PLJ 2024 Cr.C. (Note) 281
[Lahore High Court, Multan Bench]
Present: Sadaqat Ali Khan, J.
DUR MUHAMMAD--Appellant
versus
STATE etc.--Respondents
Crl. As. Nos. 343, 344, 427 of 2016, heard on 5.9.2024.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302/324/109/148 & 149--Qatl-i-Amd--Injured PW--Chance witness--Motive--Delay in FIR--Delay in recording statement of PW--Benefit of doubt--Acquittal of--MLRs of deceased and injured/PW-3 show that they were brought in hospital through police but neither they disclosed names of accused nor made statements for registration of FIR--MLRs also do not show that PW1/complainant and Qaisar Chirag/PW-2 were with injured PWs in hospital to establish their presence--FIR was lodged with unexplained delay of 2-days--PW-3, his statement was recorded with unexplained delay of 2-months and 6-days which is fatal to prosecution--Appellants have been found not involved in occurrence during investigation--Instant criminal appeals are accepted--They are acquitted of charges. [Para 6, 7, 9 & 14] A, B, C, E, I
2018 SCMR 506; 2018 SCMR 326 ref.
Injured PW--
----Mere injuries on person of an injured would not stamp him truthful witness. [Para 8] D
2011 SCMR 323 ref.
Chance Witness--
----Presence of PW-1/complainant and PW-2 at relevant time is not free from doubt, rather they being chance witnesses have failed to establish their presence at time of occurrence at place of occurrence. [Para 10] F
2014 SCMR 1698; 2017 SCMR 564 ref.
Motive--
----Motive of occurrence is previous murder enmity between parties which is double edged weapon. [Para 11] G
2017 SCMR 1672; 2011 SCMR 646; 2009 SCMR 916 ref.
Benefit of Doubt--
----Forgiving 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 13] H
M/s. James Joseph, Haider Ali Haq and Ch. Abdul Hafeez, Advocates with Appellants i.e. Dur Muhammad, Mazhar and ljaz (on bail) for Appellants.
Mr. Waheed Rafique, DDPP for State.
M/s. Khawaja Qaisar Butt and Ch. Imran Saqi, Advocates for Complainant.
Date of hearing: 5.9.2024.
Judgment
This single judgment shall dispose of above captioned three separate criminal appeals filed by the appellants (Dur Muhammad, Mazhar and Ijaz), who along with their co-accused i.e. Alam Sher, Riaz and Atta Muhammad (since acquitted) have been tried by the trial Court in private complaint under Sections 302, 324, 109, 148 and 149, PPC arising out of case FIR No. 68 dated 03.03.2012 Police Station Shah Kot, Tehsil Chichawatni, District Sahiwal, and were convicted and sentenced vide judgement dated 27.04.2016 as under:-
Ijaz (appellant)
Under Section 302(b), PPC Sentenced to undergo imprisonment for life as Tazir for committing Qatl-i-Amd of Abdul Razzaq (deceased) with compensation of Rs. 2,00,000/- payable to the legal heirs of the deceased under Section 544-A, Cr.P.C. and in default whereof to further undergo simple imprisonment for 6-months.
Dur Muhammad and Mazhar (appellants)
Under Section 324, PPC Sentenced to undergo imprisonment for 5 years
R.I. each for attempting to commit Qatl-i-Amd of Manzoor Ahmad (Injured PW) with fine Rs. 50,000/- each and in default whereof to further undergo simple imprisonment for 3-months each. They were also directed to pay compensation of Rs. 50,000/- each to the injured under Section 544-A, Cr.P.C. and in default whereof to further undergo simple imprisonment for 3-months each.
Benefit of Section 382-B, Cr.P.C. was also extended to both the appellants.
2. Heard. Record perused.
3. Abdul Razzaq (died on 20.03.2012) and his uncle Manzoor Ahmad PW-3 sustained firearm injuries during the occurrence took place on the passage on 01.03.2012 at 7:30 am. Whereafter FIR was lodged on 03.03.2012 at 7:10 a.m. on the statement of Muhammad Azhar PW-1 (cousin of the deceased), who stated in his statement before the trial Court as under:
“On 01.03.2012, at 7:30 am, I was going to school Girls Higher secondary school situated in Chak No. 26/14-L on motorcycle. My uncle Manzoor Ahmad and my cousin abdul Razzaq were ahead of me about one acre on motorcycle. When I reached near Chak No. 28/14.L from behind on two motorcycles accused namely Alam Sher, Mazhar Iqbal and Dur Muhammad were on one motorcyel and Alam Sher was driving and his brother ljaz was on rare seat. The accused Mazhar Iqbal was armed with pistol .30 bore, Dur Muhammad armed with pistol .30 bore and ljaz Ahmad armed with pistol .30 bore. All the accused crossed me with fast speed. The accused stopped the motorcycle my uncle Manzoor at Chak No. 27 Mor area of chak No. 26/14-L. Riaz Ahmad and Alam Sher accused raised lalakara that they shall take the revenge of murder of Ghulam Kazim deceased and Manzoor and Abdul Razzaq be done to death. During this period, Qaisarchirag and Foji Ramzan PWs were also come there. Mazhar Iqbal accused made a fire shot which hit to Manzoor on his right side of back. Second fire shot was made by accused Dur Muhammad which hit on the right side of back of belly of Manzoor Ahmad injured. Manzoor Ahmad fell down by receiving the fire shot. Then ljaz accused made two fire shots which hit to Abdul Razza on his back left side. He also fell down. I along with PWs raised hue and cry, accused fled away from the place of occurrence by boarding on motorcycle towards Iqbal Nagar by making ariel firing. informed the police i.e. Ahmad Hassan S.I. at police station and he reached at the spot. Ahmad Hassan S.I recorded my statement first of all at spot and I also signed the same. Then he recorded the statements of Abdul Razzaq and Manzoor Ahmad. He prepared the injury statement of the injured and he sent the injured to hospital Bashir Ahmad constable accompanied us to hospital. The doctor given the first aid to the injured and then they were shifted to Sahiwal hospital. On 03.03.2012, I was coming back from Sahiwal and when I reached at Adda 90 Mor, Ahmad Hassan S.I met me and I inquired him whether he has lodged my case and also asked him to provide FIR number. He replied that he has gone to causal leave due to that reason he has not registered the case. The application Exh.PA was submitted by me to Ahmad Hassan S.I on 01.03.2012 and Ahmad Hassan mentioned the date 3.03.2012 malafidely. Ahmad Hassan S.I has recorded the statement of injured under Section 161, Cr.P.C but he has misplaced the same. I have filed an application before the learned Addl. District and Sessions Judge, Chichawatni, and case was registered against Ahmad Hassan S.I copy of FIR is Mark A (objected by learned counsel for defense). Ahmad Hassan S.I has conducted the investigation malafidely just to favour to the accused.”
4. Qaisar Chirag PW-2 and Manzoor Ahmad PW-3 while appearing before the trial Court have reiterated the same story.
5. Abdul Razzaq (deceased) after the occurrence on 01.03.2012 remained alive and died on 20.03.2012 but his statement was not recorded during this period.
6. MLRs of Abdul Razzaq (deceased) and Manzoor Ahmad injured PW-3 show that they were brought in the hospital through police on 01.03.2012 at 9:40 a.m. but neither they disclosed the names of the accused nor made statements for registration of the FIR. MLRs also do not show that Muhammad Azhar PW-1/complainant and Qaisar Chirag PW-2 were with the injured PWs in the hospital to establish their presence. FIR was not lodged on 01.03.2012, rather was lodged on 03.03.2012 with unexplained delay of 2-days. In these circumstances, possibility of consultation and deliberation by cooking up a story, preparing eye-witnesses, involving the appellants and their co-accused (since acquitted) cannot be ruled out. In such eventuality, no sanctity could be attached to FIR and that important limb of prosecution, which had to lay foundation of the case, had rather smashed the same. 2018 SCMR 506 “G. M. Niaz vs. The State” and 2018 SCMR 326 “Zafar vs. The State and others”.
7. It is not the case of the prosecution that Manzoor Ahmad PW-3 after occurrence remained unconscious but his statement was recorded on 07.05.2012 with unexplained delay of 2-months and 6-days which is fatal to the prosecution.
8. The argument of learned counsel for the complainant that firearm injuries on the person of Manzoor Ahmad PW-3 establish his presence at the time of occurrence at the place of occurrence, whose evidence is sufficient for the conviction of the appellants, has no substance as law is settled by now that mere injuries on the person of an injured would not stamp him truthful witness, 2011 SCMR 323 “Amin Ali and another vs. The State”.
9. Dur Muhammad and Mazhar (appellants) against the injuries of Manzoor Ahmad injured PW-3 have been found not involved in the occurrence during the investigation conducted by Riaz Ali Minhas CW-5 and nothing was recovered from them.
10. Considering the peculiar facts and circumstances of this case, (prese presence of Muhammad Azhar PW-1/complainant and Qaisar Chirag PW-2 at relevant time is not free from doubt, rather 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. Motive of the occurrence is previous murder enmity between the parties which is double edged weapon in criminal case as it can cut both the ways. 2017 SCMR 1672 “Tariq vs. The State”, 2011 SCMR 646 “Tahir Khan vs. The State” and 2009 SCMR 916 “Ghulam Mustafa vs. The State”.
12. Recovery of pistol on pointing out of the appellant (Ijaz) in absence of crime empties is inconsequential.
13. In view of the above discussed circumstances, I entertain serious doubt in my mind 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.
14. For the foregoing reasons, instant criminal appeals filed by the appellants (Dur Muhammad, Mazhar and Ijaz) are accepted, their convictions and sentences awarded by the trial Court through the impugned judgment are hereby set-aside. They are acquitted of the charges. They are present on bail, their sureties stand discharged.
(K.Q.B.) Appeals accepted
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