PLJ 2024 Cr.C. (Note) 290
[Lahore High Court, Multan Bench]
Present: Muhammad Waheed Khan, J.
RAJAB ALI--Appellant
versus
STATE etc.--Respondents
Crl. A. No. 70-J of 2013, heard on 10.9.2024.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Qatl-e-amd--Conviction and sentence--Challenge to--Recovery of weapon of offence is always considered to be corroboratory evidence and no conviction could be sustained on evidence of recovery alone, and while observing earlier, ocular account, furnished by prosecution has been doubted and disbelieved, so, evidence of recovery of weapon of offence, hardly advances case of prosecution in any manner--There are many lapses/lacunas in prosecution case and law is well settled that any ‘reasonable doubt’ arising out of prosecution case, shall be resolved in favour of accused--The evidence adduced by prosecution is not worth reliance and no implicit reliance can be placed on it to maintain conviction of appellant--Appeal is allowed.
[Para 9, 10 & 11] B, C & D
1995 SCMR 1345; PLD 2002 SC 1048 & 2019 SCMR 79.
Contradictory Statement--
----Contradictory statement cannot be held worthy of credence--Similarly, in other judgments rendered in various cases, apex Court, while finding conflict between ocular and medical evidence, proceeded to acquit accused. [Para 6] A
2016 SCMR 1628.
Prince Rehan Iftikhar and Hafiz Muhammad Haseeb, Adovcates for Appellant.
Rana Muhammad Nadeem Kanjo and Mehar Noor Hussain Malooka, Advocates for Complainant.
Mr. Muhammad Umar Farooq Khan, Addl. Prosecutor General for State.
Date of hearing: 10.9.2024.
Judgment
Appellant Rajab Ali has challenged his conviction and sentence awarded to him by the learned Judge Juvenile Court, Vehari vide judgment dated 11.03.2013 in case FIR No. 447/2011 registered u/S. 302, 34, PPC at Police Station Saddar, Vehari, whereby he was convicted and sentenced as under:
Under Section 302(b), PPC awarded life imprisonment. He was also directed to pay compensation of Rs. 50,000/- to the legal heirs of the deceased u/S. 544-A, Cr.P.C. and in default whereof to further undergo imprisonment for six months.
Benefit u/S. 382-B, Cr.P.C. was also extended to him.
Whereas his co-accused Talib Hussain was separately tried being major and also convicted.
2. Brief facts of the case as narrated by the complainant Allah Rakha in complaint Exh.PF are that on 04.08.2011 at about 4.30 p.m., his son Nazir Ahmad was standing outside his house, all of a sudden Rajab Ali armed with Chhura (چھرا), Talib Hussain armed with dagger and Shuban armed with hatchet assaulted on him, Rajab Ali made a Chhura (چھرا) blow at the neck of Nazir Ahmad, followed by a dagger blow of Talib Hussain at his left flank, on this his another son Bashir Ahmad intervened, whereby Talib Hussain also gave him a dagger blow on his flank, who fell down and Muhammad Shuban caused hatched blow to Bashir Ahmad on his left thigh. On hue and cry, Ghulam Rasool s/o Muhammad Yousaf, Ghulam Yasin and other persons of the village attracted to the spot, who witnessed the occurrence, whereas the aforesaid accused succeeded in fleeing away.
The motive behind the occurrence was that Mst. Nasreen Bibi daughter of brother of complainant Ahmad Bakhsh was married to Talib Hussain accused, who had come to her parents and mother of Talib Husain came to take her back, whereupon they said that she would be sent after few days, hence, due to this grudge Talib Hussain, etc. In furtherance of their common intention, committed Qatal-i-amd of Nazir Ahmad and injured Bashir Ahmad.
3. After registration of case, matter was investigated and two different reports u/S. 173, Cr.P.C. were submitted before the learned trial Court while declaring the appellant and his co-accused Muhammad Shuban and Talib Hussain as guilty. Thereafter, formal charge was framed against the appellant, to which he pleaded not guilty and claimed trial. The prosecution in order to prove its case produced as many as eleven witnesses and after producing certain documents closed its evidence. After completion of prosecution evidence, statement of the appellant was recorded u/S. 342, Cr.P.C., in which he denied all the allegations leveled against him by the prosecution. He neither opted to appear as his own witness u/S. 340 (2), Cr.P.C., nor produced any defence evidence. After evaluating prosecution evidence available on record, learned trial Court found the prosecution version correct beyond any shadow of doubt to the extent of the appellant, which resulted into conviction and sentence of appellant Rajab Ali in the afore stated terms.
4. In support of the instant appeal, learned counsel for the appellant submits that the prosecution story is inherently flawed and failed to inspire confidence; that the impugned judgment is based on surmises and conjectures and the material evidence in favour of the appellant has been misread; that the ocular account has been disbelieved to the extent of Talib Hussain, whereby he was acquitted from the charge of murder of Nazir Ahmad; that there is glaring contradiction between the ocular account and the medical evidence; that the motive part of the incident has been disbelieved by the learned Trial Court, by observing that the alleged incident took place at the spur of moment and the stated recovery of weapon of offence is of no consequence, as having certain defects in it and lastly submits that since the prosecution has miserably failed to prove its case, as per dictates of law, so, by accepting the instant appeal, the appellant be acquitted from the charge.
5. Conversely, learned Addl. Prosecutor General assisted by the learned counsel for the complainant refuted the arguments advanced by the learned counsel for the appellant and faithfully defended the impugned judgment, by stating that the prosecution has successfully brought home the guilt of the appellant by producing cogent, trust-worthy and confidence inspiring natural evidence; that one of the eye-witness Bashir Ahmad, was having the stamp of injuries, so, his testimony cannot be disbelieved on any hypothesis; that the ocular account, adduced by the prosecution has been sufficiently corroborated by the other pieces of evidence, like recovery of weapon of offence and the motive part of incident and lastly submit that since the prosecution has proved its case to the hilt against the appellant, hence, the appeal filed by him is liable to be dismissed.
6. I have heard arguments of learned counsel for the parties and have perused the record with their assistance and noted that machinery of law was set into motion by Allah Rakha (PW.8), father of the deceased Nazir Ahmad, while lodging the complaint Exh.PF& FIR Exh.PB, contending that on the day of incident i.e. on 04.08.2011 at about 4.30 p.m., his son Nazir Ahmad was standing outside his house, all of a sudden Rajab Ali armed with Chhura (چھرا) اTalib Hussain appellant armed with dagger and Muhammad Shuban armed with hatchet assaulted on him, Rajab Ali made a Chhura (چھرا) blow at the neck of Nazir Ahmad, followed by a dagger blow of Talib Hussain at his left flank, on this his another son Bashir Ahmad intervened, whereby Talib Hussain also gave him a dagger blow on his flank, who fell down. Similarly, Muhammad Shuban caused hatched blow to Bashir Ahmad on his left thigh. On hue and cry, the other witnesses attracted to the spot. The incident allegedly took place in the back-drop of a motive that Mst. Nasreen Bibi daughter of brother of complainant Ahmad Bakhsh was married to Talib Hussain accused, who on account of strained relations, had come back to her parents home and was not willing to restore the matrimonial life with Talib Husain. Owing this grudge, the occurrence took place, whereby one Nazir Ahmad lost his life, whereas Bashir Ahmad (PW.9) sustained severe injuries on his person. I have straightway observed that Rajab Ali and Talib Hussain were attributed the active role of causing injuries with Chhura (چھرا) and dagger in the FIR and also during the statement in terms of Section 161, Cr.P.C. of the witnesses, they along with their co-accused Muhammad Shuban were challand but on culmination of the trial, Talib Hussain was acquitted from the charge of murder of Nazir Ahmad, whereas he was convicted and sentenced of causing injury on the person of Bashir Ahmad (PW.9). I have gone through the reasons cited by the learned Trial Court in para Nos. 26 & 28 of the judgment, for acquitting Talib Hussain from the charge of homicide. I have noted that the learned Trial Court had observed that the incident took place all of a sudden at the spur of moment, without any meditation and also that injury attributed to him (Talib Hussain) at the person of Nazir Ahmad deceased, was also not proved, as the ocular account in this regard was contradicted by the medical evidence and his vicarious liability and element of sharing common intention, has also not been proved. I have repeatedly asked the learned law officer and the learned counsel for the complainant about this aspect that whether there is any mis-reading of evidence by the learned Trial Court in this regard, they remained unable to respond the query satisfactorily and could not point out any mis-reading or non-reading of evidence on part of the learned Trial Court, meaning thereby that the evidence of the star-witness of the prosecution i.e. Bashir Ahmad, who undoubtedly was having the stamp of injury on his person, had already been disbelieved by the learned Trial Court to the extent of culpability of Talib Hussain with respect to his role of causing injury to Nazir Ahmad deceased. Adverting to the arguments of learned counsel for the appellant with regard to the conflict between the ocular account and the medical evidence, I have gone through the testimony of the eye-witnesses and noted that case of the prosecution, since inception has been that Rajab Ali appellant, caused Chhura )چها( blow at the neck of Nazir Ahmad deceased and Talib Hussain caused dagger on his left flank, whereas no injury at the person of the deceased has been attributed to Muhammad Shuban. To appreciate this argument of learned counsel for the appellant, I have also gone through the medico legal certificate, post-mortem report and also the testimony of Dr. MojeeburRehman (PW.6) and observed that the said doctor conducted the autopsy on the dead-body of the deceased at 11:00 p.m. on 04.08.2011 and noted two injuries:
Injury No. 1. An incised wound 6cm x 2cm going deep on front of upper part of chest just about right clavicle.
Injury No. 2. An incised wound 10cm x 4cm x muscle deep on the posterior part of left upper arm 12cm below the top of shoulder joint.
So, on going through the seat of both the injuries, the conclusion is inescapable that there is force in the arguments of learned counsel for the appellant that the medical evidence is not in-line with the prosecution case rather it contradicts the same, as the injury attributed to both the appellants i.e. Rajab Ali and Talib Hussain at the neck and flank, were not found mentioned in the post-mortem. Similarly, according to the prosecution case, Talib Hussain inflicted dagger blow at the flank of Bashir Ahmad injured PW and Muhammad Shuban’s blow of hatchet, stated to be landed at his left thigh, were also contradicted with the medical evidence, as observed by Dr. Muhammad Aslam, while deposing in the dock as PW.1. According to his testimony, he observed an incised wound 3 cm x 1 cm x bone deep on back of left hand of Bashir Ahmad, whereas a penetrating wound 3 cm x 1 cm x going deep on outer side lower part left side of abdomen 5 cm above left iliac spine. I have also noted that the eye-witnesses have improved their version, while getting recorded their depositions before the learned Trial Court in this regard, in order to bring their testimony in-line with the prosecution case, which can be termed as dishonest improvement Reliance in this regard may be placed on the cases of “Muhammad Mansha v. The State” (2018 SCMR 772), “Abdul Jabbar and another v. The State” (2019 SCMR 129) and “Muhammad Arif v. The State” (2019 SCMR 631).
There is another aspect of the case that according to the prosecution case, Bashir Ahmad (PW.9) was operated in the Nishtar Hospital, Multan by Dr. AmjadAleem, who was also cited as a witness in the calendar of witness but the said witness did not appear in the dock to favour the prosecution and it is also note-worthy that the operation notes, prepared by the said witness had also not been got exhibited by the prosecution. So, this failure on part of the prosecution also goes against it. The august Supreme Court of Pakistan in case of “Ibrar Hussain and others v. The State and another” (2007 SCMR 605) held that contradictory statement cannot be held worthy of credence. Similarly, in other judgments rendered in various cases, the apex Court, while finding conflict between the ocular and medical evidence, proceeded to acquit the accused. Reliance in this regard is placed on the case of “Nazeer Ahmed v. The State” (2016 SCMR 1628).
7. I have also observed that the complainant had challenged the decision of the learned Trial Court by filing an appeal against acquittal from the charge of Qatl-e-Amd and also filed a criminal revision for enhancement of sentence but both i.e. the appeal and the revision petition have already been dismissed by this Court. It is also pertinent to mention there that co-accused/convict Muhammad Shuban, who has also been tried separately, was convicted and sentenced by the learned Trial Court as two years R.I. u/S. 337-F(ii), PPC, has already been released from jail, after serving out his sentence and learned counsel for the appellant admitted that he had never challenged his conviction before this Court.
8. Now, coming to the motive part of the incident, although it is alleged in the FIR that Mst. Nasreen Bibi daughter of brother of complainant, namely, Ahmad Bakhsh was married to Talib Hussain accused, who had come to her parents and was not willing to restore the matrimonial relations but neither said Ahmad Bakhsh, who is statedly real brother of complainant Allah Rakha nor Mst. Nasreen Bibi, who were the important witnesses of the prosecution to prove the motive, have been ever associated in the investigation or appeared before the learned Trial Court, to depose this aspect of the case and as discussed above the learned Trial Court has disbelieved the motive set-up by the prosecution, by observing that the occurrence took place in the spur of moment, without any premeditation.
9. So far as the Chhura (چھرا) allegedly recovered from the possession of the appellant is concerned, the same was found to be stained with human blood vide report of Chemical Examiner Punjab, Lahore (Exh.PQ) but without going into the veracity of the same, I observe that recovery of weapon of offence is always considered to be the corroboratory evidence and no conviction could be sustained on the evidence of recovery alone, and while observing earlier, the ocular account, furnished by the prosecution has been doubted and disbelieved, so, the evidence of recovery of weapon of offence, hardly advances the case of the prosecution in any manner.
10. So, viewing the facts of the case in its totality, I found that there are many lapses/lacunas in the prosecution case and law is well settled that any ‘reasonable doubt’ arising out of the prosecution case, shall be resolved in favour of the accused. Reliance is placed on the judgments passed by the august Supreme Court of Pakistan in cases of “Tariq Pervez v. The State” (1995 SCMR 1345), “Ayub Masih v. The State” (PLD 2002 SC 1048) and “Munir Ahmad and another v. The State and others” (2019 SCMR 79).
11. So, for the foregoing reasons, I believe that the evidence adduced by the prosecution is not worth reliance and no implicit reliance can be placed on it to maintain the conviction of the appellant. Resultantly, this appeal is allowed and the conviction and sentence awarded to the appellant, Rajab Ali, vide judgment dated 11.03.2013 by the learned Judge Juvenile Court, Vehari, is set-aside. He is acquitted of the charge(s). He be released forthwith, if not required to be detained in any other case.
(A.A.K.) Appeal allowed
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