the relevant time. Further, even the presence of Muhammad Asghar (PW-11) remains under clouds for the reason that though the Troller (5257/GLT) which allegedly the accused persons used to reach and depart from the places of occurrence was subsequently taken into possession by the Investigating Officer on 04.07.2012 standing unattached on a road side, but the Troller (776/TLU) by which the deceased and Muhammad Asghar PW had assembled at the place of occurrence was never taken into custody, whereas, such recovery could lend some support to the prosecution to establish the presence of said Muhammad Asghar at the place of occurrence at the relevant time. Even, no other document in the shape of ownership record, route permit or any other instrument/bilti about loading/off-loading of consignment was brought on the record by the prosecution, as such, when the main source which allegedly Muhammad Asghar had used to reach at the crime scene remains a secret, it can conveniently be labeled as a big lacuna in the prosecution case. Another factor which add further doubts about the presence of these witnesses at the place of occurrence is that according to Aman Ullah, he along with Javed, Muhammad Aslam and police official escorted the dead body of Hameed Ullah to DHQ Hospital, Muzafargarh for postmortem, whereas, in the postmortem report his name is neither mentioned in the column about who brought the dead body, nor even he has been shown amongst the persons who identified the dead body, and thus, we are forced to disbelieve the presence of both these witnesses i.e. Aman Ullah complainant (PW-13) and Muhammad Asghar (PW11) at the place of occurrence.
So for as, third eye witness Muhammad Iqbal (PW-10) is concerned, it has come on the record that he happens to be relative of the complainant and thus related to the deceased as well. Irrespective of this fact, as observed above though he is resident of Muzafargarh, the same District where the occurrence took place, but his statement doubts his presence at the place of occurrence for the reason that according to him on the eventful day and time he along with Aman Ullah was sitting at Hotel at Al-Najeeb Ada and the deceased along with Muhammad Asghar came there at the hotel after parking their vehicle, which fact is against the story set out in the complaint (Ex.PE), according to which this witness along with Aman Ullah complainant were present at Najeeb Adda, the deceased and Muhammad Asghar came there, parked their vehicle and thereafter they all i.e. the complainant, Hameed-Ullah (deceased), Muhammad Iqbal and Muhammad Asghar went the hotel outside the Adda, and on this aspect the witness was confronted by the defence during trial. It is also worth noticing that according to the complaint, the deceased and the witnesses were present at the hotel and when the deceased received firearm injuries he fell down from the cot and such cot was shown in the scaled site plan with clarity that the eye witnesses were sitting on the cot, whereas, according to this witness the deceased was sitting on a chair, which fact was alien to the prosecution story and even in the site plan no such chair was shown present. We therefore, hold that witnesses were not present at the place of occurrence at the relevant time and had not witnessed the occurrence. Reliance in this regard is placed on the case “Mst. Rukhsana Begum and others vs. Sajjad and others (2017 SCMR 596).
7. Adding to the above, we cannot lose sight of the fact that it was Soba Khan, who was specifically alleged to have driven the Troller, by which the accused/appellant as well as other accused persons had reached at the crime scene, Noor Muhammad accomplished his nefarious design by making repeated fires at the deceased and then on the same vehicle all the four accused had managed their escape. Not only Muhammad Iqbal, Muhammad Khan and Rehmat Ullah accused were acquitted, in the same throw Soba Khan also earned acquittal from the learned trial and his such acquittal remained unchallenged by the prosecution. In such an eventuality, when an important link of transportation goes missing, the entire chain of circumstances stood shattered and none else but the prosecution is to face adverse inference.
8. Last but not the least, as stated above, in the complaint, as also in their statements before the Court the complainant as well as the prosecution witnesses showed unanimity on the point that four fire shots were made by Noor Muhammad @ Noora, three hit him on right shoulder and one fire shot hit him on right side of neck, whereas, Dr.Waqas Javed (PW-4) who had conducted autopsy over the dead body of Hameed-Ullah, observed five injuries on his person, out of which four were firearm injuries and there was one oval shape blunt lacerated wound on front of neck below the hyoid bone, which fact he also admitted during cross-examination but this blunt weapon injury remains unexplained by the prosecution. In such circumstances, conflict in ocular and medical account is damaging for prosecution. Reliance is placed on judgment reported as “Muhammad Idrees and another vs. The State and others” (2021 SCMR 612).
9. As regards motive, though in the complaint Aman Ullah had taken a specific stance that the occurrence was result of altercation which had taken place between Hameed-Ullah (deceased) and Muhammad Iqbal (accused), but interestingly in their examination-in-chief none of the prosecution witness i.e. Aman Ullah complainant (PW-13), Muhammad Iqbal (PW-10) or Muhammad Asghar (PW-11) uttered a single word about motive part of the occurrence. Even during cross-examination over the complainant just one line sentence has come on the record i.e. “The accused Noor Muhammad and deceased Hameed-Ullah had a dispute over personal give & take/dealing including troller.” With no further details or evidence about previous hostility amongst the deceased and the accused. It is trite that though the prosecution is not required to prove motive in every case, yet the same, if set up, should be proved through independent source of evidence other than the words of mouth and in case of failure to do so, the prosecution should have faced the consequences and not the defence. Reliance is placed on judgment reported as “Hakim Ali v. The State” (1971 SCMR 432), which has further been adopted in case titled “Riasab Khan versus Noor Muhammad and another” (2010 SCMR 97).
10. So for as recovery of firearm on the lead of accused/appellant and the positive PFSA report are concerned, the occurrence took place on 25.06.2012, on the same day Investigating Officer collected four casings from the spot. The accused/appellant was arrested on 26.06.2012 and then four days after his arrest the casings were sent to the PFSA on 30.06.2012, followed by recovery of crime weapon on his lead on 01.07.2012 which was dispatched to the PFSA on 04.07.2012. The learned counsel for the complainant defended the delay in sending the casings to PFSA by stating that on the night following the occurrence the accused/appellant was arrested thus the prosecution had no sufficient time to dispatch the casings to the PFSA before his arrest. If such argument is believed, then what prompted the prosecution to cause further delay of three days in dispatching it to PFSA, remains a mystery. It is another question not appealing to a mind of common prudence that accused/ appellant having committed a gruesome crime like murder would have kept the crime weapon safe with him for its subsequent recovery and presentation to the prosecution as a souvenir. Apart from all above, recovery may be one of the corroborative circumstances, but this by itself is not the sole indicator of the culprit and once the most important piece of evidence i.e. the ocular account has been disbelieved, this corroborative evidence will remain fruitless for the prosecution and is not helpful to the prosecution to stretch the criminal liability against the appellant. Reliance is placed on judgment reported as “Awais and others vs. The State and others” (2019 YLR 1046).
11. For what has been discussed above, in the instant case the prosecution has totally failed to establish the charge against the accused/appellant beyond any shadow of doubt and it is trite that to extend benefit of doubt to an accused person, it is not necessary that there should be several circumstances creating doubt, rather one reasonable doubt is sufficient to acquit an accused. Reliance is placed on the cases “Muhammad Mansha versus The State” (2018 SCMR 772) and “Muhammad Imran versus The State (2020 SCMR 857). Consequently, Criminal Appeal is allowed and the accused/ appellant is acquitted of the charge. He shall be released forthwith if not required in any other case. The case property, if any, shall be disposed of in accordance with law and the record of the trial Court be sent back immediately.
Murder Reference is answered in the negative.
Sentence of death is not confirmed.
(A.A.K.) Appeal allowed
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