PLJ 2024 Cr.C. (Note) 249
[Lahore High Court, Rawalpindi Bench]
Present: Raja Shahid Mehmood Abbasi and Sadaqat Ali Khan, JJ.
versus
STATE--Respondent
Crl. A. Nos. 90 & 404 of 2021, heard on 13.4.2022.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 324, 353, 337-A(1), 337-F(iii), 186, 148 & 149--Anti-Terrorism Act, (XXVII of 1997), Ss. 7, 7(b), 7(h), 7(2), 21(L)--Attempt to murder--Conviction and sentence--Challenge to--Arrest of appellants by police officials being suspects whereafter their identification by police officials, considering peculiar circumstances of this case, is highly unsafe and not reliable--Recovery of car from open plot and articles lying therein is also not believable--PW-9 stated in his statement before trial Court that appellant being his driver used to ply recovered car i.e. CU-095 Toyota Corolla Black coloured GLI Model 2014 with authority letter but this story is also not believable--Recovery of rifle 222 and pistol 30 bore on pointing out of appellant from graveyard being an open place and accessible to everyone is also not believable--Held: It is settled principle of law that for giving benefit of doubt, it is not necessary that there should be many circumstances creating doubt--If there is a circumstance which creates reasonable doubt in prudent mind about guilt of accused, then he would be entitled to its benefit not as a matter of grace or concession, but as of right.
[Para 5, 6 & 7] A, B & C
Mr. Shabbir Ahmad Mirza, Advocate for Appellant (in Crl.
A. No. 90/2021).
Syed Ghulam Mustafa Kamal, Advocate for Appellant (in Crl. A. No. 404/2021).
Mr. Sajjad Hussain Bhatti, DPG for State.
Date of hearing: 13.4.2022.
Judgment
Sadaqat Ali Khan, J.--Appellants (Muhammad Danish and Naqeeb-ur-Rehman) were tried by the learned trial Court in case FIR No. 751 dated 02.09.2019 offences under Sections 148, 149, 186, 324, 353, 337-A(i), 337-F(iii), PPC and Sections 7, 7-b, 7-h, 7(2), 21-L of Anti-Terrorism Act, 1997 Police Station Pirwadhai, District Rawalpindi and have been convicted and sentenced vide impugned judgment dated 19.01.2021 as under:
Muhammad Danish (appellant)
U/S. 324/149, PPC Sentenced to imprisonment for 10-years R.I. with fine of Rs. 50,000/- in default whereof to further undergo six months S.I.
7-b of ATA, 1997 Sentenced to imprisonment for 10-yeasr R.I. with fine of Rs. 50,000/- in default whereof to further undergo six months S.I.
353/149, PPC Sentenced to imprisonment for 02-years R.I. with fine of Rs. 50,000/- in default whereof to further undergo six months S.I.
7-h of ATA, 1997 Sentenced to imprisonment for 05-years R.I. with fine of Rs. 50,000/- in default whereof to further undergo three months S.I.
186/149, PPC Sentenced to imprisonment for 01-year R.I. with fine of Rs. 50,000/- in default whereof to further undergo three months S.I.
337-A(i)/149, PPC Sentenced to imprisonment for 02-years R.I. as Tazir with payment of Daman of Rs. 50,000/- to Muhammad Shahzad (injured PW).
337-F(iii)/149, PPC Sentenced to imprisonment for 03-years R.I. as Tazir with payment of Daman of Rs. 50,000/- to Muhammad Shahzad (injured PW).
337-F(iii)/149, PPC Sentenced to imprisonment for 03-years R.I. as Tazir with payment of Daman of Rs. 50,000/- to Babar Ali (injured PW).
Appellant (Muhammad Danish) was also directed to pay compensation of Rs. 50,000/-u/S. 544-A, Cr.P.C. to Muhammad Shahzad (injured PW) which was ordered to be recovered as arrears of land revenue in default whereof to further undergo six months S.I.
Appellant (Muhammad Danish) was also directed to pay compensation of Rs. 50,000/- u/S. 544-A, Cr.P.C. to Babar Ali (injured PW) which was ordered to be recovered as arrears of land revenue in default whereof to further undergo six months S.I.
As per Section 7(2) of ATA, 1997, the property of the appellant was also forfeited.
All the sentences of the appellant were ordered to be run concurrently with benefit of Section 382-B, Cr.P.C.
Naqeeb-ur-Rehman (appellant)
U/S.324/149, PPC Sentenced to imprisonment for 10-years R.I. with fine of Rs. 50,000/- in default whereof to further undergo six months S.I.
7-b of ATA, 1997 Sentenced to imprisonment for life with fine of Rs. 50,000/- in default whereof to further undergo six months S.I.
353/149, PPC Sentenced to imprisonment for 02-years R.I. with fine of Rs. 50,000/- in default whereof to further undergo six months S.I.
7-h of ATA, 1997 Sentenced to imprisonment for life with fine of Rs. 50,000/- in default whereof to further undergo three months S.I.
186/149, PPC Sentenced to imprisonment for 01-year R.I. with fine of Rs. 50,000/- in default whereof to further undergo three months S.I.
337-A(i)/149, PPC Sentenced to imprisonment for 02-years R.I. as Tazir with payment of Daman of Rs. 50,000/- to Muhammad Shahzad (injured PW) for causing him injury.
337-F(iii)/149, PPC Sentenced to imprisonment for 03-years R.I. as Tazir with payment of Daman of Rs. 50,000/- to Muhammad Shahzad (injured PW) for causing him injury.
337-F(iii)/149, PPC Sentenced to imprisonment for 03-years R.I. as Tazir with payment of Daman of Rs. 50,000/-to Babar Ali (injured PW) for causing him injury.
21-L of ATA, 1997 Sentenced to imprisonment for 10-year R.I. with fine of Rs. 50,000/- in default whereof to further undergo six months S.I.
Appellant (Naqeeb-ur-Rehman) was also directed to pay compensation of Rs. 50,000/-u/S. 544-A, Cr.P.C. to Muhammad Shahzad (injured PW) which was ordered to be recovered as arrears of land revenue in default whereof to further undergo six months S.I.
Appellant (Naqeeb-ur-Rehman) was also directed to pay compensation of Rs. 50,000/- u/S. 544-A, Cr.P.C. to Babar Ali (injured PW) which was ordered to be recovered as arrears of land revenue in default whereof to further undergo six months S.I.
As per Section 7(2) of ATA, 1997, the property of the appellant was also forfeited.
All the sentences of the appellant were ordered to be run concurrently with benefit of Section 382-B, Cr.P.C.
2. Appellants have filed these separate Criminal Appeals against their convictions which are being decided through this single judgment.
3. Heard. Record perused.
4. Unnecessary facts apart, Azad Khan, T/ASI (PW-8) being complainant on 02.09.2019 got lodged FIR against unknown accused stating therein that on the same night at 9:40 p.m., he along with Babar Ali, Constable (PW-6) and Muhammad Shahzad, Constable (PW-7) and other police officials was present at Dhoke Naju Pull Nalla Lai in connection with picket duty, meanwhile vehicle No. CU-095 black coloured came from Satellite Town, one person was following it on his motorcycle whose name was known as Mohsin Ali (PW-19) and was shouting in loud voice that in the said vehicle unknown accused persons made dacoity in his house, they tried to stop said car which was not stopped, they started to chase said vehicle and got stopped it at Sector 4-A opposite of the graveyard. The person who was sitting on front seat made fire shbt with 30-bore pistol at police party hitting on right calf of Babar Ali, Constable (injured PW-6), other four accused also made indiscriminate firing at police party, they (police party) also made firing in their defence, whereafter accused persons while making indiscriminate firing fled away on said vehicle. Muhammad Shahzad, Constable (PW-7) also sustained fire-arm injuries during the occurrence. Contrary to this, MLR (Exh. PQ) pertaining to Babar Ali (injured PW-6) and MLR (Exh. PR) pertaining to Muhammad Shahzad (injured PW-7) show that injuries on their persons were caused with sharp edged weapon and possibility of fabrication regarding these injuries cannot be ruled out. Thereafter, with different ink, it is also mentioned that injuries were result of fire-arms. Dr. Sammar Saleem (PW 12) also admitted in his cross-examination that handwriting in blue ink on Exh. PQ was written on 02.09.2019 whereas the handwriting in black ink was written on 26.11.2019, he had mentioned the possibility of fabrication qua the injuries on the persons of both injured PWs cannot be ruled out.
5. Appellants have not been nominated in the FIR rather were arrested being suspects whereafter PWs i.e. Azad Khan, T/ASI (PW-8), Babar Ali, Constable (PW-6) and Muhammad Shahzad (PW-7) have identified them during identification parade held in Adiala Jail, Rawalpindi which identification parade is not free from doubt as occurrence took place in dark hours of the night i.e. 9:40 p.m. and source of light has not been disclosed. Secondly, arrest of the appellants by police officials being suspects whereafter their identification by the police officials, considering the peculiar circumstances of this case, is highly unsafe and not reliable.
6. Recovery of the car from open plot and articles lying therein is also not believable. Jahangir Asghar (PW-9) stated in his statement before learned trial Court that Muhammad Danish (appellant) being his driver used to ply recovered car i.e. CU-095 Toyota Corolla Black coloured GLI Model 2014 with authority letter but this story is also not believable. Recovery of rifle 222 and pistol 30 bore on pointing out of Nageeb-ur-Rehman (eppellant) from the graveyard being an open place and accessible to everyone is also not believable.
7. In view of the above discussion, we entertain serious doubt in our minds regarding participation of the appellants in the present case. It is settled principle of law that for giving benefit of doubt, it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in the prudent mind about the guilt of the accused, then he would be entitled to its benefit not as a matter of grace or concession, but as of right.
8. For the foregoing reasons, these appeals are allowed convictions and sentences of the appellants (Muhammad Danish and Naqeeb-ur-Rehman) awarded by learned trial Court through impugned judgment are hereby set-aside. They are acquitted of the charges and directed to be released forthwith, if not required in any other case.
9. Before parting with this judgment, it is observed that statedly two accused are POs whose case shall be decided on their own merits without being influenced from this judgment on their arrest.
(A.A.K.) Appeal allowed
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