PLJ 2024 Cr.C. (Note) 283
[Lahore High Court, Multan Bench]
Present: Sadaqat Ali Khan and Shehram Sarwar Ch., JJ.
MUBASHIR HUSSAIN--Appellant
versus
STATE and another--Respondents
Crl. A. No. 846 & M.R. 101 of 2019, decided on 12.9.2024.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302/109/34--Qatl-i-Amd--Acquittal of co-accused--Dishonest improvements--Independent witness--Ocular account--Benefit of doubt--Acquittal of--Complainant instituted a private complaint--Almost on same facts as narrated in FIR--The presence of above said PWs on spot at time of incident is doubtful in nature because they have not given any plausible reason for their presence on spot at time of incident--Co-accused of appellant were wedded with role of causing injuries on person of deceased but they were found not involved during course of investigation and ultimately, they were acquitted--Eyewitnesses while appearing before Trial Court in order to strengthen prosecution case made dishonest improvements--Matter of extending threats by appellant to deceased was not reported to police--Prosecution has not been able to substantiate alleged motive behind occurrence--Prosecution has failed to associate any independent witness of locality as in evident from recovery memo--Evidence furnished by witnesses of ocular account is shaky in nature--Prosecution remained filed to discharge its responsibility of proving case against appellant--Appellant is acquitted of charge. [Para 3, 5 & 6] A, B, C, E, F, G, H, I
2010 SCMR 385; 1993 SCMR 550; 2017 SCMR 898; 1995 SCMR 599; 2009 SCMR 230 ref.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302/109/34--Qatl-i-Amd--Acquittal of co-accused--Evidence which was found doubtful to extent of co-accused of appellant cannot be believed against appellant. [Para 5] D
2022 SCMR 393; 2016 SCMR 1763 ref.
M/s. Malik Shah Nawaz Khokhar, Muhammad Nauman and Imran Saqi, Advocates for Appellant.
Ch. Muhammad Akbar, Addl. Prosecutor General for State.
M/s. Muhammad Majid Shahbaz, Muhammad Ramzan Jugg, Faisal Nawaz Khan and Malik Khalil Ahmad, Advocates for Complainant.
Date of hearing: 12.9.2024.
Judgment
Shehram Sarwar Ch. J.--Mubashir Hussain (appellant) along with his co-accused namely Abdul Rehman, Muhammad Arshad, Muhammad Amin Asif and Muhammad Yasin was tried by learned Addl. Sessions Judge, Karor Lal Eason District Layyah in a private complaint under Sections 302, 109 and 34, PPC instituted in case FIR No. 349 dated 03.07.2018 registered at Police Station Fatehpur District Layyah for the murder of Muhammad Sadiq (deceased) maternal uncle of complainant. Vide judgment dated 25.07.2019 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. 5,00,000/- (rupees five 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, Abdul Rehman, Muhammad Arshad, Muhammad Amin Asif and Muhammad Yasin, co-accused of the appellant were acquitted of the charge by extending them benefit of doubt and Crl. Appeal No. 975 of 2019 filed by the complainant against their acquittal has been dismissed as withdrawn today vide separate order. Assailing the above conviction and sentence, the appellant has filed the appeal in hand whereas the learned trial Court has sent Murder Reference No. 101 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.PD/1) registered on the statement (Ex.PD) of Muhammad Yousaf, complainant (PW.9) is that in year 2007, Muhammad Sadiq maternal uncle of complainant contracted second love marriage with Mst. Shazia Parveen as no son was born out of the first marriage and Mubashir Hussain (appellant) brother of Shazia Parveen used to extend threats of killing to Muhammad Sadiq owing to said marriage. On 01.07.2018, some unknown person threatened maternal uncle of complainant on telephone. On 03.07.2018 at around 1.00 p.m. Muhammad Sadiq went to look after his citrus garden situated at a distance of one kilometer from his house. After a short while, the complainant along with Muhammad Shahzad and Muhammad Aslam went after his maternal uncle to see him. They were sitting near the tube-well of his maternal uncle and ware busy in chitchat. At about 2.00 p.m. all of a sudden, Mabashir Hussain (appellant) armed with toka, Abdul Rehman armed with hatchet and Muhammad Arshad armed with toka arrived there. Mubashir Hussain while brandishing his toka extended threat to Muhammad Sadiq to teach him a lesson for contracting love marriage with his sister Mst. Shazia Parveen. The appellant also extended threats of killing to the complainant party in case they come forward. Within the view of complainant party, Mubashir Hussain inflicted five successive toka blows to Muhammad Sadiq, which landed on middle of his head, right side of face, lower lip on jaw, nose and neck. Blood started oozing and Muhammad Sadiq fell down. Muhammad Arshad gave three consecutive toka blows hitting maternal uncle of complainant on his forehead and both cheeks. Two hatchet blows were given by Abdul Rehman hitting on the back of left wrist and left leg of Muhammad Sadiq. After leaving the spot by the accused, the complainant party attended Muhammad Sadiq, who had succumbed to the injuries. Motive behind the occurrence as alleged in the FIR was that in year 2007, Muhammad Sadiq maternal uncle of complainant had contracted love marriage with Mst. Shazia Parveen sister of Mubashir Hussain and Abdul Rehman and due to that revenge, the accused committed the murder of deceased on the abetment of Amin, Asif and Muhammad Yasin.
3. Being dissatisfied with the investigation conducted by police, the complainant instituted a private complaint titled as “Muhammad Yousaf vs. Mubashir Hussain etc.”, almost on the same facts as narrated in the FIR.
4. We have heard arguments of learned counsel for the he 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 ocular account in this case has been furnished before the learned trial Court by Muhammad Yousaf, complainant (PW.9) and Muhammad Shahzad (PW 10). The presence of above said PWs on the spot at the time of incident is doubtful in nature because they have not given any plausible reason for their presence on the spot at the time of incident and simply stated by the complainant that he along with Muhammad Shahzad (PW.10) and Muhammad Aslam (given up PW) went to the dera of Muhammad Sadiq (deceased) whereas the stance of Muhammad Shahzad (PW.10) was that he along with complainant, Muhammad Aslam and Muhammad Sadiq (deceased) was sitting in citrus orchard near the tube-well. It was case of the prosecution in the FIR, private complaint and before the learned trial court that Mubashir Hussain (appellant) inflicted five successive toka blows to Muhammad Sadiq (deceased), which landed on middle of his head, right side of face, jaw, nose and neck; Muhammad Arshad gave three consecutive toka blows hitting the deceased on his forehead and both cheeks; two hatchet blows were given by Abdul Rehman hitting on the back of left wrist and left leg of the deceased. We have observed that Abdul Rehman and Muhammad Arshad, (co-accused of the appellant were wedded with the role of causing injuries on the person of the deceased but they along with Muhammad Amin Asif and Muhammad Yasin, co-accused were found not involved during the course of investigation conducted by Ghulam Shabbir, Inspector (CW.2) and ultimately, they were acquitted of the charge by the learned trial Court and Crl. Appeal No. 975 of 2019 filed by the complainant against their acquittal has been dismissed as withdrawn by this Court. 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). We have also noted that the eye-witnesses while appearing before the learned trial Court in order to strengthen the prosecution case made dishonest improvements. They were confronted with their previous statements (Ex.PD and Ex.DC) and improvements were brought on record. It is well settled by now that when a witness improves his statement to strengthen the prosecution case and the moment it is concluded that the improvement was made deliberately and with mala fide intention the testimony of such witness does not remain reliable. While holding so, we are fortified by the dictum laid down by the Hon’ble Supreme Court of Pakistan in the cases reported as “Muhammad Rafique and others versus The State and others” (2010 SCMR 385) and “Syed Saeed Muhammad Shah and another versus The State” (1993 SCMR 550). The motive behind the occurrence as alleged in the FIR, private complaint and brought before the learned trial court was that in year 2007. Muhammad Sadiq (deceased) entered into a runaway marriage with Mst. Shazia Parveen sister of Mubashir Hussain (appellant) and Abdul Rehman (since acquitted) and due to that revenge, the appellant along with his co-accused committed the murder of deceased. The marriage of deceased was solemnized with sister of appellant in year 2007 but no untoward incident took place during this long interregnum. The matter of extending threats by the appellant to the deceased was not reported to the police. Even 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 toka (P.5) at the instance of the appellant is concerned, the same is inconsequential for the reasons that the prosecution has failed to associate any independent witness of the locality as is evident from the recovery memo. (Ex.J), which bears the signatures of the police officials as recovery witnesses. Thus, the mandatory provisions of Section 103, Cr.P.C. had flagrantly been violated in that regard. Reliance may be placed on case law titled as “Muhammad Ismail and others vs. The State” (2017 SCMR 898). 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.
6. 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).
7. For the foregoing reasons, the appeal in hand filed by Mubashir Hussain (appellant) is allowed, conviction and sentence awarded to the appellant vide judgment dated 25.07.2019 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.
8. Murder Reference No. 101 of 2019 is answered in the NEGATIVE and the sentence of death awarded to Mubashir Hussain (convict) is NOT CONFIRMED.
(K.Q.B.) Appeal allowed
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