PLJ 2025 Cr.C. 350
[Lahore High Court, Lahore]
Present: Miss Aalia Neelum, C.J.
ZAFAR IQBAL alias ILAM DIN etc.--Appellants
versus
STATE, etc.--Respondents
Crl. A. Nos. 27878-J, 27874 & Crl. Rev. No. 27876 of 2022,
decided on 20.2.2025.
Pakistan Penal Code, 1860 (XLV of 1860)--
شک کا فائدہ-- دستاویزی ثبوت-- زبانی گواہی کی تردید-- یہ حقیقت کہ ملزمان بشمول اپیل کنندہ نے مدعی پی ڈبلیو-1 کے اہل خانہ کو مارا پیٹا، اور پی ڈبلیو-2 کو ثابت نہیں کیا گیا-- زخمی گواہوں کو عدالت میں پیش نہیں کیا گیا، اور استغاثہ ان کی چوٹوں کے بارے میں کوئی ثبوت فراہم نہیں کر سکا، جس سے ظاہر ہوتا ہے کہ استغاثہ کی کہانی جھوٹی ہے-- ریکارڈ پر موجود شواہد کی جانچ پڑتال کرنے کے بعد، عدالت اس بات پر مطمئن نہیں ہے کہ استغاثہ نے اپنا مقدمہ شک و شبہ سے بالاتر ہو کر ثابت کر دیا ہے-- بہر صورت، اپیل کنندہ شک کے فائدے کا حقدار ہے-- جہاں تک 30.12.2020 کو کوٹ انصاریان دوست پورہ میں مٹی سے خون آلود اینٹ کا ٹکڑا برآمد ہونے کا تعلق ہے، بہر حال، استغاثہ پر یہ ثابت کرنے کی ذمہ داری عائد ہوتی ہے کہ اس نے اپنا مقدمہ شک و شبہ سے بالاتر ہو کر ثابت کر دیا ہے-- برآمد شدہ خون آلود اینٹ کے ٹکڑے کی پیشی ضروری ہے تاکہ برآمدگی کے ساتھ ماہر کی رپورٹ کی تصدیق کی جا سکے-- ریکارڈ پر ایسا کوئی ثبوت موجود نہیں ہے کہ اینٹ کو معزز ٹرائل کورٹ کے سامنے پیش کیا گیا تھا-- ڈی پی جی ریکارڈ پر کوئی ایسا ثبوت نہیں دکھا سکتا کہ خون آلود اینٹ کا ٹکڑا عدالت میں پیش کیا گیا تھا، جو اینٹ کے ٹکڑے کے وجود کے بارے میں سنگین نقص اور شک پیدا کرتا ہے-- استغاثہ کے شواہد کی چھان بین، جائزہ اور تجزیہ کرنے سے جو ناگزیر نتیجہ اخذ ہوتا ہے وہ یہ ہے کہ استغاثہ اپنا مقدمہ شک و شبہ سے بالاتر ہو کر ثابت کرنے میں ناکام رہا ہے۔
----S. 302(b)--Qatl-e-amd--Conviction and sentence--Challenge to--Benefit of doubt--Documentary evidence--Contradicted oral testimony--The fact that accused persons, including appellant, gave a beating to family members of PW-1 complainant, and PW-2 has not been proved--The injured witnesses were not produced in Court, and prosecution could not provide evidence regarding their injuries, which shows that prosecution’s story is false--Having scrutinized evidence on record, Court is not satisfied that prosecution has proved its case beyond reasonable doubt--In any event, appellant is entitled to benefit of doubt--Insofar as alleged recovery of a piece of blood-stained brick from soiling at Kot Ansarian Dost Pura on 30.12.2020 is concerned, in any case, burden lies upon prosecution to prove its case beyond reasonable doubt--Production of recovered piece of blood-stained brick is necessary to corroborate expert report with recovery--There is no evidence on record that brick was produced before learned trial Court--The DPG cannot show any evidence on record that piece of blood-stained brick was produced in Court, which creates serious infirmity and doubt about existence of piece of brick--The irresistible conclusion that emerges from scanning, perusing, and dissecting prosecution evidence is that prosecution has failed to prove its case beyond reasonable doubt. [P. 358] A & B
Mr. Muhammad Usman Bhatti, Advocate for Appellant.
Mr. Muhammad Akhlaq, Deputy Prosecutor General for State.
Malik Muhammad Riaz Awan, Advocate for Complainant.
Date of hearing: 20.2.2025.
Judgment
Zafar Iqbal alias Ilam Din son of Munchi Ghulam Muhammad, Caste Ansari, resident of Dost Pura, District Kasur, the appellant was involved in case F.I.R. No. 1030 of 2020, dated 08.12.2020, registered under Sections 302, 449, 148, 149, P.P.C., at Police Station, Saddar, District Kasur and was tried by the learned Additional Sessions Judge, Kasur. The trial Court seized with the matter in terms of the judgment dated 31.03.2022 and convicted the appellant under Section 302(b), PPC and sentenced him to undergo rigorous imprisonment for 14 years with the direction to pay Rs. 3,00,000/- as compensation to the legal heirs of the deceased and in case of default in payment thereof, he would further undergo six months S.I. The compensation amount would be recoverable as arrears of land revenue. The benefit of Section 382-B, Cr.P.C. was also extended in favour of the appellant.
2. Feeling aggrieved by the judgment of the trial Court, Zafar Iqbal alias Ilam Din, the appellant has assailed his conviction by filing Crl. Appeal No. 27878-J of 2022, It is pertinent to mention here that the complainant also filed Crl. Rev. No. 27876 of 2022, qua enhancement of sentence awarded to the appellant, Zafar Iqbal alias Ilam Din and Crl. Appeal No. 27874 of 2022 against the acquittal of Respondents No. 2 to 5. All the matters arising out of the same judgment of the trial Court are being disposed of through consolidated judgment.
3. The prosecution story as alleged in the F.I.R (Ex. PE) lodged on the application (Ex.PA) of Muhammad Rafique (PW-1)-the complainant is that on 02.12.2020 at 12:00 p.m. (Noon), the accused, Amanat Ali etc were beating complainant’s minor son, Shahzad alias Masmar with clubs and sotas, and in order to save his life, Shahzad alias Masmar ran into his house. The accused persons also trespassed the house of the complainant. Thereafter, the accused, Iqbal alias Yahya raised lalkara that complainant’s son had plucked a sugarcane from their fields, so he would not be spared alive, whereupon, the complainant’s wife, Mst. Seema Bibi came forward to rescue her son but she was also handled in a bad manner. In the meantime, sister’s son of complainant, Bilal, aged abut 32/33 years, (since dead) came over there and tried to top the scuffle, whereupon the accused-Zafar Iqbal alias Ilam Din gave a brick blow on the left side of head of Bilal (since dead), who fell down. After that, the accused-Javed started inflicting “Dang” blows to Bilal (since dead) in the said condition and when Mst.Ruqiya Bibi and Mst. Seema Bibi came forward to save Bilal (since dead), the accused persons, Amanat and Liaqat Ali alias Ali gave “Dang” blows to both the ladies. On hue and cry, Muhammad Ashraf, Muhammad Nawaz and Muhammad Akram along with others, arrived over there and rescued the victims from the accused persons. In the meanwhile, someone called police through 15, whereupon local police and ambulance 1122 arrived at the spot, and shifted the victims to D.H.Q Hospital, Kasur. Due to serious condition, Bilal (since dead) was referred to Lahore General Hospital, Lahore, who succumbed to the injuries on 08.12.2020 at about 02:00 a.m.
4. After registration of the case, the investigation of this case was conducted by Muhammad Zafar Ullah, S.I. (PW-7) and Ghulam Muhammad, S.I (PW-9), who, having found the appellant guilty, prepared a challan under Section 173, Cr.P.C. and sent the same to the Court of competent jurisdiction while placing the names of all accused persons in Column No. 3 of the challan. On 02.08.2021, the trial Court formally charge-sheeted the appellant, to which he pleaded not guilty and claimed trial. In support of its version, the prosecution produced as many as nine (09) witnesses.
5. After the closure of prosecution evidence, the appellant was examined under Section 342 of, Cr.P.C., wherein neither he opted to appear as his own witness in terms of Section 340 (2), Cr.P.C. nor to produce any evidence in his defence. In response to a particular question that why this case was against him and why the PWs had deposed against him, the appellant-Zafar Iqbal alias Ilam Din, made the following depositions:
“I am innocent. Having no connection with the alleged occurrence, I along with my other close family members including my real brother, his son, one my first cousin and one close relative, have been falsely implicated in this case by the complainant on the account of some previous grudge. The complainant has done this just to extort money by blackmailing. As matter of record, it is stated that deceased died while working as mason at Rahmey Wala Khoo accidently.”
6. After recording evidence and evaluating the evidence available on record in the light of the arguments advanced by both sides, the trial Court found the prosecution version proved beyond any shadow of reasonable doubt, which resulted in the appellant’s conviction in the afore-stated terms.
7. I have heard the arguments advanced by the learned counsel for the parties and have minutely perused the record on the file.
8. In the case, Muhammad Rafique (PW-1), the maternal uncle of the deceased Bilal, got lodged the FIR at 06:30 a.m. on 08.12.2020. Per the FIR, the alleged incident occurred on 02.12.2020 at 12:00 noon in the village of Dost Pura Tehsil and District Kasur, which falls within the territorial jurisdiction of the police station Saddar Kasur. The incident was reported to the police with 8 (eight) days delay. It is admitted by Muhammad Rafique (PW-1)-complainant, during cross-examination that:
“---I have six sons and two daughters—The age of my eldest son Shafiq might be 30/32 years. My youngest child is the age of about 9/10-months. My three sons are above the age of 18 years---At the time of occurrence, only female inmates were present in my house---PW Ashraf is father of deceased Bilal. Akram PW is real brother of deceased Bilal. PW Roqiyya is real sister of deceased Bilal---”.
Muhammad Ashraf (PW-2)-eye-witness and father of deceased Bilal, deposed during cross-examination that:
“---It is correct that we did not move application for registration of FIR from the day of occurrence till the death of deceased Bilal. Volunteers that we remained busy in the treatment of the victim---Police also accompanied us from place of occurrence to DHQ hospital, Kasur and then to Lahore General Hospital, Lahore. Police was well conversant with the whole occurrence during the said period---It took about one hour and forty five minutes in shifting the victim to Lahore General Hospital, Lahore starting from our journey from the place of occurrence. I did not move application during the said period to the police for registration of FIR, volunteers that our primary concern was to provide medical treatment to the victim---”
Muhammad Rafique (PW-1)-complainant deposed during examination-in-chief that:
“---Someone called police and the ambulance. Police put injured Bilal in the ambulance and took him to DHQ Hospital, Kasur. Due to precarious condition, injured Bilal was referred to Lahore General Hospital, Lahore. Bilal injured remain admitted to General Hospital for six days and on the sixth day, he succumbed to the injuries in the hospital. The deceased was brought to DHQ Hospital, Kasur. I moved an application Ex.PA to the Police Station Saddar, Kasur for registration of FIR---”
During cross-examination, Muhammad Rafique (PW-1)-complainant, deposed that:
“---I do not know who called police on 15-emergency number. 4/5 policemen arrived at the place of occurrence. I did not move application for registration of FIR to the said policemen at the place of occurrence. Volunteers that they verbally inquired from me and took notes. I did not move application to the police for registration of FIR from the day of occurrence till death of the victim. Volunteers that we remained busy in the treatment of the victim in the hospital. It is correct that no such application during the above said period was moved to the police for the registration of FIR from my sons or any other relative--”
Muhammad Rafique (PW-1)-the complainant admitted in the complaint (Ex.PA) that the policemen arrived at the place of occurrence. Officials of the rescue of 1122 shifted Bilal to the hospital in an injured condition, rather than the policemen who came to the scene, inquired into the incident verbally, and took notices. Such notices were not made part of the record. Neither did the Muhammad Zafarullah S.I. (PW-7)-Investigating Officer collect the records of 15-call and rescue-1122 during the investigation, nor did he associate them in the investigation so that it could be revealed what statement Muhammad Rafiq (PW-1)-the complainant had given on the place of occurrence or what report the police had made on the 15-call or rescue-1122. Muhammad Zafarullah S.I. (PW-7)-Investigating Officer deposed during cross-examination that:
“---I did not record the statement under Section 161, Cr.P.C. of the doctor who treated the victim. During my investigation I asked from the doctors, whether the victim made any statement to them but they told that the victim remain unconscious during the whole time till his death---I have not recorded the said statement of the doctor. The police file does not bear any such statement of the doctor. I did not obtain the operation notes from the doctor---”
Muhammad Zafarullah S.I. (PW-7) Investigating Officer deposed during cross-examination that:
“---It is correct that we received information about the occurrence on 02.12.2020. Volunteers that no one from the complainant approached police for initiating proceedings at the police station. Police also visited place of occurrence on 02.12.2020. We ourselves did nto initiae proceedings about the occurrence as the same were to be initiated on the application of the complainant---I did not myself visit place of occurrence on 02.12.2020 but some other police officer, therefore, I can not tell whether he secured/cordoned the scene of occurrence or not. I did not record statement of the said police officer during my investigation---”
The first information report was lodged with considerable delay, for which the prosecution’s explanation is not plausible. The witnesses’ conduct in keeping quiet and not reporting the matter immediately is most unnatural when police were with them soon after the incident and remained with them till the death of Bilal at General Hospital, Lahore. Muhammad Rafique (PW-1)-complainant deposed during cross-examination that:
“---I, Ashraf, Akram, Irfan and other family members also came to DHQ Hospital, Kasur when dead body of Bilal was shifted there from General Hospital, Lahore. Dead body was shifted on ambulance. After arrival of dead body at DHQ Hospital, Kasur, I went to the police station for registration of FIR---It took about one hour in registration of FIR after leaving the dead body at DHQ Hospital, Kasur---”
He (PW-1) denied the suggestion that police had accompanied them while shifting the dead body from General Hospital Lahore. Muhammad Rafique (PW-1)-complainant deposed during cross-examination that:
“---It is incorrect to suggest that police did not accompany us while shifting the dead body to DHQ Hospital, Kasur from General Hospital Lahore because the FIR was got registered after shifting the dead body to DHQ Hospital, Kasur-”
Contrary to the deposition of Muhammad Rafique (PW-1)-complainant, Muhammad Ashraf (PW-2)-eye-witness, deposed during cross-examination that:
“---I, Rafiq, Akram along with police shifted deceased Bilal from General hospital Lahore to DHQ Hospital, Kasur. Rafiq went to the police station for registration of FIR, after we brought dead body to DHQ Hospital, Kasur---”
Muhammad Zafarullah S.I. (PW-7)-Investigating Officer deposed during examination-in-chief that:
“----On 08.12.2020, I was posted at police station Saddar, Kasur as Sub-Inspector. I along with Ghulam Nabi 306/C and Ghulam Qadir constable were on patrolling duty in the area. I received FIR and complainant of this case sent by Shabbir Hussain Naib Moharrar, for investigation. I was informed that dead body of one Bilal was lying in Lahore General Hospital, Lahore. I along with other police officials reached at Lahore General Hospital, Lahore. I prepared inquest report Ex.PH, application for postmortem Ex.PJ, injuries statement Ex.PK---”
Muhammad Zafarullah S.I. (PW-7)-Investigating Officer deposed during cross-examination that:
“----I received copy of FIR at 6:50 am. It takes about 45 minutes to travel from Kasur to Lahore General Hospital---”
The deposition of Muhammad Zafarullah (PW-7) conflicts with documentary evidence. Muhammad Zafarullah (PW-7)-the Investigating Officer deposed that after receiving the copy of the FIR (Ex. PE) at 06:50 a.m. proceeded to General Hospital Lahore, whereas the death certificate available on Page No. 135 of the paper book revealed that the dead body was received by him (PW-7) and his mobile number 0301-4003014 and CNIC No. 35201-3817709-3 was also written under his signatures. Ghulam Nabi 306/C (PW-8), who escorted the dead body of Bilal, deposed during examination-in-chief that:
“---On 08.12.2020, I was posted at police station Saddar, Kasur. Zafar Ullah, SI/IO of the case handed over to me dead body of deceased Bilal. I along with Ashraf s/o Shah Muhammad and Nawaz s/o Suleman escorted the dead body from General Hospital, Lahore to DHQ Hospital, Kasur for postmortem---”
Ghulam Nabi 306/C (PW-8) deposed during cross-examination that:
“---I received phone call at 02:00 am, on 08.12.2020 and arrived at Lahore General Hospital, Lahore at about 03:30 am---We arrived at DHQ Hospital, Kasur at 05:00 am, with the dead body---”
Muhammad Zafarullah S.I. (PW-7)-Investigating Officer deposed during cross-examination that:
“----As per column No. 3 of inquest report Ex.PH, the time of gaining knowledge about occurrence is 02:00 am. I arrived at Lahore General hospital, Lahore at about 07:30 am. It is incorrect to suggest that I arrived at Lahore General hospital, Lahore at about 03:00 am. It is incorrect to suggest that I gained knowledge of death of the deceased at 02:00 am, where-after I remained with the complainant party for the purpose of deliberations and consultations to involve the innocent persons---”
9. The documentary evidence contradicted the oral testimony of Muhammad Zafarullah S.I. (PW-7)-the Investigating Officer, and Muhammad Rafique (PW-1)-the complainant, regarding when FIR (Ex. PE) was chalked out. It is in the deposition of Muhammad Zafarullah S.I. (PW-7)-the Investigating Officer, that he received FIR (Ex. PE) at about 6.50 a.m. and thereafter, he proceeded to General Hospital Lahore and prepared the inquest report (Ex. PH). In column No. 3 of the inquest report (Ex. PH), the date and time of receiving death information is mentioned as 2:00 a.m. on 08.12.2020. Had the inquest report (Ex. PH) been prepared after registration of FIR (Ex. PE) and the Investigating Officer had received its copy, then he would have mentioned the F.I.R. number and its detail in the inquest report at the time of preparing the inquest report, the Investigating Officer was not in a position to mention the number of F.I.R. which was lodged on 08.12.2020 at 6:30 a.m. and same is the position of postmortem report (Exh.PG) wherein the time of receiving of the dead body was mentioned 05:00 a.m. and police documents were received at 11:40 a.m on 08.12.2020. Similarly, the time, i.e., 11:40 a.m. on 08.12.2020, is mentioned on the application for postmortem examination of the dead body of Muhammad Bilal (Ex. PJ). Had he received the F.I.R., the Investigating Officer would have mentioned the particulars of F.I.R. on the face of the inquest report (Ex. PH). It appears that F.I.R. has been delayed. In the light of the entire prosecution evidence and circumstances, they influenced the Court’s mind that there had been some wrangling about the time of the case’s registration. This breeds serious doubts regarding the prosecution story’s genuineness, including the offenders’ names and eye-witnesses.
10. There is another aspect of the case, Muhammad Zafarullah S.I. (PW-7)-the Investigating Officer deposed during cross-examination that:
“----It is correct that accused Amanat and Zafar Iqbal are real brothers and accused Yahya is first cousin of them---”
Muhammad Rafique (PW-1)-the complainant deposed during cross-examination that:
“---Mudassar is younger brother of accused Yahya. It is incorrect to suggest that in the past, I inflicted head injury to said Mudassar with the hatchet. Amjad is real brother of accused Javed---Accused Yahya and Zafar Iqbal are first cousins inter-se. Accused Amanat and Zafar Iqbal are real brothers. Accused Ali is son of accused Amanat. Accused Javed is not a close relative of co-accused persons---”
It is admitted that the injured were not produced as witnesses during the trial. Muhammad Rafique (PW-1)-the complainant deposed during cross-examination that:
“---The injured females were medically examined but MLCs were not issued because there were no visible injuries on their persons. I have not produced any receipt of hospital as to medical examination of the said females to the police or in this Court---We did not get medical examination of my son Shahzad @ Masmar---”
Muhammad Ashraf (PW-2) deposed during cross-examination that:
“----We got medical examination of Seeman Bibi in the DHQ Hospital, Kasur. We did not get medical examination of my daughter Roqiya as she had young children at home and she got her treatment locally---”
The fact that the accused persons, including the appellant, gave a beating to the family members of Muhammad Rafique (PW-1)-the complainant, and Muhammad Ashraf (PW-2) has not been proved. The injured witnesses were not produced in Court, and the prosecution could not provide evidence regarding their injuries, which shows that the prosecution’s story is false. Having scrutinized the evidence on record, I am not satisfied that the prosecution has proved its case beyond reasonable doubt. In any event, the appellant is entitled to the benefit of the doubt.
11. Insofar as the alleged recovery of a piece of blood-stained brick from the soiling at Kot Ansarian Dost Pura on 30.12.2020 is concerned, in any case, the burden lies upon the prosecution to prove its case beyond the reasonable doubt. Production of the recovered piece of blood-stained brick is necessary to corroborate the expert report with the recovery. There is no evidence on record that the brick was produced before the learned trial Court. The learned DPG cannot show any evidence on record that the piece of blood-stained brick was produced in the Court, which creates serious infirmity and doubt about the existence of the piece of brick. The irresistible conclusion that emerges from scanning, perusing, and dissecting the prosecution evidence is that the prosecution has failed to prove its case beyond reasonable doubt.
12. Accordingly, Criminal Appeal No. 27878-J of 2022 is accepted. Conviction and sentence recorded by the learned trial Court vide judgment dated 31.03.2022 is set aside as a consequence whereof, Zafar Iqbal alias Ilam Din son of Munchi Ghulam Muhammad, appellant is ordered to be acquitted of the charge in case F.I.R. No. 1030 of 2020, dated 08.12.2020, offences under Sections 302, 449, 148, 149, P.P.C., registered at Police Station, Saddar, District Kasur is directed to be released forthwith, if not required in any criminal case.
13. So far as Criminal Revision No. 27876 of 2022, filed by the complainant, namely Muhammad Rafiq for enhancement of sentence awarded by the learned trial Court to Respondent No. 1 i.e. Zafar Iqbal alias Ilam Din is concerned, for the reasons afore-stated, the same is devoid of any legal force, which is accordingly dismissed.
14. So far as the appeal against Acquittal No. 27874 of 2022 seeking the conviction of Respondents Nos. 2 to 5 per law is concerned, I have noted that as the role of Respondents Nos. 2 to 5, i.e.(2) Amanat Ali son of Munchi Ghulam Muhammad, (3) Muhammad Javaid son of Muhammad Din, (4) Liaqat Ali alias Ali son of Amanat Ali, (5) Muhammad Iqbal alias Yahya son of Muhammad Yaqoob is concerned, there is no conflict or contradiction in the findings of the learned trial Court about the role of the Respondents No 2 to 5. For what has been discussed above in the light of prosecution and documentary evidence, the acquittal of Respondents No. 2 to 5 does not suffer from any illegality to call for this Court’s interference with the impugned judgment. I have also taken note of the settled principle of criminal jurisprudence, which states that unless it can be shown that the lower Court’s judgment is perverse or that it is completely illegal, No other conclusion can be drawn except the guilt of the accused or misreading or non-reading of evidence, resulting in a miscarriage of justice. Even otherwise, when a Court of competent jurisdiction acquits the accused persons, the double presumption of innocence is attached to his case. The acquittal order cannot be interfered with, whereby an accused earns double presumption of innocence as held in “Muhammad Mansha Kausar v. Muhammad Ashgar and others” (2003 SCMR 477). In this case, the prosecution has not been able to bring on record adequate incriminating evidence against Respondents No. 2 to 5, which connects them with the alleged crime. The learned trial Judge has advanced valid and plausible reasons for recording acquittal in favour of Respondents No. 2 to 5. The judgment of acquittal does not call for any interference. Consequently, I find no merit in this appeal bearing Criminal Appeal No. 27874 of 2022, which is hereby dismissed as being without merits.
(A.A.K.) Appeal accepted
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