PLJ 2024 Cr.C. (Note) 255
[Lahore High Court, Multan Bench]
Present: Sadaqat Ali Khan and Shehram Sarwar Ch., JJ.
versus
STATE--Respondent
Crl. A. No. 1122-J & M.R. No. 124 of 2019, heard on 18.9.2024.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conflict between ocular and medical evidence--Credibility of eye-witnesses--Benefit of doubt-- Had eyewitnesses been present at time of occurrence at place of occurrence, they could have easily empowered him (appellant) to rescue deceased--Rough and scaled site plans of place of occurrence also do not show houses of these witnesses around place of occurrence--They, being chance witnesses, have failed to establish their presence at time of occurrence at place of occurrence with their stated reasons--Held: It is settled principle of law that for giving benefit of doubt, it
is necessary that there should be many circumstances creating doubt--If there is an 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 a watter of right. [Para 9, 10 & 13] A, B & C
2008 SCMR 95, 2011 SCMR 1190, 2014 SCMR 1698 &
2017 SCMR 564.
M/s. James Joseph and Rao Shiraz Raza, Advocates for Appellant.
Mr. Muhammad Akbar, APG for State.
M/s. Ch. Daud Ahmad Wains, Javed Abbas Sial, Haider Ali Haq, Iqbal Hussain Khan Baloch, MianYasir Hameed Bhatti, Imran Rasheed Sulehri and Ms. Quratula Ain Ijaz, Advocates for Complainant.
Date of hearing: 18.9.2024.
Judgment
Sadaqat Ali Khan, J.--Appellant (Muhammad Amir) has been tried by the trial Court in case FIR No. 436 dated 18.09.2018 in offences under Sections 324, 302 and 34, PPC Police Station City Jalalpur Pirwala, District Multan and was Convicted and sentenced vide judgment dateda 03.08.2019 as under:
Muhammad Amir (appellant)
Under Section 302(b), PPC Sentenced to DEATH as Tazir for committing. Qatl-i-Amd of Azhar Hussain (deceased) with compensation of Rs. 3,00,000/- payable to legal heirs of the deceased under Section 544-A, Cr.P.C. recoverable as arrears of land revenue, and in default whereof to undergo simple imprisonment for 6-months.
2. Appellant has filed this Criminal Appeal against his conviction and the trial Court has sent Murder Reference for confirmation of his death sentence or otherwise, which are being decided through this single judgment.
3. Heard. Record perused.
4. Azhar Hussain sustained injuries (died later on, on the same might) during the occurrence took place on the passage on 18.09.2018 (specific time has not been mentioned in the FIR, it is only mentioned that half an hour before Maghrib) Whereafter FIR was lodged on the same evening at 7:15 p.m. on the statement of his maternal grandfather Muhammad Bakhsh PW-2, who while claiming himself to be the eye-witness of the occurrence stated in his statement before the trial Court as under:
“Stated that on 18.09.2018 about prior to half hour of maghrib I along with my grandson namely Azhar Hussain son of Ghulam Hussain (deceased) were going back to our home from Ali PurSaddat on motorbike having vegetables. When we reached on a turn near Nawan Koh Walah suddenly accused persons namely Aamir Hussain son of Imam Bakhsh present in the Court and one unknown accused person to whom I can identify if he come before me came on motorbike behind us. The unknown person was driving motorbike while the accused Aamir present in the Court was sitting on his back. They stopped their motorcycle in front of our bike and stopped us. At that instance the accused Aamir present in the Court raised a lalkara and took his “chura” and said that he will teach a lesson to Azhar Hussain for his insult and he will not let him alive. Upon this I made hue and cry whereas my grandson start running after lifting motorbike. Upon my hue and cry witnesses namely Muhammad Haji and Muhammad Iqbal attracted there and reached at the place of occurrence. Within our view, accused Aamir present in the Court made chura blow which hit on his left side of his back. Upon which my grandson was fell down. Accused Aamir pull out the chura (churranikal) from the back of my grandson and threatened us that if any one came near to him, he will kill them. After that accused Aamir fled away from the place of occurrence along with unknown person and weapon of murder “Chura” on his motorbike. My grandson was 24/25 years of aged, the accused persons injured my grandson with the intention of murder. The grudge behind the occurrence is that the injured Azhar Hussain (since died) forbade the accused Aamir present in the Court to stand outside his home and to make wrong gestures. Due to this revenge accused Aamir present in the Court alongwith his co-accused injured my grandson.”
5. Muhammad Haji PW-3 (Khalu of the deceased) and Muhammad Iqbal PW-4 (Mamu of the deceased) while appearing before the trial Court have reiterated the same story.
6. It is mentioned in the FIR that complainant witnessed the occurrence when he was coming with the deceased on motorcycle but neither its registration number has been disclosed in the FIR nor same has been produced before the IO to establish his presence. Record shows that Muhammad Riaz was with the deceased/the then injured in the hospital but he has not been produced, rather has been given up being won over which is not believable as appellant has no relation with said Muhammad Riaz, who was paternal uncle of the deceased and was not ready to support concocted story of the prosecution.
7. The argument of learned counsel for the complainant that medical officer has stated that the presence of Muhammad Riaz shown in the document with the deceased/the then injured is result of fabrication is also not believable.
8. Medical Officers during medical examination as well as post-mortem examination on the dead body of Azhar Hussain (deceased/the then injured) observed three injuries i.e. (1) an incised stitched wound on back and left side of chest, (2) an incised wound on lateral aspect on right shoulder and (3) an incised wound on left side of upper chest of the deceased. Medical Officers also observed an abrasion on right big toe of Azhar Hussain (deceased the then injured). Contrary to this, all the eye-witnesses have stated in their examination-in-chief before the trial Court that appellant in their view caused single injury on back of left chest of the deceased and other injuries (mentioned above) have not been explained despite the fact that Dr. Majid Mushtaq stated in his cross-examination that Injury Nos. 2 and 4 (mentioned above) are not surgical injuries. This conflict between ocular and medical evidence is not ignorable, rather shatters the credibility of the eye-witnesses.
9. Statedly, four persons i.e. Muhammad Bakhsh PW2, Muhammad Haji PW-3, Muhammad Iqbal PW-4 and Muhammad Riaz (given up PW) had witnessed the occurrence. On the other hand, deceased sustained injuries on his person with repeated Churri blows at the hands of the appellant, who was not armed with any fire-arm which could have scared the witnesses away but despite claimed presence of four persons (eye-witnesses), appellant had a free hand to cause injuries with repeated blows of Churri on the person of deceased and they have not come forward for his rescue. This all makes the presence of the eye-witnesses doubtful. Had the eye-witnesses been present at the time of occurrence at the place of occurrence, they could have easily empowered him (appellant) to rescue the deceased. 2008 SCMR 95 “Liaquat Ali vs. The State” and 2011 SCMR 1190 “Irshad Ahmed vs. The State”.
10. Rough and scaled site plans of the place of occurrence also do not show the houses of these witnesses around the place of occurrence. They, being chance witnesses, have failed to establish their presence at the time of occurrence at the place of occurrence with their stated reasons. 2014 SCMR 1698 “Muhammad Rafique v. The State” and 2017 SCMR 564 “Arshad Khan vs. The State”.
11. Muhammad Haji PW-3 stated in his statement before the trial Court that on 2.10.2018, appellant during interrogation disclosed and got recovered Chura from his house. IO has not joined any independent person from the locality of the place of recovery to witness the recovery proceedings as rough site plan of place of recovery does not show the house of this witness around the place of recovery, hence, this recovery is not believable. 2008 SCMR 1064 “Ghulam Akbar and another vs. The State”.
12. Motive of the occurrence was that Azhar Hussain (deceased/the then injured) forbade the appellant to stand outside of his house and to make wrong gestures but its detail has not been disclosed which is not believable.
13. In view of the above discussion, we entertain serious doubt in our minds regarding participation of the appellant the present case. It is settled principle of law that for giving benefit of doubt, it is necessary that there should be many circumstances creating doubt. If there is an 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.
14. For the foregoing reasons, this appeal is allowed, conviction and sentences of the appellant (Muhammad Amir) conviction awarded by the trial Court through impugned judgment are hereby set-aside. He is acquitted of the charges and directed to be released forthwith, if not required in any other case. Murder Reference is answered in NEGATIVE and death sentence of the appellant (Muhammad Amir) is NOT CONFIRMED.
(A.A.K.) Appeal allowed
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