PLJ 2024 Cr.C. (Note) 263
[Lahore High Court, Multan Bench]
Present: Sadaqat Ali Khan and Shehram Sarwar Ch., JJ.
versus
STATE--Respondent
Crl. A. No. 589-J of 2020 & M.R. No. 92 of 2019,
decided on 11.9.2024.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302/34--Qatl-i-Amd--Acquittal of co-accused--Police opinion--Delay in FIR--Related witness--Co-accused declared innocent in investigation--Motive--Acquittal of--Through same judgment co-accused of appellant were acquitted--No Crl. P.S.L.A. against their acquittal was filed either by State or complainant--Being dissatisfied with investigation conducted by police, complainant instituted a private complaint--The distance between police station and place of occurrence is five kilometers--Matter was reported to police about two and a half hours after occurrence--No convincing or plausible reason for this delay in reporting crime to police was mentioned by complainant in FIR--PW-2 were closely related to deceased being his wife and son respectively and were interested witnesses--Co-accused of appellant was wedded with role of causing firearm injury on person of deceased was found not involved during course of investigation and ultimately, they were acquitted--No independent witness qua motive was associated during course of investigation or brought in witness box--Alleged recovery of 12 bore pistol is a corroborative piece of evidence and relevant only if primary evidence i.e. ocular account inspires confidence--Prosecution remained failed to discharge its responsibility of proving case against appellant--He is acquitted of charge.
[Para 1, 3, 6 & 7] A, B, D, E, G, H, I
1995 SCMR 599; 2009 SCMR 230 ref.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302/34--Delay in FIR--No convincing or plausible reason for this delay in reporting crime to police was mentioned by complainant in FIR. [Para 5] C
2019 SCMR 274; 2022 SCMR 1527; 2022 SCMR 393 ref.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302/34--Acquittal of co-accused--Evidence which was found doubtful to extent of co-accused of appellant cannot be believed against appellant. [Para 6] F
2022 SCMR 393; 2016 SCMR 1763 ref.
Prince Rehan Iftikhar Sheikh and Hafiz Muhammad Haseeb Ullah Raan, Advocates for Appellant.
Ch. Muhammad Akbar, Addl. Prosecutor General for State.
M/s. Kanwar Waji-ud-Din, Muhammad Imran Rasheed Sulehri, Syed Tahir Mansoor Bukhari and Ch. Imran Saqi, Advocates for Complainant.
Date of hearing: 11.9.2024.
Judgment
Shehram Sarwar Ch. J.--Farooq Ahmad (appellant) along with his co-accused namely Khalil Ahmad, Jalil Ahmad and Allah Diwaya was tried by learned Sessions Judge, Rajanpur in a private complaint under Sections 302 and 34 PPC instituted in case FIR No. 109 dated 25.03.2017 registered at Police Station Fazilpur District Rajanpur for the murder of Muhammad Iqbal (deceased) husband of complainant. Vide judgment dated 05.07.2019 passed by learned trial Court, the appellant has been convicted under Section 302(b), PPC and sentenced to death, with a further direction to pay Rs. 4,00,000/-(rupees four lakh only) 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. Through the same judgment, Khalil Ahmad. Jalil Ahmad and Allah Diwaya, co-accused of the appellant were acquitted of the charge by extending them benefit of doubt and no Crl. P.S.L.A. against their acquittal was filed either by the State or the complainant, as conceded by learned Law Officer as well as learned counsel for the complainant. Assailing the above conviction and sentence, the appellant has filed the appeal in hand whereas the learned trial Court has sent Murder Reference No. 92 of 2019 for confirmation or otherwise of the appellant’s sentence of death, as required under Section 374 of the Code of Criminal Procedure. Since both these matters have arisen out of the same judgment, therefore, are being decided together through this single judgment.
2. Prosecution story, as set out in the FIR (Ex.PJ/1) registered on the statement (Ex.PJ) of Hajiran Mai, complainant (PW.1) is that a dispute of land was going on between her husband Muhammad Iqbal and Farooq Ahmad (appellant) for the last about one year and her husband asked the appellant to call HalqaPatwari and get the disputed land partitioned, as he would not give him land according to his wishes. On 25.03.2017 at around 7.30 a.m. the complainant and her husband Muhammad Iqbal were talking to each other while sitting on a cot in their house and their sons SameeUllah aged about 18/19 years and AsmatUllah aged about 20/21 years were working in the Courtyard. Farooq Ahmad (appellant), Khalil Ahmad both armed with .12 bore pistols, Jalil Ahmad and Allah Diwaya both armed with sota arrived there and raised lalkara to teach a lesson to the husband of complainant for not giving them land. Within the view of complainant party. Farooq Ahmad fired with 12 bore pistol which landed on front chest face and left side of neck of husband of complainant. Second fire was made by Khalil Ahmad hitting husband of complainant on right side of his chest. The complainant and her sons SameeUllah and AsmatUllah stepped forward but Jalil Ahmad and Allah Diwaya pointed their sota towards them and warned that whoever came near would face the same consequence. The complainant party did not go near due to fear of life and raised alarm, on which neighbourers attracted to the spot and the accused persons fled away. The complainant party attended Muhammad Iqbal, who had already succumbed to the injuries. Motive behind the occurrence as alleged in the FIR was a dispute of land.
3. Being dissatisfied with the investigation conducted by police, the complainant instituted a private complaint titled as “Hajiran Mai vs. Farooq Ahmad etc.”, almost on the same facts as narrated in the FIR.
4. We have heard arguments of learned counsel for the parties as well as the learned Law Officer for the State at a considerable length and have also gone through the record very minutely.
5. The incident wherein Muhammad Iqbal (deceased) husband of complainant lost his life, as per prosecution, took place on 25.03.2017 at 7.30 a.m. in the area of MauzaKotla Khan Muhammad situated within the territorial limits of Police Station Fazilpur District Rajanpur. The distance between the police station and the place of occurrence is five kilometers. The matter was reported to the police through statement (Ex.PJ) of Hajiran Mai, complainant (PW.1) on the same day at 10.00 a.m. i.e. about two and a half hours after the occurrence and formal FIR (Ex.PJ/1) was got registered at 10.30 a.m. No convincing or plausible reason for this delay in reporting the crime to the police was mentioned by the complainant in the FIR, private complaint or explained before the learned trial Court. Therefore, we hold that this inordinate delay in setting the machinery of law in motion speaks volumes against the veracity of prosecution version. Reliance is placed on case law titled as “Altaf Hussain vs. The State” (2019 SCMR 274), “Abdul Ghafoor vs. The State” (2022 SCMR 1527 and Pervaiz Khan and another vs. The State” (2022 SCMR 393).
6. The ocular account in this case has been furnished before the learned trial Court by Hajiran Mai, complainant (PW.1) and Samee Ullah (PW.2), who were closely related to the deceased being his wife and son respectively and were interested witnesses. It was case of the complainant in the FIR, private complaint and before the learned trial Court that Farooq Ahmad (appellant) fired with 12 bore pistol at Muhammad Iqbal (deceased) which landed on his chest, face and left side of neck; second fire was made by Khalil Ahmad, co-accused hitting the deceased on right side of his chest. Same was the stance of Samee Ullah (PW.2) before the learned trial Court in his examination-in-chief. We have observed that Khalil Ahmad, co-accused of the appellant was wedded with the role of causing firearm injury on the person of deceased but he along with Jalil Ahmad and Allah Diwaya co-accused was found not involved during the course of investigation and ultimately, they were acquitted of the charge by the learned trial Court, which acquittal as mentioned above was not assailed any further. It is settled by now that the evidence which was found doubtful to the extent of co-accused of the appellant cannot be believed against the appellant and the conviction and sentence of appellant are not sustainable on the same set of evidence. A reference in this respect may be made to the cases of “Pervaiz Khan and another vs. The State” (2022 SCMR 393) and “Shahbaz vs. The State” (2016 SCMR 1763). The motive behind the occurrence as alleged in the FIR, private complaint and brought before the learned trial Court was a dispute of land between Muhammad Iqbal (deceased) and his brother Farooq Ahmad (appellant). The complainant admitted during cross examination that there was no suit concerning dispute of land pending adjudication in the Court of law between her husband (deceased) and the appellant. She further conceded that her husband neither filed any civil suit nor made any report to the police against the appellant. In respect of the motive, Syed Sibt-ul-Hassan Shah, S.I./I.O. (CW.1) also explained before the learned trial Court that he did not record statement of Patwari Halqa regarding dispute of land viz-a-viz joint khata between the parties. The I.O. also did not know whether the cultivated land of the accused persons and the deceased was adjacent or there were disputes between them. Moreover, no independent witness qua motive was associated during the course of investigation or brought in the witness box at the time of trial. Therefore, in our view, the prosecution has not been able to substantiate the alleged motive behind the occurrence. So far as the alleged recovery of 12 bore pistol at the instance of the appellant is concerned, the same is a corroborative piece of evidence and relevant only if the primary evidence i.e. ocular account inspires confidence which is not the situation in this case. As far as medical evidence is concerned, the same may confirm the ocular account with regard to the receipt of injury, locale of injury, kind of weapon used for causing the injury, duration between the injury and the death but it would not tell the name of the assailants. Reliance is placed on “Ata Muhammad and another versus The State” (1995 SCMR 599). Considering all these circumstances, we are of the view that the evidence furnished by witnesses of ocular account is shaky in nature and cannot be relied upon for maintaining conviction of the appellant on the capital charge.
7. We 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 appellant 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 the defence. In the instant case, the prosecution remained failed to discharge its responsibility of proving the case against the appellant. 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).
8. For the foregoing reasons, the appeal in hand filed by Farooq Ahmad (appellant) is allowed, conviction and sentence awarded to the appellant vide judgment dated 05.07.2019 passed by the learned trial Court are set aside and he is acquitted of the charge levelled against him while extending him benefit of doubt. The appellant is confined in jail. He shall be released forthwith if not required to be detained in any other case.
9. Murder Reference No. 92 of 2019 is answered in the NEGATIVE and the sentence of death awarded to Farooq Ahmad (convict) is NOT CONFIRMED.
(K.Q.B.) Appeal allowed
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