PLJ 2025 SC (Cr.C.) 105
[Appellate Jurisdiction]
Present: Muhammad Hashim Khan Kakar, Muhammad Shafi Siddiqui and Ishtiaq Ibrahim, JJ.
GHULAM MUSTAFA--Appellant
versus
STATE--Respondent
Crl. A. No. 23 of 2020, decided on 13.3.2025.
(Against the order/judgment dated 02.06.2015 passed by the
Lahore High Court, Bahawalpur Bench, in Crl. As. No. 281, 303, 320, 321, 367/2012 and M.R. No. 47 /2012)
Criminal Procedure Code, 1898 (V of 1898)--
دفعہ 342- ملزم کا بیان- اب یہ قانون طے شدہ ہے کہ اگر کوئی ثبوت یا کوئی صورت حال کسی ملزم کے سامنے دفعہ 342 ضابطہ فوجداری کے تحت اس کا بیان ریکارڈ کرتے وقت نہ رکھی جائے، تو اسے اس کی سزا ریکارڈ کرنے کے مقصد کے لیے اس کے خلاف نہیں سمجھا جا سکتا۔
----S. 342--Statement of accused-- The law is settled by now that if a piece of evidence or a circumstance is not put to an accused person at time of recording his statement u/S. 342, Cr.P.C. then same cannot be considered against him for purpose of recording his conviction. [P. 107] B
Pakistan Penal Code, 1860 (XLV of 1860)--
سیکشن 302(b)
-- قتل عمد -- سزا اور مجرم پائیے جانے پر اعتراض -- آنکھوں دیکھا حال -- مدعی کے خلاف لگائے گئے الزامات کی کوئی آزاد تصدیق یا تائید نہ ہونے کی صورت میں، خاص طور پر جب بعض دیگر ملزمان جنہیں وہی کردار دیا گیا تھا، پہلے ہی نچلی عدالتوں سے بری ہو چکے ہیں، ہم یہ نوٹس کرتے ہیں کہ مدعی پارٹی نے حقائق کی پرواہ نہیں کی اور اس کے پیش کردہ عینی شاہدین نے کئی بے گناہ افراد کے خلاف جھوٹ بولا جنہیں بعد میں بری کیا جا چکا ہے۔
----S. 302(b)--Qatl-e-amd--Conviction and sentence--Challenge to--Ocular account--In absence of any independent corroboration or confirmation of allegations leveled against appellant, particularly when some co-accused who were attributed same roles have already been acquitted by Courts below, we are compelled to observe that complainant party had no regard for truth and eyewitnesses produced by it had been established to be untruthful regarding many innocent persons who had been implicated by them and who had subsequently been acquitted. [Pp. 107 & 108] C
Motive--
استغاثہ کی جانب سے قائم کردہ محرک فریقین کے مابین اراضی کے تنازعہ پر مبنی تھا، اور اس طرح، مذکورہ محرک دونوں طرح سے کام کرتا ہے--اگر مذکورہ پس منظر ملزم فریق کو مدعی فریق پر اس طرح کا خوفناک حملہ کرنے کا محرک فراہم کر سکتا ہے، تو وہی محرک اتنی ہی آسانی سے مدعی فریق کو اس قابل بنا سکتا ہے کہ وہ جال کو بہت وسیع پیمانے پر پھیلا کر ملزم فریق کے کچھ بے گناہ افراد کو جھوٹا پھنسا سکے۔
---- The motive set up by prosecution was based upon land dispute between parties and, thus, said motive cut both ways--If said background could provide a motive to accused party to launch such a horrific attack on complainant party, then same motive could equally push complainant party to spread net very wide so as to falsely trap some innocent members of accused party. [P. 107] A
Mr. Zulfikar Khalid Maluka, ASC and Syed Rifaqat Hussain Shah, AOR for Appellant.
Ms. Memoona Ihsan-ul-Haq, DPG for State.
Date of hearing: 13.3.2025.
Judgement
Muhammad Hashim Khan Kakar, J.--The appellant, Ghulam Mustafa, was convicted under Section 302(b), PPC and sentenced to death alongwith an order to pay compensation of
Rs. 200,000/- to the legal heirs of the deceased, Faiz Ahmed, under section 544, Cr.P.C. and in default thereof to further undergo SI for six month. He was also convicted and sentenced under sections 149, 324, 337, and 452, PPC. Being dissatisfied, the appellant filed Criminal Appeal No. 281/2012 before the Lahore High Court, Bahawalpur Bench, which was dismissed by means of the impugned judgment whereby his conviction under Section 302(b), PPC was maintained, however, his sentence was altered from death to imprisonment of life.
2. According to the prosecution, on the fateful day at about 8/9 p.m. the complainant, Mumta.z Ahmed, alongwith his brother, Faiz Ahmed, and sons, Mazhar Abbas, Fayyaz, Riaz, and nephew, Mushtaq, was present in his house. Accused Sahib Yar and his companions, equipped with hatchets and sticks, in collusion with each other entered his house and started to beat the complainant party. Consequently, brother of complainant, namely, Faiz Ahmed, fell down due to severe injuries. The motive behind the occurrence was land dispute. With these allegations the appellant and his co-accused were booked in case FIR No. 549/2009, registered at police station Liaqatpur, District Rahim Yarkhan.
3. Leave to appeal was granted in this case in order to reappraise the evidence and with the assistance of the learned counsel for the parties we have undertaken that exercise.
4. After hearing the learned counsel for the parties and going through the record, we have observed that the occurrence in this case had taken place after dark and no independent proof had been produced by the prosecution regarding availability of electric light at the spot. In the FIR, 13 culprits, including the present appellant, had been nominated whereas 7/8 other culprits had been described as unknown. The motive set up by the prosecution was based upon land dispute between the parties and, thus, the said motive cut both ways. If the said background could provide a motive to the accused party to launch such a horrific attack on the complainant party, then the same motive could equally push the complainant party to spread the net very wide so as to falsely trap some innocent members of the accused party. The upsetting part of the ocular account is that on the basis of same statements made by the eyewitnesses, co-accused Muhammad Iqbal, Imtiaz, Riaz Ahmed, Sahib Yar, Shabir Ahmed, Muhammad Sadiq, Muhammad Nawaz, Abdul Sattar, Muhammad Ajmal, Shaukat Ali had been acquitted by the Courts below despite the fact that the abovementioned eyewitnesses had tarnished the said co-accused with the same brush. When 12 co-accused attributed the role of causing injuries to the deceased and other members of the complainant party had been acquitted in this case, it was incumbent upon the Courts below to look for independent corroboration to the ocular account before convicting and sentencing the present appellant. In this regard we note that the appellant was allegedly armed with ‘Sota’ at the time of occurrence and caused injury on the skull of the deceased with the said ‘Sota’ and the same had also been recovered from his possession but it is astonishing and disturbing to observe that the appellant was not confronted with the said piece of evidence at the time of recording his statement under Section 342, Cr.P.C. rather the record shows that the following question was asked:
“It is further in the prosecution evidence that while in police custody, you himself brought out the crime weapon i.e. hatchet P.3, and presented to the I.O. who took into possession vide recovery memo Ex.P.D in presence of the recovery witnesses. The PWs then proved the same against you in the witness-box. What do you say in this respect?”
The law is settled by now that if a piece of evidence or a circumstance is not put to an accused person at the time of recording his statement under Section 342, Cr.P.C. then the same cannot be considered against him for the purpose of recording his conviction.
5. The High Court observed that the complainant party had falsely implicated numerous innocent individuals m the current case. Consequently, in the absence of any independent corroboration
or confirmation of the allegations leveled against the appellant, particularly when some co-accused who were attributed the same roles have already been acquitted by the Courts below, we are compelled to observe that the complainant party had no regard for the truth and the eyewitnesses produced by it had been established to be untruthful regarding many innocent persons who had been implicated by them and who had subsequently been acquitted. In the case of Khizar Hayat v State (PLD 2019 SC 527) this Court has determined that witnesses found to be false in a material aspect are not to be trusted regarding other aspects they have deposed about.
6. For the aforesaid discussion, the convictions and sentences of appellant recorded and upheld by the Courts below are set aside and he is acquitted of the charge by extending him the benefit of doubt. The appellant is on bail, therefore, his bail bonds stand discharged.
(A.A.K.) Appeal allowed
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