PLJ 2026 Cr.C. (Note) 15
[Lahore High Court, Lahore]
Present: Syed Shahbaz Ali Rizvi and Ch. Mushtaq Ahmad, JJ.
versus
STATE etc--Respondents
Crl. A. No. 598 of 2010, M.R No. 119 of 2013 & P.S.L.A No. 107 of 2010, decided on 26.2.2016.
Pakistan Penal Code, 1860 (XLV of 1860)--
S. 302 (b)-
- بغیر گواہ واقعہ - چار افراد موقع پر ہی ملزموں کو بچا نہیں سکے ، نہ ہی ہلاک ہوئے اور نہ ہی گرفتار کیے گئے ، حالانکہ ملزم تقریبا 70 سال کی عمر کا بزرگ شخص تھا ۔ - گواہوں کا طرز عمل واقع ہونے کی جگہ پر ان کی موجودگی کے بارے میں سوالیہ نشان کھڑا کرتا ہے - - کراس ایگزامینیشن میں شکایت کنندہ نے بتایا کہ جہاں متوفی کو موت کے گھاٹ اتار دیا گیا تھا اور جہاں سے متوفی کو اٹھایا گیا تھا اس جگہ کے درمیان کوئی ڈریگنگ مارک نہیں تھا - - انہوں نے مزید کہا کہ مذکورہ بالا مقامات کے درمیان - بارسیم کی فصل کو کوئی نقصان نہیں پہنچا - - گواہ نے مزید کہا کہ اس نے پولیس کے سامنے اپنے بیان میں لالٹین کی موجودگی کا ذکر کیا تھا لیکن اس کے بیان سے تصادم پر یہ اس طرح ریکارڈ نہیں پایا گیا - - لالٹین کی موجودگی کو بھی بعد میں متعارف کرایا گیا تاکہ یہ ظاہر کیا جا سکے کہ گواہ ملزم کی شناخت کرنے میں کامیاب تھے - - موقع پر چشم دید گواہوں کی موجودگی انتہائی مشکوک تھی - - گواہوں کی طرف سے پیش کردہ آکولر اکاؤنٹ اندرونی طور پر کمزور تھا اور اس سے اعتماد پیدا نہیں ہوا - - اس معاملے میں سزا پائیدار نہیں تھی کیونکہ استغاثہ اپیل گزار کے خلاف الزام کو معقول شک سے بالاتر ثابت کرنے میں ناکام رہا-اپیل کی اجازت دی گئی ۔
----S. 302(b)--Qatl-e-amd--Conviction and sentence--Challenge to--Unwitnessed occurrence--Four persons could not save, deceased nor apprehended accused persons at spot inspite of fact that Accused was an elderly person aged about 70-years--The conduct of witnesses raises a question mark about their presence at place of occurrence--Complainant in cross examination stated that there was no dragging mark in between place where deceased was done to death and place wherefrom deceased was lifted--He further stated that in between aforesaid places--Barseem crop was not damaged--The witness added that he had mentioned presence of Lantern in his statement before police but on confrontation with his statement it was found not so recorded--The presence of Lantern was also introduced later on in order to show that witnesses were able to identify accused--The presence of eye-witnesses at spot was highly doubtful--The ocular account furnished by witnesses was intrinsically weak and did not inspire confidence--Conviction in this case was not sustainable as prosecution failed to prove charge against appellant beyond reasonable doubt--Appeal allowed.
[Para 10 & 11] A, B, C & D
Ch. Zulfiqar Ali Advocate and Mr. Abid Hussain Sahi Advocate (defence counsel) for Appellants.
Mr. Gulzar Ahmad Khan Advocate for Complainant.
Rana Muhammad Shafiq, Deputy District Public Prosecutor, for State.
Date of hearing: 26.2.2016.
Judgment
Ch. Mushtaq Ahmed, J.--This judgment will dispose of Murder Reference No. 119/2013, Criminal Appeal No. 598/2010 filed by Ghulam Murtaza convict as well as P.S.L.A No. 107/2010 filed by complainant. Appellant was convicted by learned Additional Sessions Judge, Shorkot, District Jhang, in complaint case filed under Sections 302/34, PPC, Police Station Shorkot City vide impugned judgment dated 25.02.2010 and sentenced as under:
Death as Ta’zir under Section 302(b) and to pay
Rs. 1,00,000/-as compensation to the legal heirs of deceased as required u/S. 544-A, Cr.P.C. and in default of payment, to further undergo S.I for six months.
2. Prosecution case in brief is that complainant Zahoor Ahmad lodged FIR Ex-PB but feeling dissatisfied with findings of police, filed private complaint alleging that his relative Allah Ditta constructed his residential Dhari in Killa No. 5 Square No. 50 situated in chak No. 492/JB Tehsil Shorkot, District Jhang There was a dispute over turn of canal water between aforementioned Allah Ditta and accused Haq Nawaz who is also his relative. On the night of 19.04.2006 at about 10.00 p.m, he alongwith Zafar and Nawab, were present at the Dhari of said Allah Ditta for effecting compromise between Allah Ditta and Haq Nawaz. Allah Ditta and his son Azeem were also present there. In the meanwhile, both the accused Haq Nawaz and his son Ghulam Murtaza came there. They caught hold of Azeem deceased and took him to the field of Barseem. He and the PWs attempted to intervene and request him but accused Haq Nawaz and Ghulam Murtaza pulled out their Chhuries. Accused Haq Nawaz inflicted many Chhurri blows to Azeem hitting on his left side of chest. Accused Ghulam Murtaza gave two Churri blows to Azeem deceased which landed above and below his umbilicus, as a result whereof intestines of Azeem came out and he fell down. Then both the accused ran away alongwith their respective weapons towards their Dharis. They attended Azeem who succumbed to the injuries. He left Zafar and Nawab at the spot and proceeded himself to report the crime but police met him on the way to police station and he reported the matter for taking action against the accused persons.
3. After registration of the case, Noor Ahmad Khan, SI (CW-1) reached at the place of occurrence and during spot inspection, collected blood stained earth and lantern and took the same into possession vide recovery memos. He inspected deadbody, prepared injury statement and inquest report. He handed over the deadbody of deceased for postmortem examination. I.O. recorded statements of PWs under Section 161 Cr. P.C and started search for the accused. As per complainant, said SI/I.O thereafter conspired with the accused persons and did not try to arrest them. Ultimately, he arrested appellant Ghulam Murtaza on 28.04.2006 got effected recovery of Chhuri from him on 02.05.2006. Neither said I.O. tried to arrest accused Haq Nawaz nor he obtained his warrants of arrest, which constrained him to file the private complaint.
4. After procuring attendance of accused persons, charge was framed against appellant and his co-accused Haq Nawaz to which they pleaded not guilty and claimed trial. Prosecution examined nine prosecution witnesses and two CWs. Ocular account was furnished by Zahoor Ahmad complainant (PW-5) and Allah Ditta (PW-6).
5. PW-4 Dr. Muhammad Riaz SMO, conducted postmortem on the deadbody of Azeem and noted nine injuries. According to him, death was caused due to haemorrhage and shock resulting from injuries to vital organs i.e. heart and left lung. Injuries No. 2, 3, 6 & 8 were, therefore, sufficient to cause death in ordinary course of nature. All the injuries were ante-mortem and caused by sharp edged weapon. Probable time between injury and death was within five minutes while between death and postmortem was 8 to 24 hours.
6. Statements of appellant and his co-accused Haq Nawaz were recorded under Section 342, Cr.P.C in which they pleaded innocence. At conclusion of trial, appellant was convicted and sentenced as mentioned above whereas his co-accused was acquitted. Hence, instant reference as well as appeal.
7. Learned counsel for appellant contended that incident was unwitnessed which took place at night and the present appellant was falsely implicated with mala-fide intention; that postmortem was conducted with delay for the simple reason that accused were not known nor identified; that conduct of the witnesses being unnatural indicated that they were not present at the time of occurrence; that co-accused was granted clean chit on the same set of evidence, therefore, conviction recorded against appellant was not sustainable.
8. Conversely, learned Deputy District Public Prosecutor assisted by learned counsel for complainant has supported the impugned judgment on the ground that ocular account was supported by medical evidence and motive alleged against accused was also proved. It is further argued that appeal filed against conviction was liable to be dismissed whereas PSLA filed against acquittal of Haq Nawaz, father of appellant be accepted.
9. Arguments heard. Record perused.
10. Zahoor Ahmad (PW-5) and Allah Ditta (PW-6) are the witnesses who furnished ocular account of the incident which took place at 10.00 p.m on 19.04.2006 in the area of Chak No. 492/JB falling within territorial jurisdiction of Police Station Shorkot City at a distance of 24 kilometer. As per version of both the witnesses at the relevant time, complainant Zahoor Ahmad, Zafar son of Ahmad Bakhsh and Nawab son of Fazal alongwith Allah Ditta (PW-6) and his son Azeem (deceased) were sitting in front of Dhari of Allah Ditta when accused Haq Nawaz and his son Ghulam Murtaza came and caught hold of Azeem and took him towards crop of Barseem while dragging in presence of above mentioned four witnesses. They also attempted to rescue deceased Azeem but due to threats extended by the accused, they could not rescue him and thereafter both the accused inflicted Churri blows to Azeem on his chest and abdomen. Blow given were so serious that intestines of the deceased came out but both the accused after stabbing Azeem to death escaped with their respective weapons. None from the witnesses admittedly received even a scratch during the incident. The accused were not carrying firearms as per prosecution’s own showing, they were only armed with weapons like Churri/knives. Four persons could not save, the deceased nor apprehended the accused persons at the spot inspite of the fact that Haq Nawaz accused was an elderly person aged about 70-years. The conduct of the witnesses raises a question mark about their presence at the place of occurrence. It is prosecution case that CW-1 Noor Ahmad Khan SI was informed by complainant through application (Ex.PF) where-after he reached at the place of occurrence and prepared rough site plan (Ex.CW-1/A). In the notes given by him names of accused were not mentioned. In Note No. 4 of rough site plan, name of Murtaza appears to have been added lateron which is visible on the face of it indicating that rough site plan prepared by the I.O., at his first visit, did not contain name of accused Murtaza (appellant) when it was prepared. Name of second accused Haq Nawaz was also not mentioned in the rough site plan. Inquest report (Ex.PE) shows that nothing was found near the deadbody when it was prepared by the I.O. but later on Chappal/shoe was shown to be secured vide memo (Ex.PH) stating that accused Ghulam Murtaza left it at the spot while escaping. The reason stated for being present of the witnesses at the place of occurrence was a dispute over turn of water between Allah Ditta (PW-6) and Haq Nawaz (accused since acquitted) but to resolve that dispute Haq Nawaz was not called. He being a party to the dispute should had been invited to participate in the panchayat convened. Record reveals that complainant in cross examination stated that there was no dragging mark in between the place where the deceased was done to death and the place wherefrom the deceased was lifted. He further stated that in between the aforesaid places. Barseem crop was not damaged. The witness added that he had mentioned the presence of Lantern in his statement before the police but on confrontation with his statement (Ex.PF) it was found not so recorded. The presence of Lantern was also introduced later on in order to show that the witnesses were able to identify the accused. All the above noted facts and circumstances lead us clearly to draw an inference that it was an unwitnessed occurrence. The presence of eye-witnesses at the spot was highly doubtful. The ocular account furnished by the witnesses was intrinsically weak and did not inspire confidence.
11. For all the above reasons, in our view conviction in this case was not sustainable as prosecution failed to prove charge against appellant beyond reasonable doubt. We are not persuaded to uphold the conviction recorded by trial Court. Consequently. Criminal Appeal No. 598/2010 is allowed, conviction recorded by learned trial Court is set-aside, appellant Ghulam Murtaza is acquitted of the charge from this case, he be released forthwith if not required in any case. Murder. Reference No. 119/2013 is answered in negative and death sentenced warded to convict is not confirmed. For above recorded reasons, PSLA No. 107/2010 against acquittal of respondent Haq Nawaz is also dismissed.
(A.A.K.) Appeal allowed
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