PLJ 2025 Cr.C. 326
[Lahore High Court, Lahore]
Present: Miss Aalia Neelum, C.J.
ALI AKBAR, etc.--Appellants
versus
STATE etc.--Respondents
Crl. A. No. 31052 & Crl. Rev. No. 43674 of 2023, decided on 11.2.2025.
Pakistan Penal Code, 1860 (XLV of 1860)--
-دفعہ 302(ب)--قتلِ عمد--سزا اور جرم ثابت ہونا--چیلنج--برآمدگیِ ہتھیار--شک کا فائدہ-- رپورٹِ شعبہ فرانزک--ہتھیار پر انسانی خون کی موجودگی--کوئی ثبوت نہیں--برآمد شدہ خنجروں کا تجزیہ وقوعہ کے تینتالیس دن بعد 16.04.2020 کو کیا گیا--انسانی خون کا موازنہ "م" کے خون سے نہیں کیا گیا--خنجروں پر خون کی اصلیت کا تعین کرنا ممکن نہیں تھا، کیونکہ خون وقوعہ کے ایک ماہ بعد تحلیل ہو گیا تھا--یہ بات قرین قیاس نہیں کہ ملزمان خون آلودہ خنجر اپنے گھر میں محفوظ رکھتے تاکہ گرفتاری پر تفتیشی افسر کے سامنے پیش کر سکیں--ملزمان سے یہ توقع نہیں کی جا سکتی کہ وہ خون آلودہ خنجر (پی-1) اپنے گھر میں طویل عرصے تک رکھیں گے جب کہ وہ انہیں آسانی سے ٹھکانے لگا سکتے تھے--برآمدگیاں مشترکہ گھر سے ہوئیں--ان حالات میں برآمدگیاں اور مثبت رپورٹ کسی اہمیت کی حامل نہیں ہیں--استغاثہ اپنے مقدمے کو شک و شبہ سے بالاتر ہو کر ملزمان کے خلاف ثابت کرنے میں ناکام رہا ہے کیونکہ استغاثہ کے بیان میں بہت سے سقم موجود تھے--ٹرائل کورٹ کی جانب سے ریکارڈ کی گئی سزا اور جرم ثابت ہونا برقرار نہیں رکھا جا سکتا۔
----S. 302(b)--Qatl-e-amd--Conviction and sentence--Challenge to--Recovery of weapon--Benefit of doubt--Report of Forensic Agency--Presence of human blood on weapon--No evidence--The recovered daggers were analyzed on 16.04.2020, forty-three days after occurrence--Human blood was not compared with “M”’s blood--It was not possible to determine origin of blood on “daggers”, as blood disintegrated after one month of occurrence--It does not appeal to reason that accused might have kept blood-stained daggers with them in their house intact to produce them before Investigating Officer on their arrest--The accused cannot be expected to keep blood-stained daggers (P-1) in their house for a long period when they could have easily disposed of them--The recoveries were affected from joint house--In these circumstances, recoveries and positive report are not of any consequence--The prosecution had not been able to prove its case against appellants beyond any shadow of a doubt as there were many dents in prosecution story--The conviction and sentence trial Court recorded could not be sustained.
[Pp. 343 & 344] A, B, C & D
2017 PCr.LJ 1 and 2009 SCMR 230.
M/s. Muhammad Shahbaz Sharif and Malik Haris Aslam, Advocates for Appellants.
Mr. Muhammad Akhlaq, Deputy Prosecutor General for State.
Rana Bilal Ghaffar Khan, Advocate for Complainant.
Date of hearing: 11.2.2025.
Judgment
Ali Akbar son of Manzoor Ahmed, (2) Hafiz Muhammad Arshad son of Allah Ditta, (3) Amir Ali son of Bashir Ahmed and (4) Allah Ditta son of Malla, all Dhudhi by caste, residents of Chak Hota, Tehsil and District Pakpattan, the appellants, through this appeal have assailed their conviction and sentence recorded by the learned Additional Sessions Judge, Pakpattan vide judgment dated 31.03.2023 in a private complaint filed under Sections 302, 324, 337-D, 337-A(iii), 148, 149, PPC P.S. Kalyana, District Pakpattan titled “Muhammad Yousaf vs. Ali Akbar, etc.” arising out of case FIR No. 55/2020 dated 04.03.2020 registered under Sections 302, 324, 148, 149, PPC at P.S. Kalyana, District Pakpattan whereby the trial Court convicted the appellants as under:
Appellant No. 1-Ali Akbar was convicted under Section 302(b), PPC for committing ‘Qatl-i-Amd’ of Muhammad Ali-deceased and sentenced to imprisonment for life as Ta‘zir. The appellant was further directed to pay an amount of Rs. 4,00,000/- as compensation to the legal heirs of the deceased under Section 544-A, Cr.P.C. In case of default in payment thereof, to further undergo six months imprisonment.
Appellant No. 2-Hafiz Muhammad Arshad was convicted under Section 324, PPC and sentenced to undergo rigorous imprisonment for 07-years along with a fine of Rs. 3,00,000/-and, in case of default in payment thereof, to further undergo five months simple imprisonment.
Appellant No. 3-Amir Ali was convicted under Section 324, PPC and sentenced to rigorous imprisonment for 07 years along with a fine of Rs. 3,00,000/- and, in case of default in payment thereof, to five months imprisonment.
Appellant No. 4-Allah Ditta was convicted under Section 324, PPC and sentenced to rigorous imprisonment for 07 years along with a fine of Rs. 3,00,000/ -and, in case of default in payment thereof, five months of imprisonment.
The benefit of Section 382-B, Cr.P.C. was also extended in favour of the appellants.
2. Feeling aggrieved by the judgment of the trial Court, the appellants-Ali Akbar, Hafiz Muhammad Arshad, Amir Ali, and Allah Ditta, have assailed their conviction by filing instant Criminal Appeal No. 31052 of 2023, whereas the complainant, being dissatisfied with the impugned judgment dated 31.03.2023, preferred a Criminal Revision No. 43674 of 2023 for enhancement of sentence awarded to Respondents No. 1 to 4/appellants. As both matters arise from the same judgment, they are being disposed of through a single judgment.
3. The prosecution story, as narrated by Muhammad Yousaf (PW-1), in the private complaint (Ex. PA), is that the complainant’s son, Muhammad Ali ran a shop for the repair of motorcycles; on 04.03.2020, the complainant (PW-1) along with Haji Muhammad Yasin (given up PW), Muhammad Yar (given up PW) and Allah Rakha (PW-2), was gossiping while sitting at the house; at about 08:00 p.m., Hafiz Muhammad Arshad (the Appellant No. 2), called the complainant’s son from the house for repairing the motorcycle, whereupon, Muhammad Ali (the deceased) opened the shop; the complainant along with PWs Haji Muhammad Yasin, Muhammad Yar, and Allah Rakha also came at the shop of Muhammad Ali, where the electric bulb was lightening. Meanwhile, Ali Akbar (Appellant No. 1) armed with a dagger, Asghar, Muhammad Anwar, Manzoor Ahmad, Amir Ali (Appellant No. 3), Allah Ditta (Appellant No. 4), Jahangir alias Jangoo Shah with six unknown persons duly armed with daggers came there. Manzoor Ahmad (co-accused since acquitted) raised lalkara to teach a lesson to Muhammad Ali for steeling wood, whereupon, Ali Akbar (the Appellant No. 1) inflicted dagger blow on the left side of chest of Muhammad Ali; Asghar Ali inflicted dagger blow on the left side of rib of complainant’s son, Muhammad Ali; Anwar inflicted dagger blow on the chest of complainant’s son; Hafiz Muhammad Arshad (the Appellant No. 2) inflicted dagger blow under left armpit of complainant’s son; Amir (the Appellant No. 3) inflicted dagger blow on left rib of complainant’s son; Allah Ditta (the Appellant No. 4) inflicted dagger blow on the left side of belly of complainant’s son; Jahangir inflicted dagger blow on the right arm of the complainant’s son; Manzoor Ahmad inflicted dagger blow on the left rib of the complainant’s son, Muhammad Ali; the complainant (PW-1) stepped forward for separating them, then Jahangir inflicted dagger blow on the right side of belly of the complainant; out of six unknown persons, Abid Hussain (whose name was later on disclosed) also inflicted dagger blow on the left side of nose and left cheeks of the complainant’s son, when he was in falling condition; Amir Ali (the Appellant No. 3) inflicted dagger blow near the left knee of the complainant, whereas Allah Ditta (the Appellant No. 4) inflicted dagger blow on the right knee of the complainant. After sustaining severe injuries, the complainant and his son fell. Upon rising noise, PWs Allah Rakha (PW-2) and Muhammad Yar (given up PW) came, who saw the occurrence along with the complainant in the light of an electric bulb. The accused persons, after raising lalkara and brandishing weapons, fled away from the spot. The witnesses were shifting the complainant and his son Muhammad Ali for their medical treatment to Arifwala when Muhammad Ali succumbed to the injuries on the way, while the complainant was referred to Sahiwal, where he remained under treatment.
The motive behind the occurrence was that Ali Akbar (Appellant No. 1) and his co-accused had the suspicion that the deceased Muhammad Ali had illicit relations with Mst. Sonia Bibi, daughter of Ali Akbar (Appellant No. 1). So, the accused, on the pretext of theft of wood, attacked with planning and killed Muhammad Ali and injured the complainant.
4. Upon receiving the information of the occurrence, Faisal Hussain S.I. (CW-6) reached the place of occurrence, where Haji Muhammad Yasin (given up PW), got recorded his statement (Ex.CW-5/A), which was reduced to writing and read over to Muhammad Yasin (given up PW), who put his signatures on the same; after that, on completion of police karwai (proceedings), Faisal Hussain, S.I. (CW-6) sent the same to the Police Station through Muhammad Mansha 323/C (not cited as a witness), after that formal F.I.R. (Exh.CW-5/B) was chalked out by Abdul Ghaffar A.S.I (CW-5).
5. After registration of the case, the investigation of the case was conducted by Faisal Hussain S.I (CW-6)-the Investigating Officer, and after that, the investigation was entrusted to Muhammad Tufail Ex.S.I (CW-8), who found the accused/appellants guilty, prepared a report under Section 173 of, Cr.P.C. Being dissatisfied with the result of the investigation, as the Investigating Officer being in league with the accused did not investigate the matter properly, Muhammad Yousaf (PW-1)-the complainant/injured was constrained to file a private complaint (Ex. PA), and after recording the cursory evidence of the complainant and having perused the record, all the accused persons were found connected with the commission of the offence, so they were summoned to face the charge. After that, the trial Court formally charge sheeted the appellants on 29.08.2022, to which they pleaded not guilty and claimed trial. In support of his version, the complainant produced as many as two (02) witnesses, whereas the rest were summoned as Court witnesses, i.e., C.W-1 to C.W-10.
6. After the closure of prosecution evidence, the appellants were examined under Section 342 of, Cr.P.C., wherein they neither opted to appear as their own witnesses in terms of Section 340 (2), Cr.P.C. nor produced any evidence in their defence. In response to a particular question that why this case was against them and why the PWs had deposed against them, Ali Akbar-the appellant, made the following deposition:
“I and my co-accused have been falsely implicated by the complainant in this case. We have been falsely implicated in this case due to political friction. The deceased Muhammad Ali was a bad character man and he has illicit relation with the different women of the area so he used to sleep in his shop where his some unknown enemy attacked upon him and caused him injuries. Firstly, Muhammad Yaseen got registered a false case against me and my co-accused in form of FIR who is the maternal uncle of deceased as complainant disclosed before him the false and concocted facts of the occurrence. When the complainant of case/FIR came to know that we were falsely involved in this case he refused to support the version of FIR so complainant Muhammad Yousaf filed this private complaint. Muhammad Yousaf complainant was not present at the spot and he got issued a fake medical from the THQ Hospital Arifwala whereas the alleged occurrence took place in the territorial limits of DHQ Hospital Pakpattan. Muhammad Yousaf complainant has personal relationship with the doctor Saqib and he also put some political pressure upon the doctors in this regard. In fact, there are two political parties in our village Hota. PTI party leads by one Jalal Akbar Hotiana and I along with my co-accused and our families used to support the above said political figure whereas Mr. Naseem Mahmood Hotiyana leads to the parties PDM in our area and complainant party used to support him and is under his influence. I affixed a board of PTI party in my house and agricultural land when the said board was saw by Naseem Hotiyana he show his disliking and anger and abuses were exchanged between me and Naseem Hotiyana. In the meanwhile, the instant occurrence took place and complainant party falsely implicated me and my relative co-accused in this case on the asking of Naseem Mahmood Hotiyana. We have not any ill-will or grudge with the complainant party. Hence, the complainant party introduced a false motive of theft of the wood in the FIR and thereafter they introduced another false motive of illicit relation of deceased with one Sonia Bibi. Both the motives are fake and concocted. My co-accused Hafiz Muhammad Arshad is a paralyzed person and his both legs are paralyzed due to polio and he can move very slowly with the help of his hands and he is unable to stand, so how he could cause injury to deceased who was young, healthy and strong man. The facts of the FIR were found not correct during the investigation so, my co-accused namely Anwar, Asghar and Manzoor were found innocent during the investigation. All the PWs are closely related to the deceased and having political friction with us, hence, they have been falsely deposed against me and my co-accused.”
Hafiz Muhammad Arshad, Amir Ali, and Allah Ditta (Appellants Nos. 2, 3, and 4) opted the detailed answer of their co-accused, Ali Akbar (Appellant No. 1).
7. 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 appellants’ conviction in the afore-stated terms.
8. I have heard the arguments advanced by the learned counsel for the parties and have minutely perused the record on the file.
9. As per the private complaint (Ex. PA), the incident took place on 04.03.2020, whereas this fact has not been mentioned in “Fard Biyan” (Ex. CW-5/A) and FIR (Ex. CW-5/B). Muhammad Yousaf (PW-1) is the injured complainant of a private complaint (Ex.PA) filed on 14.09.2021, after about 01 year and 06 months, and mentioned in the private complaint (Ex.PA) that during the investigation, the Investigating Officer declared Asghar, Anwar, and Manzoor innocent. Whereas Muhammad Yaseen (not cited as a witness in the private complaint), brother-in-law of Muhammad Yousaf (PW-1) (wife’s brother), got recorded his statement through Fard Bayyan (Ex. CW5/A) at 09:30 p.m. on 04.03.2020 to Faisal Hussain S.I. (CW-6)-Investigating Officer, upon which Faisal Hussain S.I. (CW-6)-Investigating Officer endorsed police proceedings and sent the same to police station Kalyana through Muhammad Mansha 323/C (not cited PW) and Abdul Ghaffar ASI (Ex. Moharrar) (CW-5) formally chalked the FIR (Ex. CW-5/B) at 10:10 p.m. on 04.03.2020. Abdul Ghaffar ASI (Ex. Moharrar) (CW-5) deposed during cross-examination that:
“I received the complaint Ex.CW-5/A at 10:10 p.m on 04.03.2020.”
Faisal Hussain S.I. (CW-6)-Investigating Officer deposed during the cross-examination that:
“I received the information of this occurrence at 08:15 p.m on 04.03.2020 when I was present police station Kalyana through Moharrar Abdul Ghaffar PW. The place of occurrence is at a distance of 16-KM from the police station and I reached there within 20-minutes after receiving the information. I don’t know who informed the Moharrar about the occurrence. One Haji Muhammad Yasin got recorded his statement Ex.CW-5/A to me as complainant. We reached at the place of occurrence at 08:30 p.m and dead body of deceased was lying on the ground at the place of occurrence at the time of my arrival.”
Contrary to the above, Abdul Ghaffar ASI (Ex. Moharrar) (CW-5) deposed during cross-examination that:
“I did not receive any information regarding this occurrence prior to receiving the complaint Ex.CW-5/A.”
During examination-in-chief, Muhammad Yousaf (PW-1)-the complainant deposed as under:
“The F.I.R. about this occurrence was got registered on the report of Haji Muhammad Yaseen PW but police did not carry out the investigation as per law and facts and declared Asghar, Anwar and Manzoor accused as innocent. Hence, I have filed instant private complaint Ex-PA which bears my thumb-impression in order to seek justice.”
Muhammad Yousaf (PW-1)-the complainant mentioned the date of occurrence in the private complaint as 04.03.2020 at 08:00 p.m. However, he (PW-1) admitted during cross-examination that:
“I got recorded in my statement Ex.DA that date of occurrence was 04.03.2020. Confronted with Ex.DA where date is not mentioned in any contents.”
He (PW-1)-the complainant also admitted that Haji Muhammad Yasin (given up PW) is the brother-in-law (wife’s brother). However, he has not cited him as a witness. During cross-examination, he (PW-1)-the complainant, deposed as below:
“Haji Yasin is brother of my wife got registered this case. I did not cite him as witness in my complaint case. It is correct that as he did not want to support our version hence I did not cite him as witness in this case.”
It is admitted fact that Haji Muhammad Yasin (not cited as a witness) reported the incident through “Fard Biyan” (Ex.CW-5/A), recorded by Faisal Hussain S.I. (CW-6)-the investigating officer. It is admitted that on the statement of Haji Muhammad Yasin (not cited as a witness), FIR was registered and was not supporting the case of Muhammad Yousaf (PW-1)-the complainant (complainant of private complaint). The statement under Section 161, Cr.P.C. of Muhammad Yousaf (PW-1)-the complainant, was recorded by Faisal Hussain S.I. (CW-6)-the Investigating Officer, after 05-days of the occurrence at the hospital. In this regard, Muhammad Yousaf (PW-1)-the complainant, deposed during cross-examination as under:
“I admitted in the hospital at 09:00 p.m. I don’t know when police visited the place of occurrence and what police proceeded at the place of occurrence. I did not see the police on the day when I was shifted to hospital. I first time got recorded my statement after five days of the occurrence at Sahiwal hospital.”
Contrary to the deposition of Muhammad Yousaf (PW-1)-the complainant, Faisal Hussain S.I. (CW-6)-the Investigating Officer deposed during cross-examination that:
“I received the information of this occurrence at 08:15 p.m. on 04.03.2020 when I was present police station Kalyana through Moharrar Abdul Ghaffar PW. The place of occurrence is at a distance of 16-KM from the police station and I reached there within 20-minutes after receiving the information. -------------- One Haji Muhammad Yasin got recorded his statement Ex.CW-5/A to me as complainant. We reached at the place of occurrence at 08:30 p.m. and dead body of deceased was lying on the ground at the place of occurrence at the time of my arrival. Yousaf injured PW was also present at the place of occurrence at the time of my arrival. I did not record statement of Muhammad Yousaf, the alleged injured PW. Volunteered that he was in precarious condition, hence his statement was not recorded.”
Faisal Hussain S.I. (CW-6)-the Investigating Officer stated during cross-examination that he reached the place of occurrence at 08:30 p.m., and the dead body of the deceased was lying on the ground at the place of occurrence at the time of his arrival. While Allah Rakha
(PW-2)-the eye-witness deposed during cross-examination that:
“As soon as we reached at THQ Hospital Arifwala we got issued the Medical examination of Muhammad Yousaf deceased. We also shifted the dead body of Muhammad Ali deceased at THQ hospital Arifwala along with Muhammad Yousaf injured. We shifted both Muhammad Ali deceased and Muhammad Yousaf on the car of one Muhammad Yasin Joiya. We all the four PWs, deceased Muhammad Ali and Muhammad Yasin Joiya reached at THQ Arifwala in one car. I along with Yasin and Muhammad Yar took back the dead body of Muhammad Ali deceased at the place of occurrence from THQ Hospital Arifwala on the same car. The hands and clothes of myself, Yasin and Muhammad Yar PWs were smeared with blood of deceased and injured while we took care of them while we taking to the hospital. We handed over our blood stained clothes to police. We reached back at the place of occurrence along with dead body at 09:30 p.m.”
Allah Rakha (PW-2)-the eye-witness has specifically deposed during cross-examination that they reached back at the place of occurrence along with dead body at 09:30 p.m. The above-said depositions of the PWs create doubt about the prosecution story.
10. As per the case of the prosecution, Muhammad Yousaf (PW-1)-the complainant deposed during examination-in-chief, that Haji Yasin (given up PW), Allah Rakha (PW-2), and Muhammad Yar witnessed the occurrence in the light of an electric bulb. These PWs took him and his son to the hospital, but his son Muhammad Ali succumbed to the injuries on the way, and he (PW-1) was referred from Arifwala Hospital to Sahiwal Hospital for treatment. Whereas, during cross-examination, Muhammad Yousaf (PW-1)-the complainant, deposed as below:
“My relative Nadeem shifted me to THQ Hospital Arifwala and from where I was referred to DHQ Sahiwal.”
While taking somersault, Muhammad Yousaf (PW-1)-the complainant, further deposed during cross-examination that:
“I was shifted from the place of occurrence by Allah Rakha and Yasin complainant after 15/20 minutes of the occurrence on a car owned by one Yasin Joiya. Yasin was driving the car. We reached at THQ hospital Arifwala within 15/20 minutes. Within 15/20 minutes as I reached at THQ Arifwala my medical examination was conducted. My medical examination was conducted in the absence of police. I don’t know when police visited the THQ Hospital Arifwala. I remained admitted at THQ Hospital Arifwala for 15/20 minutes. Thereafter, one relative Nadeem shifted me to DHQ hospital Sahiwal on ambulance.”
Allah Rakha (PW-2)-the eye-witness deposed during examination-in-chief that:
“I along with complainant Muhammad Yousaf, PWs Haji Yaseen and Muhammad Yar witnessed the entire occurrence in the light of electric bulb and after the occurrence accused persons fled away by extending threats to kill us and PWs by waving their daggers. We took the complainant and his son to hospital but Muhammad Ali succumbed to the injuries in the way while complainant was referred from Arifwala hospital to Sahiwal hospital for treatment.”
Contrary to the above, Dr. Saqib Ishaq M.O (CW-7), who conducted the medico-legal examination of Muhammad Yousaf (PW-1)-the complainant deposed during examination-in-chief that:
“It is stated that on 04.03.2020, I was posted as M.O at THQ Hospital Arifwala. On the same day, at about 09:15 P.M, I conducted medico legal examination of Muhammad Yousaf son of Muhammad Sharif, caste Rehmani, aged 56-years, r/o Chak Hota, Pakpattan which was brought by Muhammad Tufail S.I.”
In the column of brief history, it was mentioned that the examinee gave a history of assault at about 07:30 p.m. on 04.03.2020, beaten with Khanjar. Cross-examination of Dr. Saqib Ishaq M.O (CW-7) was conducted by the learned counsel for the complainant, and the question put to the witness reveals that the prosecution admitted that Muhammad Yousaf (PW-1)-the complainant, was medically examined at the request of police. He (CW-7) deposed during cross-examination that:
“It is correct that medical examination of Muhammad Yousaf injured PW was conducted on the request of police while in the relevant column name of Muhammad Tufail SI is mentioned.”
During the cross-examination conducted by the defence, Dr. Saqib Ishaq M.O (CW-7) deposed as under:
“I conducted medical examination of Muhammad Yousaf injured on docket of police but same is not available on the record. It is correct that said docket is not available on record/file nor my any endorsement is available as per record. No rapt number is mentioned regarding the said docket in record. It is incumbent upon a doctor to mention the rapt number in the relevant column but in this MLC same is not mentioned by me. It is correct that my endorsement is available on application Ex.CW-7/C regarding the Muhammad Yousaf injured. It is correct that said application was presented before me on 27.04.2020.”
The MLC of Muhammad Yousaf (PW-1), the complainant, reveals that Muhammad Tufail S.I. brought the injured. In addition, through the application (Ex. CW-7/C), the Investigating Officer requested the issuance of an MLC, which Muhammad Yousaf (PW-1) received. All the above facts cast a cloud of doubt about the prosecution story.
11. There is another aspect of the case which makes the prosecution’s case doubtful. Muhammad Yousaf (PW-1)-the complainant deposed during cross-examination that:
“First of all, Haji Yasin complainant of FIR, came to my house just for visit. He is my relative. Allah Rakha PW came in my house after 10/15 minutes after the arrival of Yasin, complainant.”
Whereas Allah Rakha (PW-2)-the eye-witness deposed during cross-examination that:
“First of all, I and Muhammad Yar reached in the house of Muhammad Yousaf PW prior to the occurrence. After 5/7 minutes of our arrival my brother Yasin, complainant of FIR, came in the house of Muhammad Yousaf PW. We remained present there for 15 /20 minutes.”
The arrival sequence of PWs at the place of occurrence creates doubt about the presence of Allah Rakha (PW-2), the eye-witness,
and Muhammad Yar (given-up PW being unnecessary). In addition, Allah Rakha (PW-2)-the eye-witness deposed during cross-examination that:
“I used to live in a separate house. My house is situated at the backside of shop where the occurrence has taken place. It is correct that according to my NIC my permanent and present address is mentioned as Ashiq Abad Qaboola, Tehsil Arifwala District Pakpattan which is at a distance of 16/17 kilometers from the place of occurrence. The date of issuance of my NIC is mentioned as 02.04.2016.”
The above deposition made by Allah Rakha (PW-2) also creates doubt about his presence at the place of occurrence. Another fact, which also makes the case of the prosecution doubtful, is that Allah Rakha (PW-2)-the eye-witness, deposed during cross-examination that they reached back at the place of occurrence along with dead body at 09:30 p.m. Whereas Tanveer Ahmad 663/C (CW-3) deposed during cross-examination that:
“We received information of this occurrence at 08:00 p.m when I was on petrol duty along with Faisal Hussain SI at Adda Purana Thana which is at a distance of 2/3 KM from the place of occurrence. We reached at the place of occurrence at 08:15 p.m. The dead body was lying on the ground at that time. No injured person was present there at the time of our arrival ----------------------------------------------- The I.O recorded statement of three/four persons at the spot. ------------------ We waited for ambulance and then shifted the dead body to DHQ Hospital Pakpattan. The dead body of deceased was handed over to me at 08:15 p.m. Thereafter I escorted the dead body to DHQ hospital Pakpattan at about 09:00 p.m.”
There are contradictions between the statements of prosecution witnesses regarding the arrival of the police and the dispatch of a
dead body to the hospital. In addition, Muhammad Yousaf (PW-1)-the complainant, deposed during cross-examination that he was not present at the place of occurrence when the site plan was prepared. He (PW-1)-the complainant, deposed during cross-examination that:
“I was not present at the place of occurrence when police prepared the site plan and when draftsman visited the place of occurrence, hence, I did not point out any place to the police.”
Contrary to the above, Faisal Hussain S.I. (CW-6)-the Investigating Officer, deposed during the cross-examination below:
“When I prepared the siteplan the PWs Yasin, Muhammad Yousaf, Muhammad Yar and Allah Rakha were present there and they pointed out all the points and places to me.”
The Investigating Officer (CW-6) also admitted during cross-examination that in column No. 3 of the inquest report (Ex. CW2/D), the time of receiving information of the occurrence is not mentioned. In addition, the names of the prosecution witnesses were neither mentioned in column No. 4 nor on the last page of the inquest report (Ex. CW2/D). Faisal Hussain S.I. (CW-6) deposed during cross-examination that:
“I obtained signatures of Mian Zafar Riaz Hotiyana and Naseem Mahmood Hotiyana in the last portion of the inquest report. It is correct that both of them were not the witnesses of this case. I did not mention the name of any of the PWs at that column. It is correct that both Mian Zafar Riaz Hotiyana and Naseem Mahmood Hotiyana are political figures who used to contest election in that particular area. I don’t know whether Naseem Hotiyana is advocate. Both of them appeared before me from complainant side.”
Non-mentioning the names of prosecution witnesses in the inquest report (Ex. CW-2/D) creates doubt about their presence at the place of occurrence. The defence brought on the record improvement made by Muhammad Yousaf (PW-1), the complainant in his examination-in-chief. He (PW-1) deposed during cross-examination that:
I got recorded in my statement that PWs Haji Yasin, Allah Rakha and Allah Yar witnessed the occurrence in the light of bulb and after the occurrence fled away by extending threats to kill us and by waiving their daggers. Confronted with Ex.DA where it is not so recorded.
In addition, Faisal Hussain S.I. (CW-6), the Investigating Officer, also admitted during cross-examination that no electric bulb was taken into possession from a place of occurrence, nor was its recovery memo prepared. Faisal Hussain S.I. (CW-6), the Investigating Officer, deposed during the cross-examination that:
“The place of occurrence was situated in the BAZAAR and surrounded by different shops. It is correct that none of the surrounding shopkeepers was appeared before me as witnesses for recording his statement. When I prepared the site plan the PWs Yasin, Muhammad Yousaf, Muhammad Yar and Allah Rakha were present there and they pointed out all the points and places to me.”
There is a contradiction in the deposition of prosecution witnesses, i.e., Muhammad Yousaf (PW-1)-the complainant; Allah Rakha (PW-2)-the eye-witness, Tanveer Ahmad 663/C (CW-3) and Faisal Hussain S.I. (CW-6)-the Investigating Officer about the mode and manner in which the injured was shifted to the hospital and who shifted the dead body to the hospital, creates doubt about the prosecution story.
12. According to the prosecution version, Ali Akbar (Appellant No. 1) had a suspicion of illicit relations of his daughter Sonia Bibi with the deceased, Muhammad Ali, and due to said grudge, the accused persons attacked the complainant party by pretending the false allegation of theft of wood. The defence has brought material improvements/discrepancies/contradictions in the prosecution evidence. Muhammad Yousaf (PW-1), the complainant, deposed during cross-examination that:
“I got recorded in my statement Ex.DA that date of occurrence was 04.03.2020. Confronted with Ex. DA where date is not mentioned in any contents. I did not get record in my statement that electric bulb was lighten at the place of occurrence. Volunteer I was not in senses at the time of recording my statement. I get record in my statement that Manzoor accused inflicted dagger blow which hit near and below of left flank of my son. Confronted with Ex. DA which hit near or below the left is not mentioned in this contents. However, on flank is mentioned. I did not mention the name of Abid accused and his role that he inflicted dagger blow on the body of my son which hit on left side of nose of Muhammad Ali in my statement Ex.DA. I did not mention in my statement Ex. DA that Abid accused inflicted dagger blow which hit on my left cheek. I did not get records in my statement Ex. DA that Abid accused also inflicted dagger blow near my left knee. Volunteer I came to know this fact later on. I did not get record in my statement that Allah Ditta inflicted dagger blow on my right knee. Volunteer I came to know this fact later on. I got recorded in my statement that PWs Haji Yasin, Allah Rakha and Allah Yar witnessed the occurrence in the light of bulb and after the occurrence fled away by extending threats to kill us and by waiving their daggers. Confronted with Ex.DA where it is not so recorded.
Allah Rakha (PW-2) deposed during cross-examination that:
“I got recorded my statement Ex.DB at 09:30 p.m. I got recorded the date of occurrence 04.03.2020 in my statement Ex.DB. Confronted with Ex.DB where date of occurrence is not mentioned in any context. I got recorded in my statement that electric bulb was lighting. Confronted with Ex.DB where it is not mentioned in any context. I get record in my statement that Manzoor accused inflicted dagger blow which hit near and below of left flank of my son. Confronted with Ex.DB where hit near or below the left is not mentioned in this contents. However, on left flank is mentioned. I did not mention the name of Abid accused and his role that he inflicted dagger blow on the body of my son which hit on left side of nose of Muhammad Ali in my statement Ex.DB. I did not mention in my statement Ex.DB that Abid accused inflicted dagger blow which hit on left cheek of Muhammad Yousaf PW. I did not get record in my statement Ex.DB that Abid accused also inflicted dagger blow near left knee of Muhammad Yousaf PW. Volunteer I came to know this fact later on. I did not get record in my statement that Allah Ditta inflicted dagger blow on right knee of Muhammad Yousaf PW. Volunteer I came to know this fact later-on. I got recorded in my statement that PWs Haji Yasin, Muhammad Yousaf and Allah Yar witnessed the occurrence in the light of bulb. Confronted with Ex.DB where it is not so recorded.”
Thus, it becomes clear that Muhammad Yousaf (PW-1), the complainant, and Allah Rakha (PW-2) deliberately made improvements in their statements, and in such circumstances, the prosecution story seems doubtful. Muhammad Yousaf (PW-1), the complainant, deposed during cross-examination that:
“It is correct that I did not get record all the motive part of the occurrence in my statement Ex.DA. I mentioned the motive of this occurrence first time in my private complaint after about six months of the occurrence.”
Allah Rakha (PW-2), the eye-witness, also deposed during cross-examination that:
“I got recorded in my statement Ex.DB that motive behind the occurrence was that accused Ali Akbar was having suspicion of illicit relation of her daughter Sonia Bibi with deceased and due to this grudge the accused persons committed the occurrence. Confronted with Ex.DB where it is not mentioned in any context. I correctly recorded the motive of the theft of wood in my statement Ex.DB. Volunteer that during the investigation Ali Akbar accused confessed about the motive while he was in police custody and Sonia Bibi also disclosed the motive during investigation.”
Muhammad Tufail Ex. S.I. (CW-8)-the Investigating Officer deposed during cross-examination that:
“I did not record statement of complainant and any PWs throughout my investigation regarding any other motive except the motive of theft of wood which has been mentioned in the FIR. Complainant and PWs did not disclose any motive before me during whole investigation other than the motive of theft of wood which has been mentioned in the FIR. It is correct that no person of area disclosed any other motive before me rather than the motive mentioned in the FIR. It is correct that the motive mentioned in the FIR regarding the theft of wooden was not proved against the accused persons during my investigation. It is correct that no application or FIR regarding the theft of wood which was mentioned in the motive of the FIR was lodged. Volunteer that Sonia Bibi disclosed any other motive. It is incorrect that my volunteer statement is false. It is correct that aforesaid Sonia Bibi was not produced before me by the complainant party.”
Ajmal Saeed, Inspector (CW-10), deposed during the examination-in-chief that after the Investigating Officer had completed the investigation, the case file was presented to him, and he prepared a report under Section 173, Cr.P.C. in which he narrated as under:
“After completion of investigation by the I.O case file of this case was presented before me for preparation of report under Section 173, Cr.P.C., so, accordingly on 23.03.2020 I prepared report under Section 173, Cr.P.C. in this case as SHO P.S Kalyana, Pakpattan in which it was narrated by me that during investigation it came to light that as per version of Ali Akbar accused he had committed the murder of Muhammad Ali deceased and caused injuries to Muhammad Yousaf due to the grudge that Muhammad Ali deceased was having illicit relations with Mst. Sonia Bibi d/o Ali Akbar accused.”
Contrary to the above, Ajmal Saeed, Inspector (CW-10), admitted during cross-examination conducted by the defence that:
“I prepared said report on the basis of investigation conducted by Muhammad Tufail SI. I did not conduct investigation of this case. The narration incorporated by me in the report was based on the investigation of Muhammad Tufail SI/I.O.”
Thus, it becomes clear that the statements of Muhammad Yousaf (PW-1)-the complainant, Allah Rakha (PW-2)-the eye-witness, Muhammad Tufail Ex. S.I. (CW-8)-the Investigating Officer and Ajmal Saeed, Inspector (CW-10), contain significant contradictions, and the motive was not proved. Therefore, the prosecution’s evidence concerning the motive is inadequate to depend on the witnesses’ testimonies. That creates grave doubt in the prosecution story.
13. As far as recoveries of the weapon of offences, i.e., blood-stained Dagger (P-4) on the pointing of Ali Akbar (Appellant No. 1), blood-stained Dagger (P-2) on the pointing of Hafiz Muhammad Arshad (the Appellant No. 2), blood-stained Dagger (P-3) on the pointing of Amir Ali (the Appellant No. 3), blood-stained Dagger (P-1) on the pointing of Allah Ditta (the Appellant No. 4), on 20.03.2020 and positive report of Punjab Forensic Science Agency (Ex.PH) are concerned, as per the prosecution case, on 12.03.2020, the appellants, Ali Akbar, Hafiz Muhammad Arshad, Amir Ali, and Allah Ditta were arrested. Muhammad Tufail Ex.S.I (CW-8)-the Investigating Officer, on 20.03.2020, recovered the weapon of offences, i.e., blood-stained Dagger (P-4) on the pointing of Ali Akbar (the Appellant No. 1), blood-stained Dagger (P-2) on the pointing of Hafiz Muhammad Arshad (the Appellant No. 2), blood-stained Dagger (P-3) on the pointing of Amir Ali (the Appellant No. 3), blood-stained Dagger (P-1) on the pointing of Allah Ditta (the Appellant No. 4), which was taken into possession through the sealed parcels and same were deposited with the office of Punjab Forensic Science Agency. Per the Punjab Forensic Science Agency report (Ex.PH), human blood was identified on items # 2.1, 3.1, 4.1, and 5.1, i.e., “daggers recovered from the appellants.” Although the evidence relating to the recovery of blood-stained “daggers” is in line, I noted that the recovered daggers were analyzed on 16.04.2020, forty-three days after the occurrence. Human blood was not compared with Muhammad Ali’s blood. It was not possible to determine the origin of the blood on “daggers”, as blood disintegrated after one month of the occurrence and in this regard, case of “Faisal Mehmood vs. The State” (2017 Cr.LJ 1) can be referred and relevant portion from the same is reproduced hereunder:
“It was scientifically impossible to detect the origin of the blood after about two years of the occurrence because human blood disintegrates in a period of about three weeks.”
Even otherwise, it does not appeal to reason that the accused might have kept blood-stained daggers (P-1 to P-4) with them in their house intact to produce them before the Investigating Officer on their arrest. The accused cannot be expected to keep the blood-stained daggers
(P-1) in their house for a long period when they could have easily disposed of them. Allah Rakha (PW-2) deposed during cross-examination that:
“I know the difference between dagger and knife/CHURRI. The CHURRI having one sharp edge while the dagger having sharp edges both sides. Allah Ditta accused allegedly got recovered a dagger which having both sides sharp. Volunteer one difference in dagger and CHURRI is that the size of dagger is big while the size of CHURRI is small. The PW further volunteer that the dagger was like CHURRI. ------------ All the recoveries were effected from the respective houses of accused. The houses of accused persons were jointly under the possession of brothers and other family members of accused persons. The different people used to live around the house of recoveries.”
Muhammad Tufail Ex.S.I. (CW-8)-the Investigating Officer deposed during cross-examination that:
“The recovered articles P1 to P4 were infact CHURRI NUMA and one side of the aforesaid article was sharp and other side was blunt. The aforesaid recovered articles were things of common pattern which are easily available everywhere. All the recoveries were effected from well populated places. No person from the locality gathered at the spot at the time of recovery. Two recoveries were effected from one house and other two recoveries were effected from one other house. All the family members including parents, brothers, sisters and other family members used to live jointly in the alleged place of recoveries.”
Admittedly, the recoveries were affected from joint house. In these circumstances, the recoveries and positive report are not of any consequence.
14. As it is difficult to rely upon the testimonies of Muhammad Yousaf (PW-1)-the complainant, and Allah Rakha (PW-2)-the eye-witness, and for other reasons enumerated hereinbefore, I am persuaded to hold that the prosecution had not been able to prove its case against the appellants beyond any shadow of a doubt as there were many dents in the prosecution story. The conviction and sentence the learned trial Court recorded could not be sustained. It is held in the case of “Muhammad Akram v. The State” (2009 SCMR 230) that:
“The nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right.”
In the case of Muhammad Zaman versus The State and others (2014 SCMR 749), it is held as under:
“Needless to say that even a single doubt if found reasonable, is enough to warrant acquittal of the accused. Above all else when initial presumption of innocent is strengthened on the acquittal of the accused, we would not like to interfere there with simply because another view is equally possible.”
15. In light of the above discussion, I affirm that the prosecution has failed to prove its case against the appellants beyond any shadow of a doubt. Therefore, I accept the instant Criminal Appeal No. 31052 of 2023 filed by the appellants Ali Akbar, Hafiz Muhammad Arshad, Amir Ali, and Allah Ditta, in toto. The conviction and sentence awarded by the learned Additional Sessions Judge, Pakpattan, vide judgment dated 31.03.2023, is set aside. The appellants-Ali Akbar, Hafiz Muhammad Arshad, Amir Ali and Allah Ditta, are acquitted of the charge in a private complaint filed under Sections 302, 324, 337-D, 337-A(iii), 148, 149, PPC P.S. Kalyana, District Pakpattan titled
“Muhammad Yousaf vs. Ali Akbar, etc.” arising out of case FIR No. 55/2020 dated 04.03.2020 registered under Sections 302,324, 148,
149, PPC at P.S. Kalyana, District Pakpattan. They (the appellants) are directed to be released forthwith if not required in any criminal case.
16. Criminal Revision No. 43674 of 2023, filed by
the complainant, Muhammad Yousaf, to enhance the sentence of Respondents Nos. 1 to 4 awarded by the trial Court, is devoid of any legal force for reasons aforestated and accordingly dismissed.
17. Office is directed to transmit copy of this judgment to the Director General, Punjab Forensic Science Agency, Lahore for information.
(A.A.K.) Appeal accepted
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