PLJ 2024 Cr.C. (Note) 288
[Lahore High Court, Multan Bench]
Present: Sardar Ahmed Naeem, J.
MAQBOOL ANWAR, etc.--Appellants
versus
STATE, etc.--Respondents
Crl. A. No. 949 of 2011, P.S.L.A. No. 13 of 2012 & Crl Rev No. 63 of 2012, heard on 26.2.2018.
Pakistan Penal Code, 1898 (V of 1898)--
----Ss. 302, 324, 148 & 149--Qatl-e-amd--Conviction and sentence--Challenge to--The complainant party has shown some enmity of accused party for contesting seat on account forthcoming selection of village head man and as eye witnesses were closely related to deceased fall within domain of interested witnesses and for purpose of recording conviction in The offences involving capital punishment, rule of prudence and caution demands that there should be independent corroboration to prosecution case but Court have individually thoroughly scanned entire record and have analytically observed all attending circumstances and it was obvious that no independent corroboration in form of circumstantial evidence was forthcoming in support of ocular testimony of interested witnesses, rather, it was a case where circumstantial evidence did not support prosecution version, as none of injured witness was examined during trial, no recovery was effected from appellant and others, coupled with their declaration of innocence consecutively by investigating agency, DSP and SSP, coupled with acquittal of his co-accused, thus, in wake of above discussion and in view of submissions made by counsel for appellant, Court have no hesitation to hold that conviction of appellant is not warranted by law and is result of erroneous interpretation of facts and circumstances of case--Appeal accepted.
[Para 26] B
False Implication--
----It is settled law that if majority of accused nominated in a case is acquitted on account of false implication by eye witnesses, then, allegations qua remaining accused on basis of same set of evidence cannot be sustained without strong/independent corroboration.
[Para 25] A
PLJ 2004 SC 552; 2000 SCMR 1758 and 2008 SCMR 6.
Mr. Haseeb Qadir, Advocate along with Taj appellant in person (in Crl. A. No. 949 of 2011).
Mr. Tahir Mehmood Advocate for Complainant/Petitioner (in P.S.L.A. No. 13 of 2012 and Crl. Rev. No. 63 of 2012).
Mr. Hassan Mehmood Khan Tareen, Deputy Prosecutor General for State.
Date of hearing: 26.2.2018.
Judgment
Maqbool Anwar and Taj (appellants) alongwith Muhammad Akram, Muhammad Ashraf and Muhammad Asghar co-accused (since acquitted) were tried by the learned Sessions Judge, Sahiwal, in a private complaint under Sections 302, 324 148, 149, 337-F(iii), 337-F(v), 337-D, 337-A(ii) 337-A(i), 337-F(i), PPC benig dissatisfied with the investigation of case FIR No. 440 dated 05.11.2004 for offences under Sections 302, 324, 148, 149, PPC got registered by Sana Ullah complainant at Police Station Yousaf wala, District Sahiwal. At the conclusion of the trial, vide judgment, dated 18.10.2011, the learned trial Court acquitted Muhammad Akram, Muhammad Ashraf and Muhammad Asghar co-accused whereas convicted the appellants Maqbool Anwar and Taj as under:
(i) “under Sections 302(b)/34, PPC each and sentenced to imprisonment for life each with a direction to pay a sum of Rs. 1,00,000/- each under Section 544-A, Cr.P.C. as compensation to the legal heirs of the deceased, in default thereof, to further undergo imprisonment for six months
(ii) “under Sections 324/34, PPC and sentenced to rigorous imprisonment for seven years. Each on two counts for causing injuries to Sana Ullah complainant and Abdul Sattar PW with fine of Rs. 10,000/ on two counts each. In case of default, each of the convicts was ordered to suffer imprisonment for two months
All the sentences were ordered to run concurrently. The appellants were however, extended benefit of Section 382-B, Cr.P.C.
2. Maqbool Anwar and Taj appellants filed Criminal Appeal No. 949 of 2011 challenging convictions and sentences awarded to them by the learned trai Court, Sana Ullah complainant/petitioner filed P.S.L..A No. 13 of 2012 against the acquittal of Muhammad Akram, Muhammad Ashraf and Muhammad Asghar respondents No. 2 to 4. Sana Ullah complainant/petitioner also filed Criminal Revision No. 63 of 2012 for enhancement sentence from life imprisonment to normal penalty of death to respondents No. 2 and 3. Through this single judgment, I propose to decide all the above mentioned matters.
3. Allegedly, Maqbool Anwar and Taj appellants alongwith Muhammad Akram, Muhammad Ashraf and Muhammad Asghar co-accused while armed with deadly weapons committed the murder of Muhammad Ismail deceased and inflicted injuries on the person of Sana Ullah complainant, Ghulam Rasool, Abdul Sattar, Ghulam Nabi, Muhammad Hussain, Muhammad Iqbal, Nawaz s/o Rustam and Nawaz s/o Idrees injured. Hence the present FIR.
4. After registration of FIR, investigation was conducted by the local police and except Maqsood Anwar (since P.O.), all the accused persons mentioned in the FIR were declared innocent. On 21.12.2004, the investigation of the case was transferred to SSP (Investigation) Sahiwal but result of second investigation was the same. On 07.01.2006, being dissatisfied with the investigation of FIR, the complainant filed private complaint. After cursory evidence, the accused persons were summoned to face trial. The learned trial Court framed charges against the accused persons to which, they pleaded not guilty and claimed trial, hence the prosecution evidence was invited. The prosecution in order to establish its case produced as many as seven witnesses in all and the learned trial Court recorded statements of ten CWs.
5. Sana Ullah complainant (PW-1) supported the prosecution story as mentioned in the private complaint. Abdul Sattar injured (PW-2) corroborated the statement of the complainant.
6. Doctor Saeed Ahmad Kamyana (PW-3) conducted medical examinations of Abdul Sattar injured and found two injuries, Muhammad Nawaz s/o Muhammad Idrees two injuries, Ghulam Rasool two injuries and Ghulam Nabi two injuries.
7. Doctor Arif Mehmood, Radiologist (PW-4) took X-Ray of Abdul Sattar injured on 11.11.2004 and found right and left partially collapsed lungs and right and left pneumothorax. Right neck and chest soft tissues emphysema. However, the above mentioned injuries were caused by firearm. He took X-Ray of Muhammad Nawaz and found no metallic foreign body. He took X-Ray of Ghulam Rasool and found no fracture on the body, however. Multiple metallic particles scattered in the right leg. He took X-Ray of Sana Ullah and found no fracture skull, fracture left ulna lower one third, metallic particles over the right parietal bone. He took X-Ray of Nawaz s/o Rustam and found fracture on right calcaneus, normal right ankle joint, no fracture of right foot, metallic particles over lying lower end of the right tibia. He also took X-Ray of Muhammad Hussain and found no fracture on left leg.
8. Doctor Syed Hafeez-ur-Rehman (PW-5) conducted post-mortem examination on the dead body of Muhammad Ismail deceased on 06.11.2004 and found following injuries on his person:
i. Entry wound. A lacerated wound ½ cm x 2/3 cm into deep going on right side of chest at 3rd intercostal space, 3/1-2 cm from the mid line of chest, 7½ cm above and inside to right nipple owal shape with long exis above downwards, margins were inverted contused collar line mainly at the upper portion as illustrated. Smudge ring (leadring, grease collar) was present on the clothes le. Kmeez.
ii. Exit wound. A lacerated wound 2/3 cm x 2/3 cm into deep going at lower part of waist on left side one cm below the line passing horizontally through the maximum curvature of hip bone and 3 cm to the left of midline with everted margins of the wound as well as of the hole on shalwar clotted blood was covering the entrance and exit wound. On turning the body blood came through the nose.”
9. Abdullah Tahir (PW-6) identified the dead body of Muhammad Ismail. He was also witness of last worn clothes of the deceased.
10. Atta Ullah (PW-7) was witness of recovery of blood stained earth of the spot. He was also witness of 15 crime empties of 222 rifle P3/1-8 from the place of occurrence which were taken into possession by the I.O. vide recovery Memo Ex.PJ.
11. The prosecution gave up Farooq, Muhammad Nawaz S/o Rustam Ali, having been won over, Muhammad Hussain, Muhammad Iqbal being died, Ghulam Rasool, Muhammad Nawaz s/o Idrees, Ghulam Nabi and Khalid Mehmood PW as being unnecessary.
12. The learned trial Court recorded statement ten CWs Muhammad Saeed Akhtar Draftsman (CW-1) inspected the place of occurrence and prepared scaled site plan Ex.CW1/A and CW1/B on the basis of rough notes.
13. Rao Shafqat Ali S.I. (CW-5) recorded the statement of Sana Ullah complainant on 5.11.2004. Thereafter, he inspected the spot and conducted usual investigation of the case. In his investigation, except Maqsood Anwar accused (since P.O.), all the accused persons were declared innocent.
14. Masood Iqbal S.P. (CW-8) investigated the case. He summoned both the parties and recorded their statements. He also visited the place of occurrence on 18.1.2005 and confronted both the parties. In his investigation, except Maqsood Anwar, all the accused persons were innocent.
15. Muhammad Baqar S.I. (CW-9) investigated the case and recorded statements of Najamul Hassan and Abdul Sattar Constable.
16. Muhammad Zulfiqar (CW-10) conducted inquiry regarding the application submitted by Sana Ullah complainant to the Provincial Ombudsman regarding the allegations against Shafqat S.I. Muhammad Baqir S.I. and Khalid Constable. In his inquiry, Ali the above named three persons were found guilty and recommended for their departmental action. Rest of the CWs are of formal nature and need not to be discussed.
17. The learned ADPP gave up Masood Ahmad Javed DSP as CWN on the report of Khalid Mehmood ASI P.S. Yousaf wala that he was not able to move. The report was supported by the Medical Certificate of the said DSP.
18. After conclusion of prosecution evidence, statements of the accused persons were recorded under Section 342, Cr.P.C. wherein they denied the allegations and pleaded innocence. Replying to the question “why this case against him and why the PWs deposed against him, appellant Maqbool Anwar stated that it is a false case. The PWs are related inter-se and with the deceased and they have made statements to support their false and fabricated version of the occurrence. He and his co-accused have been falsely involved by this complainant due to enmity. Replying to the Question “have you anything else to say,” the appellant stated as under:
“I am innocent. This case was investigated by many police officers of the Rank of DSP, SSP and the Higher Officers of the Range Crime Branch Multan. I and my co-accused facing trial in this case were not found involved in this occurrence. Our presence at the place of occurrence and at the time of occurrence was not found during all investigations. In fact Sana Ullah complainant had borrowed Rs. 300/- from Bashir Ahmad Muslim Sheikh of my village. Sana Ullah complainant did not pay back the said loan money to Bashir Ahmad despite his repeated demands due to which on the day of occurrence shortly before the main occurrence there was a quarrel between Sana Ullah complainant and Bashir Ahmad Muslim Sheikh outside the village Abadi, thereafter Sana Ullah went to the village Abadi where the sons and daughters of Bashir Ahmad Muslim Sheikh caused injuries to Sana Ullah complainant where Akram accused intervened to separate them and Akram accused sustained head injury and fell unconscious at the place of occurrence. A minor son of Akram accused informed Maqsood Anwar P.O. about the condition of Akram accused whe arrived there armed with rifle and made firing at the place of occurrence which resulted into injuries to Muhammad Ismail deceased and the injured PWs etc. But Sana Ullah complainant falsely involved me and my co-accused in this case. During the investigation the respectables of the village who also saw the occurrence gave grand Oath on Holy Quran in the village Mosque to the complainant party regarding our non involvement in this occurrence. During the occurrence Muhammad Nawaz son of Rustam Ali and Muhammad Iqbal son of Said who had also sustained fire arm injuries in this occurrence belied the version of the complainant during the investigation and they also sworn their affidavits to the I.O. alleging therein that only Maqsood Anwar alias Goga P.O. who was armed with 222 bore rifle was present and he fired which resulted into the injuries to the deceased and injured PWs and to them. They also supported the non involvement of me and my co-accused in this occurrence being not present at the spot at the time of occurrence. During investigation I and my co-accused facing trial in this case made an offer to the complainant party to take grand oath of on Holy Quran at Khana-Kaba about our innocence and non involvement in this occurrence and we also offered to bear all the expenses for going to Saudi Arabia in this connection but the complainant Refused to adhere to our offer.”
19. Taj appellant almost reiterated the contents of the statement of his co-convict/appellant, namely, Maqbool Anwar However, the appellants neither appeared as their own witnesses under Section 340 (2), Cr.P.C. nor produced any witness in defence.
20. Learned counsel for the appellant assailed the impugned convictions and sentences of the appellant and submitted that the prosecution has not been able to prove its case and for that matter, the impugned judgment was erroneous and out-come of misreading and mis-appreciation of evidence. He argued that the tale adduced by the eye witnesses was totally unnatural and destitute of the quality of attracting evidence. He critically referred to the statement of PW.2 which revealed that he was fired at by the appellant, namely, Taj hitting on his chest but no crime empty of pistol was recovered from the crime scene or from the appellant during the investigation; that all the accused were found innocent by the investigating agency and thus, private complaint was filed with improvements and fill in the lacunae in the prosecution’s case; that co-accused of the appellant, including Muhammad Akram, Muhammad Ashraf and Muhammad Asghar were acquitted on the same set of evidence and the appellant was to be treated alike. Concluding his arguments, learned counsel submitted that there was no pre-concert or pre-meditation, thus, the learned trial Court wrongly concluded that Section 34, PPC was attracted in this case.
21. Learned Deputy Prosecutor General assisted by the learned counsel for the complainant, however, supported the impugned judgment of the Court below and submitted that the occurrence had taken place in the broad daylight; that the parties were known to each other and there was no question of mistaken identity; that the appellant along with his co-accused was directly nominated in the FIR. According to them, medical evidence supports the prosecution version and mere declaration of innocence coupled with no recovery of the empty/weapon from the appellant was not sufficient to set aside the conviction and his sentence. They also maintained that there was a motive for the occurrence. According to the learned counsel, the punishment awarded to the appellant was not proper and prayed for enhancement of the sentence to normal penalty of death, because according to the learned counsel no mitigation was available to the appellant.
22. I have heard the rival arguments of both the learned counsel for the parties and learned Deputy Prosecutor General.
23. The occurrence in this case took place on 05.11.2004 at 4.30 p.m within the area of Chak No. 7/5-L, Sahiwal. The record divulged that the occurrence took place in front of the house of the complainant party.
The motive behind the occurrence was that one Bashir Muslim Sheikh unjustifiably demanded three hundred rupees from the complainant who was reprimanded, however, the complainant came to his house. Then all the accused nominated in the FIR/private complaint emerged at the crime scene while armed with their respective weapons and caused injuries to the deceased/injured as detailed in the private complaint. In addition to that as Ghulam Nabi and Muhammad Hussain father of the complainant was candidate of the Lumbardar of the village, thus, the accused nourished a grudge against them.
At this stage, it may also be mentioned that one of the appellant, namely, Maqbool Anwar expired during the pendency of this appeal, not pressed to his extent and, thus, the appeal stands abated.
Admittedly, the appellant was not attributed any injury to the deceased. The only allegation against the appellant was that of causing firearm injury to Abdul Sattar (PW.2) The appellant was armed with pistol, however, no empty was recovered from the crime scene during the spot inspection by the Investigating Officer who declared all the accused, except Maqsood Anwar, being innocent. His investigation was confirmed/verified by the DSP as well as by the SSP and the investigating agency concluded that the burst made by Maqsood Anwar caused injuries to the deceased as well as all the injured. At trial, Ghulam Rasool, Ghulam Nabi Iqbal, Nawaz son of Rustam, Nawaz son of Idrees PWs were not produced. They all were statedly injured, thus, necessary inference must be drawn against the prosecution that had they been appeared at trial, they would not have supported the prosecution case.
24. The learned trial Court concluded the trial with the observations that the appellant was guilty for committing Qatl-e-Amd of Muhammad Ismail, deceased on the basis of vicarious liability. The principle of joint liability laid down by Section 34, PPC is dependent on existence of common intention energizing the accused to commit a criminal act in furtherance of such intention but an accused not aware of the intention of his companions to commit murder though sharing intention to commit another offence in their company, cannot be saddled with the liability of the murder. However, any intention within the meaning of Section 34, PPC hints at pre-arranged plan and, therefore, the application thereof, requires proof to the effect that the criminal act was done pursuant to pre-arranged plan. In a number of cases, where the accused have no intention to commit murder, he was exonerated from the charges. Reference in this regard may usefully be made to the case. “Ghulam Qadir versus The State (PLD 1960 SC Pak) 254). In the case “Hassan versus The State” (1969 SCMR 454), accused persons were charged under Sections 148,302,149,307,149, PPC. On conclusion of the trial one appellant’s son, was convicted under Section 302, PPC and sentenced to death for his individual act, however, the appellant along with another son was convicted under Section 326 read with Section 34 of Pakistan Penal Code. On appeal, the apex Court held that in order to support a conviction under that section mere presence of the accused at the place of occurrence would not be sufficient and there must have been proof to some overt act done in furtherance of the common intention on the part of each accused and since the appellant went to the place of occurrence empty handed, therefore, there was no evidence that he had assaulted any body, therefore, he was not liable for the offence. In the circumstances of the instant case, I find that so far as the offence of Qatl-e-Amd is concerned no evidence of preconcert in my view was available on record and the prosecution produced no evidence that the appellant was aware of the intention of his co-accused, namely, Maqsood Anwar who fired at the deceased and killed him.
25. It may also be noted here that none of the injured witnesses was examined during trial and the co-accused of the appellant, Muhammad Akram, Muhammad Asraf and Muhammad Asghar were acquitted on the same set of evidence. It is settled law that if majority of the accused nominated in a case is acquitted on account of false implication by the eye witnesses, then, allegations qua remaining accused on the basis of same set of evidence cannot be sustained without strong/independent corroboration. In this context, reliance can be placed on “Iftikhar Hussain and another v. State” (PLJ 2004 SC 552) and “Sarfraz alias Sappi and 2 others v. The State” (2000 SCMR 1758). Similar view was also reiterated in the subsequent judgment of the Hon’ble Supreme Court of Pakistan reported as “Akhtar Ali and others v. The State” (2008 SCMR-6).
26. It may also be mentioned that the Investigating Officer of this case appeared as CW-5 and admitted that Nawaz son of Rustam and Iqbal son of Nawaz PWs joined the investigation and described a different mode of the occurrence. The complainant negated their version and both the witnesses negated the version of the prosecution. The investigating agency further concluded that it was only Maqsood Anwar’s burst which caused death of Muhammad Ismail and injured others, thus, Sections 148, 149 PPC were deleted during the investigation.
In the instant case, the complainant party has shown some enmity of the accused party for contesting the seat on account of forthcoming selection of village head man and as eye witnesses were closely related to the deceased fall within the domain of interested witnesses and for the purpose of recording conviction in the offences involving capital punishment, rule of prudence and caution demands that there should be independent corroboration to the prosecution case but I have individually thoroughly scanned the entire record and have analytically observed all the attending circumstances and it was obvious that no independent corroboration in the form of circumstantial evidence was forthcoming in support of ocular testimony of the interested witnesses, rather, it was a case where circumstantial evidence did not support the prosecution version, as none of the injured witness was examined during trial, no recovery was effected from the appellant and others, coupled with their declaration of innocence consecutively by the investigating agency, DSP and SSP, coupled with the acquittal of his co-accused, thus, in the wake of above discussion and in view of the submissions made by the learned counsel for the appellant, I have no hesitation to hold that conviction of the appellant is not warranted by law and is result of erroneous interpretation of the facts and circumstances of the case.
27. Consequently, I accept Criminal Appeal No. 949 of 2011, set aside the convictions and sentences of the appellant. He is on bail. His sureties are discharged from their liabilities Resultantly, the Criminal Revision No. 63 of 2012 filed by the complainant for enhancement of sentence of the appellant as well as P.S.L.A No. 13 of 2012 against acquittal of Muhammad Akram, Muhammad Ashraf and Muhammad Asghar is dismissed.
(A.A.K.) Appeal accepted
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