[Lahore High Court, Multan Bench]
Present: Sadaqat Ali Khan and Shahram Sarwar Ch., JJ.
MUHAMMAD ARIF etc.--Appellants
versus
STATE--Respondent
Crl. A. No. 554-J and M.R No. 58 of 2018, decided on 1.11.2022.
Pakistan Penal Code, 1860 (XLV of 1860)--
--دفعہ 302(ب) اور 34--قتل حوالہ-- سزا اور جرم --چیلنج--شک کا فائدہ--قتل عمد--اقرار جرم سے ماورائے عدالت--واقعہ کا محرک فریقین کے درمیان تعلق کا تنازعہ تھا لیکن مدعی نے اس کی تفصیل ظاہر نہیں کی جو قابل یقین نہیں ہے--جرم خالی کارتوس، کلاشنکوف سمیت دفتر میں 17.4.2013 اور 18.4.2013 کو موصول ہوئے--ان حالات میں، پی ایف ایس اے کو مثبت رپورٹ حاصل کرنے کے لیے بھیجنے سے پہلے جرم کے خالی کارتوس بنانے کے امکان کو رد نہیں کیا جا سکتا۔ لہذا، پی ایف ایس اے کی مثبت رپورٹیں قابل یقین نہیں ہیں جنہیں یہاں مسترد کیا جاتا ہے۔ یہ قانون کا طے شدہ اصول ہے کہ شک کا فائدہ دینے کے لیے یہ ضروری نہیں ہے کہ بہت سے حالات شک پیدا کریں۔ اگر کوئی ایک ایسا بھی قرینہ موجود ہو جو کسی بھی عاقل شخص کے ذہن میں ملزم کے جرم کے بارے میں معقول شک پیدا کر دے تو وہ اس کے فائدے کا حقدار ہوگا نہ کہ بطور مہربانی یا رعایت بلکہ حق کے طور پر۔
----Ss. 302(b) & 34--Murder reference--Conviction and sentence--Challenge to--Benefit of doubt--Qatl-e-amd--Extra-judicial confession--Motive of occurrence was dispute of relation between parties but complainant did not disclose its detail which is not believable--Crime empties along with Kalashnikovs received in Office together on 17..4.2013 and 18.4.2013--In these circumstances, possibility of manufacturing crime empties before their dispatch to Office of PFSA to obtain positive report cannot be ruled out Hence, positive reports of PFSA are not believable which are hereby discarded--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 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 12, 13 & 14] B, C & D
2017 SCMR 344.
Extra-Judicial Confession--
--غیر قانونی اعترافی بیان کی کہانی بھی نہ تو قابل فہم ہے اور نہ ہی قابل یقین-- بصورت دیگر، غیر قانونی اعترافی بیان کا ثبوت ایک کمزور قسم کا ثبوت ہے، اسے کسی بھی وقت دوران تفتیش حاصل کیا جا سکتا ہے جب استغاثہ کے پاس براہ راست ثبوت دستیاب نہ ہو-- تاہم، اسے تائیدی ثبوت کے طور پر لیا جا سکتا ہے اگر یہ سچا ثابت ہو اور پھر ناقابل تردید کردار کے دیگر ثبوتوں سے اس کی تائید ہو، جو کہ موجودہ معاملے میں غائب ہے۔
----The story of extra judicial confession is also neither plausible nor believable--Even otherwise, evidence of extra-judicial-confession is a weak type of evidence, same can be procured at any time during investigation when direct evidence is not available with prosecution--However, it could be taken as corroborative piece of evidence if it rings true and then finds support from other evidence of unimpeachable character, which is missing in present case.
[Para 6] A
Mr. Umar Hayat, Advocate for Appellant No. 1.
M/s. Hafiz Allah Ditta and Kashif Bosan, Advocates for Appellant No. 2.
Rana Muhammad Nadeem Kanju, Advocate for Complainant.
Malik Mudassar, DPG for State.
Date of hearing: 1.11.2022.
Judgment
Sadaqat Ali Khan, J.--Muhammad Arif and Sabir @ Kheratu (appellants) along with Muhammad Ishaq, Allah Ditta and Zafar Iqbal @ Zain (co-accused since acquitted) have been tried by learned trial Court in case FIR No. 328 Dated 31.12.2012 u/Ss. 302/109/34, PPC P.S. Nawan Shehar District Khanewal and were convicted and sentenced vide judgment dated 30.03.2018 as under:
Muhammad Arif & Sabir @ Kheratu (appellants)
u/S. 302(b)/34, PPC Sentenced to DEATH as Ta’zir for committing Qatl-i-Amd of Muhammad Hayat (deceased) with compensation of Rs. 2,00,000/-each payable to legal heirs of deceased.
Muhammad Arif & Sabir @ Kheratu (appellants)
u/S. 302(b)/34, PPC Sentenced to DEATH as Ta’zir for committing Qatl-i-Amd of Khan Baig (deceased) with compensation of
Rs. 2,00,000/- each payable to legal heirs of deceased.
Appellants have filed this Criminal Appeal against their convictions, whereas learned trial Court has sent Murder Reference for confirmation of their death sentences or otherwise, which are being decided through this single judgment.
2. The facts of the case have been stated by Haqnawaz/complainant PW. 7 in his statement before the learned trial Court, which is hereby reproduced for narration of the facts:
“Stated that on 31.12.2012 at about 07:30 PM, I along with Muhammad Iqbal (my son), Khan Baig and Muhammad Hayat were present at “Bhana” adjacent with our house. Electricity bulb was switched on. Accused Arif S/o Ghana caste Luck armed with Kalashnikov, Sabir alias Khairatoo S/o Muhammad Nawaz armed with Kalashnikov, Allah Ditta S/o Azam armed with 44-bore rifle & Zafar Iqbal armed with rifle 44-bore came through the door. Arif accused raised lalkara. Sajjad Hussain came at my home as guest who also came at the spot. Accused Arif and Sabir made indiscriminate firing. Allah Ditta and Zafar Iqbal were stood on door as guard. The fire made by accused Arif and Sabir hit on the various parts of body of Khan Baig and Muhammad Hayat who fell down on the ground being severed with the blood. The accused persons fled away towards the western side after making threats. I with the help of PWs Muhammad Iqbal and Muhammad Sajjad attended Muhammad Hayat and Khan Baig who were succumbed to the injuries at the spot due to the firing made by accused Arif and Muhammad Sabir alias Khairatoo.
Motive behind this occurrence was that, there was a dispute of relationship between deceased persons and accused Muhammad Arif. After leaving Iqbal and Sajjad PWs near the dead bodies, I went to police station and produced a written complaint which is as Ex.PJ which also bears my signature Ex.PJ/1. Upon which the police chalked out FIR which is as Ex.PJ/2.”
3. Heard. Record perused.
4. The detail of prosecution case has already been given in para-2 of this judgment, therefore, there is no need to repeat the same to avoid duplication and repetition.
5. Khan Baig and his son Muhammad Hayat were done to death in their cattle shed (Bhana Muveshi) on 31.12.2012 at 7.30 p.m. (night winter season), FIR was lodged on the same night at 8.30 p.m. on the written application of Haqnawaz/complainant, PW. 7 real brother of Khan Baig (deceased), who and his son, Muhammad Iqbal PW8 claim (sic).
6. Sabir @ Kheratu (appellant) has not been nominated in the FIR rather introduced through supplementary statement of Haqnawaz/complainant PW. 7 on 23.01.2013 on the statements of Rehmat @ Rehma PW. 12 and Muhammad Afzal PW. 13, who stated before the learned trial Court that after 22-days of the occurrence, they were sitting in the Dera of Rehmat @ Rehma, PW. 12 Sabir @ Kheratu (appellant) made extra judicial confession before them regarding present occurrence. They did not state that Sabir @ Kheratu (appellant) at the time of making of extra judicial confession was armed with fire-arm, despite of that, Sabir @ Kheratu (appellant) had not been arrested by the PWs on that day rather was arrested on 27.03.2013. Specific time and date of making of extra judicial confession have also not been disclosed by both the PWs. Both the PWs also made dishonest improvements in their statements before the learned trial Court which were confronted to them in their cross-examination. Statements of both the PWs were recorded on the second day of alleged extra judicial Confession, such delay is also fatal to the prosecution (2017 SCMR 486 “Muhammad Asif vs. The State”). The story of extra judicial confession is also neither plausible nor believable. Even otherwise, evidence of extra-judicial-confession is a weak type of evidence, same can be procured at any time during the investigation when direct evidence is not available with the prosecution. However, it could be taken as corroborative piece of evidence if it rings true and then finds support from other evidence of unimpeachable character, which is missing in the present case. (2016 SCMR 1144 “Nasir Javaid and another vs. The State”).
7. Muhammad Arif (appellant) was nominated in the FIR. Both the eye-witnesses stated regarding role of the appellants that on 31.12.2012 st about 7.30 p.m. they along with both the deceased (sic) were present at “Bhana”/ (Cattle shed) adjacent to their house. Electricity bulb was litting. Muhammad Arif and Sabir @ Kheratu (appellants) armed with Kalashnikovs, Allah Ditta and Zafar Iqbal @ Zain (co-accused since acquitted) armed with 44-bore rifles came through door. Appellants made indiscriminate firing whereas Allah Ditta and Zafar Iqbal @ Zain (co-accused since acquitted) were guarding at the door, as a result of firing, Khan Baig and Muhammad Hayat (deceased) sustained injuries on their persons. Sabir @ Kheratu (appellant) was not nominated in the FIR rather was introduced through supplementary statement of the complainant on the statements of Rehmat @ Rehma PW12 and Muhammad Afzal PW13 regarding his alleged extra judicial confession, discussed above, but both the PWs in their statements before the learned trial Court with dishonest improvements nominated him (Sabir @ Kheratu appellants) with effective role of firing on both the deceased, whose role is at par with the role of Muhammad Arif (appellant) as both the appellants were attributed indiscriminate joint firing on the persons of both the deceased. Such dishonest improvements of both the PWs shatter their credibility. (2008 SCMR 06 “Akhtar Ali and others v. The State”).
8. Rough and scaled site plans of the place of occurrence do not show the house of both the eye-witnesses around the place of occurrence negating their version that they had adjacent house. Even otherwise, 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”& 2017 SCMR 564 “Arshad Khan vs. The State”).
9. Post-mortem examination reports Exh.PD & Exh.PG pertaining to Muhammad Hayat and Khan Baig (deceased) (sic) following day i.e. 01.01.2013 at 8.45 a.m. & 10.45 a.m., whereafter post-mortem examination was conducted on their dead bodies at 9.00 a.m. (Muhammad Hayat deceased) and 11.00 a.m. (Khan Baig deceased) on 01.01.2013 with an unexplained delay of more than 13 and 15-hours respectively from the date/time of occurrence (31.12.2012 at 7.30 p.m). Such delay is generally suggestive of a real possibility that time had been consumed by the police in procuring and planting eye-witnesses and in cooking up a story for the prosecution before preparing police papers necessary for getting a post-mortem examination of the dead bodies conducted. (2011 SCMR 1190 “Irshad Ahmad vs. The State”).
10. It is important to note here that at the bottom of written application Exh.PJ moved by the complainant for registration of FIR, it is specifically mentioned that rapt No. 17 was registered at 8.30 a.m. and not at 8.30 p.m. creating doubt in the prosecution story which is otherwise neither plausible nor believable.
11. Learned DPG submits that electric bulb on the basis of which both the eye-witnesses identified the appellants has not been taken into possession by the I.O. through recovery memo. In such eventuality identity of appellants is also not free from doubt. (2017 SCMR 344 “Sardar Bibi and another V. Munir Ahmed and others”).
12. Motive of the occurrence was the dispute of relation between the parties but complainant did not disclose its detail which is not believable.
13. Sabir @ Kheratu and Muhammad Arif (appellants) were arrested on 27.03.2013 and 28.01.2013 respectively, statedly they got recovered Kalashnikovs on 10.04.2013 and 28.01.2013. Reports of FPSA Exh.PS and Exh.PT show that crime empties along with Kalashnikovs received in the Office together on 17..4.2013 and 18.4.2013. In these circumstances, possibility of manufacturing the crime empties before their dispatch to the Office of PFSA to obtain positive report cannot be ruled out Hence, positive reports of PFSA are not believable which are hereby discarded.
14. In view of the above discussion, we entertain serious doubt in our minds regarding participation of Muhammad Arif & Sabir @ Kheratu (appellants). 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.
15. For the foregoing reasons, this appeal is allowed, convictions and sentences of Muhammad Arif& Sabir @ Kheratu (appellants) awarded by learned trial Court through impugned judgment are hereby set-aside. They are acquitted of the charges. They are directed to be released forthwith, if not required in any other case. Murder Reference is answered in NEGATIVE and death sentence of Muhammad Arif & Sabir @ Kheratu (appellants) is NOT CONFIRMED.
(A.A.K.) Appeal allowed
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