PLJ 2024 Cr.C. (Note) 192
Present: Anwaarul Haq Pannun, J.
AKHTAR ALI--Appellant
versus
STATE etc.--Respondents
Crl. A. No. 15191 of 2021, heard on 7.5.2024.
Pakistan Penal Code, 1860 (XLV of 1860)--
- سزا اور جرم ثابت ہونا--چیلنج--طبی ثبوت--شک کا فائدہ--صرف طبی ثبوت تصدیق نہیں کر سکتا، کیونکہ زخم اپنے مرتکب کے بارے میں نہیں بتا سکتا اور نہ ہی ملزم کی شناخت قائم کرتا ہے--مزید برآں، پوسٹ مارٹم رپورٹ مرحوم کی موت کی تصدیق کرتی ہے اور کیمیکل ایگزامینر/فارنزک سائنس ایجنسی کی رپورٹ، جائے وقوعہ پر انسانی خون کی موجودگی یا عدم موجودگی کی تصدیق کرتی ہے لیکن اس شخص کی نشاندہی نہیں کر سکتی جس نے جرم کا ارتکاب کیا--استغاثہ کی جانب سے اپنے مقدمے کو ثابت کرنے کے لیے، یہ اصولی طور پر مستقل طور پر منعقد کیا گیا ہے کہ چونکہ محرک دونوں اطراف کو کاٹتا ہے، اس لیے جیسا کہ اوپر مشاہدہ کیا گیا ہے، استغاثہ قابل اعتماد ثبوت کے ذریعے اپنے مقدمے کو ثابت کرنے میں ناکام رہا ہے--استغاثہ کی جانب سے قائم کردہ محرک اکیلے استغاثہ کی ڈوبتی ہوئی کشتی کو نہیں بچا سکتا--یہ قانونی طور پر مسلمہ اور عالمگیر طور پر تسلیم شدہ اصول ہے کہ سزا ناقابل تردید ثبوت اور جرم کے یقین پر مبنی ہونی چاہیے اور اس لیے استغاثہ کے مقدمے میں پیدا ہونے والا کوئی بھی شک ملزم کے حق میں حل ہونا چاہیے-- منعقد: یہ فوجداری فقہ کا بنیادی اصول ہے کہ عدالت کے ذہن میں معقول شک پیدا کرنے والا ایک بھی واقعہ ملزم کو شک کا فائدہ دینے کا حقدار بناتا ہے، نہ کہ بطور احسان بلکہ بطور حق۔
----S. 302(b)--Qatl-e-amd--Conviction and sentence--Challenge to--Medical evidence--Benefit of doubt--Medical evidence alone cannot corroborate, as injury cannot speak of its author and it does not establish identity of accused--Moreover, postmortem report confirms death of deceased and report of Chemical Examiner/Forensic Science Agency, verify presence or otherwise of human blood on weapon of offence but cannot pinpoint person who had committed occurrence--In order to prove its case by the, prosecution, it has axiomatically been held consistently that since motive cut either of both sides, therefore, as observed hereinabove, prosecution has failed to prove its case through reliable evidence--The motive as set up by prosecution alone does not come to rescue sinking boat of prosecution--It it is axiomatic and universal recognized principle of law that conviction must be founded on unimpeachable evidence and certainty of guilt and hence any doubt that arises in prosecution case must be resolved in favour of accused--Held: It is cardinal principle of criminal jurisprudence that a single instance giving rise to a reasonable doubt in mind of Court entitles accused to benefit of doubt not as a matter of grace but as a matter of right. [Para 6, 8 & 9] A, B, C & D
2007 SCMR 525, PLJ 2000 SC 1041, 1995 SCMR 1345 &
2009 SCMR 230.
M/s. Aasim Sohaib, Asghar Ali Gill and Muhammad Aftab Fareed Janjoa, Advocates for Appellant.
Mr. Fakhar Abbas, Deputy Prosecutor General and Mr. Sirbuland Khan, Assistant Attorney General for State.
Mr. Akhtar Hussain Bhatti, Advocate for Complainant.
Date of hearing: 7.5.2024.
Judgment
The appellant Akhtar Ali, through this criminal appeal under Section 410 of Cr.P.C., has called in question the vires of judgment dated 18.02.2021, passed on conclusion of a trial in a private criminal complaint [which is based upon case/FIR No. 635/2016 dated 03.08.2016, offence under Sections 324/34/302, PPC, registered at Police Station Hujra Shah Muqeem, Tehsil Depalpur, District Okara] under Section 302/34, PPC, titled as “Aamir Hassan vs. Akhtar Ali and others”, whereby the learned Additional Sessions Judge, Depalpur while acquitting the co-accused Muhammad Aslam, Liaqat Ali, Shakeel Ahmad, has convicted and sentenced the appellant Akhtar Ali as under:
Under Section 302(b), PPC
Sentenced to undergo imprisonment for life along compensation Rs. 4,00,000/- payable to the legal heirs of deceased Muhammad Sharif under Section 544-A, Cr.P.C. and in default thereof to further undergo Sl for six months, Benefit of Section 382-B, Cr.P.C. is extended to the convect.
2. The prosecution’s story, as embodied in private complaint (Exh.PC) filed by Aamir Hassan (PW-2) is that on 01.08.2016 at about 9.00 a.m., when the complainant along with his maternal grandfather Muhammad Sharif, proceeding towards Hujra Shah Muqeem, reached near Rajba Pul in the area of Kalasen peerwal, by a Car, Registration No. LEF 1419, suddenly, appellant Akhtar while armed with pistol .30 bore, Muhammad Aslam armed with Kalashnikov like rifle, Liaqat Ali and Shakeel Ahmad armed with repeater .12 bore, ambush on gun point, tried to stop the complainant’s car, but the complainant, accelerated it, whereupon Liaqat Ali accused statedly raised lalkara, exhorting his co-accused to teach a lesson to the complainant for lodging an application against them at Police Station Hujra Shah Muqeem, whereupon, Akhtar, the appellant, made a straight fire with his pistol .30 bore hitting on right side of back of Muhammad Sharif, Muhammad Aslam accused made fire with his rifle hitting below number plate of car, Liaqat Ali and Muhammad Shakeel accused made aerial firing with their respective weapons. Besides the complainant, Muhammad Nawaz and Basharat Ali, the PWs had also witnessed the occurrence. The accused persons fled away while brandishing their weapons and making aerial firing. The on motive behind the occurrence was that one day prior to this occurrence, the accused persons while making a house trespass, gave him beating and in this regard he had moved an application at Police Station and due to said grudge the accused persons had committed the alleged occurrence. The complainant along with PWs brought Muhammad Sharif injured to Police Station Hujra Shah Muqeem, obtained docket and shifted him to RHC Hujra Shah Muqeem and then to the Jinnah Hospital, Lahore where on 15.08.2016 he succumbed to the injuries. The Investigating Officer, according to complainant, did not conduct the investigation fairly and justly, therefore, being dissatisfied with the investigation, he had to file a private complaint.
3. The learned trial Court indicted the appellant and co-accused (since acquitted), to which they pleaded non-culpabilis and claimed trial. The prosecution in order to prove its case has produced as many as 05 prosecution witnesses (PW-1 to PW-5) and 09 CWs (CW-1 to CW-9). The learned Prosecutor after tendering reports of PFSA as Exh:PL to Exh:PN, closed the prosecution’s evidence. The appellant along with co-accused when examined under Section 342, Cr.P.C., once again reiterate their innocence, however, they did not opt to record their statements under Section 340(2), Cr.P.C., or to produce evidence in their defence. On conclusion of the trial, learned trial Judge while acquitting the co-accused Muhammad Aslam, Liaquat Ali and Shakeel Ahmad, convicted and sentenced the accused-appellant as aforesaid.
4. Arguments heard. Record perused.
5. The prosecution’s case has already been described in paragraph No. 2 of the judgment which needs no reiteration. The accused-appellant allegedly made a fire shot with his pistol .30 bore, hitting on right side of back of Muhammad Sharif, who became injured. Later on, on 15.08.2016, Muhammad Sharif, the then injured succumbed to the injury at Jinnah Hospital, Lahore. The alleged occurrence took place on 01.08.2016 at about 9.00 a.m. whereas the matter was reported to the police with inordinate delay of two days on 03.08.2016. The distance between the place of occurrence and police Station is about 09 K.M. Aamir Hassan, complainant (PW-2) is maternal grand-son whereas Basharat Ali is nephew of the deceased Muhammad Sharif. The deceased, PWs and the accused are residents of the same locality and already known to each-other, as such, in absence of any chance of misidentification of the accused persons, there existed no reason to delay, in the facts of the case, in registration of FIR. The explanation for inordinate delay of two days in lodging the F.I.R that the complainant remained busy in the treatment of his maternal grand-father Muhammad Sharif (deceased) is neither plausible nor convincing as another PW Basharat Ali (PW-3), who is nephew of the deceased Muhammad Sharif, could have reported the incident to the police well within time in absence of the complainant (PW-2). It has been held by the apex Court in case titled “Mehmood Ahmad and 3 others vs. The State and another” (1995 SCMR 127) that:
“Delay of two hours in lodging the F.I.R. in the particular circumstances of the case had assumed great significance as the same could be attributed to consultation, taking instructions and calculatedly preparing the report keeping the names of the accused open for roping in such persons whom ultimately the prosecution might wish to implicate.”
Reliance may also be placed upon case reported as “Rafaqat Ali alias Phakoo and others versus The State and others” (2021 P Cr. L.J 360), “Bilal Ahmad versus The State and another” (2022 MLD 1577), “Mst. Aziz Mai versus The State and others” (2022 YLR 424) and “Ahmad Nawaz, and others versus The State and others” (2016 P Cr. LJ 1267). Moreover, according to the application for registration of case Exh:PB, FIR Exh:PB/1 and the complaint Exh:PC, the complainant along with witnesses, took the injured Muhammad Sharif to Police Station Hujra Shah Muqeem, obtained docket and then took the injured (now deceased) through Police to RHC Hospital, Hujra Shah Muqeem. Perusal of column of Medico Legal Certificate of Muhammad Sharif, injured (now deceased), Exh:PK i.e. General Physical Examination/ Symptoms: the then injured was shown as vitally stable. This fact is also confirmed by Dr. Ghulam Kazim (PW-5) by stating that the injured was vitally stable. He again during his cross-examination deposed that the injured was stable and that he was able to make statement. He further stated that history of firearm was given by the patient himself and he did not make statement regarding the occurrence that how that occurred. Aamir Hassan, complainant (PW-2) during the course of cross-examination admitted it correct that at the time of MLC Muhammad Sharif injured was in senses. It is somewhat surprising that despite capacity/stability, he did not opt to record his statement to the I.O. The Police also did not make any effort to record his statement for the reasons best known to it. Thus the noticeable/significant delay in lodging of the F.I.R., non-recording of statement of the injured (now deceased) who was firstly taken to the Police Station and then for MLC when according to medical evidence as stated supra, he was vitally stable at the time of MLC, familiar of the parties to each other being resident of the same vicinity, would point out a possibility that the occurrence remained un-witnessed and time had been consumed in procuring and planting eye-witnesses and in cooking up a story for the prosecution. Furthermore, according to the Medico Legal Certificate of Muhammad Sharif, injured, (now deceased), (Exh:PK), it was the police, who had brought him to THQ Hospital Depalpur for his medical examination on 01.08.2016 at 10.30 a.m. (the alleged day of occurrence). It is an invariable practice that whoever brings an injured to the hospital, whether relative or friend, his name and particulars are mentioned in a specific column, meant therefor but in this case none of the PWs i.e. the complainant Aamir Hassan (PW-2) and Basharat Ali (PW-3) or any other else were cited as companion of the injured (now deceased) Muhammad Sharif. It is trite that men may lie but documents do not. Moreover, Dr. Ghulam Kazim (PW-5), who conducted aforesaid MLC (Exh:PK), during his cross-examination stated that when Muhammad Sharif injured came in the hospital he was not accompanied by any private person. Hence, in view of this position, the presence of eye-witnesses at the spot at the relevant time of occurrence, seems to be doubtful. The co-accused Muhammad Aslam, who according to prosecution made fire hitting backside of the vehicle beneath the number plate whereas other co-accused Liaqat Ali and Shakeel Ahmad made aerial firing have also been acquitted of the charge by extending them the benefit of doubt through the impugned judgment by the learned trial Court.
6. Now coming to the medical evidence furnished by Dr. Adnan Latif (PW-4), who conducted autopsy of Muhammad Sharif and Dr. Ghulam Kazim (PW-5) who conducted MLC of Muhammad Sharif, deceased (then injured), suffice it to observe that it may confirm the ocular account with regard to the receipt of injury and kind of weapon, but it cannot connect the accused with the commission of crime. It has been held by apex Court in case reported as “Israr Ali vs. The State” (2007 SCMR 525) that medical evidence alone cannot corroborate, as the injury cannot speak of its author and it does not establish the identity of the accused. Moreover, the postmortem report confirms the death of the deceased and report of Chemical Examiner/Forensic Science Agency, verify the presence or otherwise of human blood on the weapon of offence but cannot pinpoint the person who had committed the occurrence.
7. So far as recovery of pistol .30 bore (P-4) allegedly recovered on pointing put of the accused/appellant, seized by the I.O through recovery memo. (Exh:CW2/A) duly attested by the PWs is concerned, it may be observed that the same is inconsequential in this case as no empty was seized by the I.O from the place of occurrence. Even, the recovery is just a corroboratory piece of evidence and when other incriminating prosecution’s evidence has been disbelieved/ discarded, the same cannot be relied upon in case of capital punishment.
8. According to the prosecution, the motive behind the occurrence was that one day prior to this occurrence, the accused persons entered in the house of the complainant and gave beating to him and in this regard he had moved an application at Police Station and due to said grudge, the accused had committed the alleged occurrence. The motive is like a cricket pitch on which the players of one team run between the wickets to enhance their team’s scores and the other side try hard to show the players of opposite team, their way to dressing room, therefore, as the motive has never been held to be a conclusive proof of guilt of an accused rather a factor for convincing the mind of a Court deciding the crime while keeping in view the rest of the evidence brought on record. In order to prove its case by the, prosecution, it has axiomatically been held consistently that since the motive cut either of the both sides, therefore, as observed hereinabove, the prosecution has failed to prove its case through reliable evidence. The motive as set up by the prosecution alone does not come to rescue the sinking boat of the prosecution.
9. For what has been discussed above, the prosecution has miserably failed to prove its case against the appellant beyond any shadow of doubt. The benefit of doubt has accrued in favour of accused as the Hon’ble Supreme Court of Pakistan has held in case titled “Muhammad Khan and another vs. State” (PLJ 2000 SC 1041) that it is axiomatic and universal recognized principle of law that conviction must be founded on unimpeachable evidence and certainty of guilt and hence any doubt that arises in prosecution case must be resolved in favour of accused. Moreover, it is cardinal principle of criminal jurisprudence that a single instance giving rise to a reasonable doubt in the mind of Court entitles the accused to the benefit of doubt not as a matter of grace but as a matter of right. Reliance is placed on case titled as “Muhammad Akram versus The State” (2009 SCMR 230) and “Tariq Pervaiz vs. The State” (1995 SCMR 1345). Consequently, the instant Appeal is allowed, the conviction judgment dated 18.02.2021, passed by learned trial Court is set aside and the appellant is acquitted of the charge by extending him the benefit of doubt. The appellant Akhtar Ali be released forthwith, if not required in any other case.
(A.A.K.) Appeal allowed
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