PLJ 2026 Cr.C. (Note) 8
[Lahore High Court, Lahore]
Present: Sadaqat Ali Khan, J.
versus
STATE etc--Respondents
Crl. A. No. 1698 & Crl. Rev. No. 978 of 2015, heard on 1.12.2020.
Pakistan Penal Code, 1860 (XLV of 1860)--
چیلنج-- شک کی کمی-- محرک-فصلوں کو تباہ کرنے پر تبدیلی-- - دونوں چشم دید گواہوں نے فصل کی کٹائی میں مدد بڑھانے کے لیے اس کی کال پر متوفی سے ملاقات کی ہے - - دونوں موقع پر گواہ تھے لیکن اپنی بیان کردہ وجوہات کے ساتھ واقعہ کی جگہ پر اپنی موجودگی قائم کرنے میں ناکام رہے ہیں - واقعہ کا محرک ہے ؛ موجودہ واقعہ سے ایک ہفتہ قبل ، اپیل کنندہ اور متوفی نے اپیل کنندہ کی بکریوں کے ذریعہ متوفی کی فصل کو تباہ کرنے پر جھگڑا کیا تھا لیکن ٹھوس شواہد کے ذریعے ثابت نہیں ہو سکا اور اسے ٹرائل کورٹ نے صحیح طور پر مسترد کر دیا ہے ۔-جرم خالی ہونے کی عدم موجودگی میں اپیل کنندہ کی طرف اشارہ کرنے پر رائفل کی بازیابی غیر اہم ہے اور اسے ٹرائل کورٹ نے اعتراض شدہ فیصلے کے پیراگراف 24 میں درست طور پر مسترد کر دیا ہے ۔
----S. 302(b)--Qatl-e-amd--Conviction and sentence--Challenge to--Benefit of doubt--Motive--Altercation on destroying crops--Both eye-witnesses have statedly visited deceased on his call to extend help in harvesting crop--Both were chance witnesses but have failed to establish their presence at time of occurrence at place of occurrence with their stated reasons--Motive of occurrence is; one week prior to present occurrence, appellant and deceased had altercation on destroying crop of deceased by goats of appellant but could not prove through solid evidence and has rightly been discarded by trial Court--Recovery of rifle on pointing out of appellant in absence of crime empties is inconsequential and has rightly been disbelieved by trial Court in Para 24 of impugned judgement. [Para 4 & 5] A, B & C
2014 SCMR 1698.
Pakistan Penal Code, 1860 (XLV of 1860)-
S. 302 (b)- شک کا فائدہ-یہ قانون کا طے شدہ اصول ہے کہ شک کا فائدہ دینے کے لیے ، یہ ضروری نہیں ہے کہ شک پیدا کرنے والے حالات ہوں-اگر کوئی ایسا حالات ہے جو ملزم کے جرم کے بارے میں سمجھدار ذہن میں معقول شک پیدا کرتا ہے ، تو وہ اس کے فائدے کا حقدار ہوگا ، فضل یا رعایت کے طور پر نہیں بلکہ حق کے طور پر ۔
----S. 302(b)--Qatl-e-amd--Benefit of doubt--It is settled principle of law that for giving benefit of doubt, it is not necessary that there should be 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 6] D
M/s. Muhammad Irfan Malik and Ch. Zulfiqar Ali Hargan, Advocates for Appellant.
Mr. Sana Ullah, DPG for State.
Mr. Muhammad Usman Ali Gujjar, Advocate /vice counsel for Complainant.
Date of hearing: 1.12.2020.
Judgment
Appellant (Abdur Razzaq alias Malangi) has been tried by learned trial Court in case FIR No. 252 dated 13.05.2005 offences under Sections 302, 34, PPC PS Sadar, Kharian and was convicted and sentenced vide judgement dated 08.09.2015 as under:--
Abdur Razzaq alias Malangi (appellant)
u/S. 302(b), PPC Sentenced to imprisonment for life alongwith compensation Rs. 1,00,000/-payable to legal heirs of Muhammad Arshid deceased u/S. 544-A Cr.P.C.
Benefit of Section 382-B, Cr.P.C. was also extended in his favour.
2. Appellant has filed this appeal against his conviction whereas complainant Muhammad Akram has filed Crl. Revision for enhancement of his sentence which are being decided through this single judgment.
3. Heard. Record perused.
4. Muhammad Arshad was done to death on the seat of the tractor on 13.05.2005 at 6:00 p.m., FIR was lodged on the same evening i.e. 13.05.2005 at 7:50 p.m. on the statement of his brother Khan Mulak (since dead /did not appear before learned trial Court). It is mentioned in the FIR that complainant alongwith Ghulam Rasool (PW-12) and Muhammad Akram (PW-13) and deceased were going to home from their field on a tractor and trolley. Muhammad Arshad deceased was driving the tractor whereas rest of the persons were sitting in the trolley. When they reached in front of the house of the appellant on the street at about 6:00 p.m., appellant made fire shot with his riffle which hit on the chest of the deceased. Earlier both the PWs i.e. Ghulam Rasool (PW-12) and Muhammad Akram (PW-13) stated before learned trial Court in their statements recorded under Section 512, Cr.P.C. that they were sitting on the tractor beside Muhammad Arshad deceased at the time of occurrence but omitted the same before the learned trial Court against appellant which were duly confronted to them (Exh. DA and Exh. DB respectively). There is also a dispute regarding place of occurrence. Shan Elahi (PW-16) I.O. of this case specifically stated in his cross-examination that occurrence took place during harvesting season, place of occurrence is surrounded by agricultural land. Contrary to this, according to the complainant party occurrence took place on the street in front of the house of appellant. This controversy also creates doubt in the prosecution story. It is important to note here that Muhammad Aslam (PW-14) recovery witness of the tractor and trolley while appearing before learned trial Court stated that on 13.05.2005, tractor No. GTA-6984 was taken into possession from the place of occurrence, he stated in his cross-examination that today he has seen the tractor, at the time of occurrence both the number plates of the tractor were intact having above-said registration number but no such number plates are available today on the tractor. He admitted in his cross-examination that on the bumper of tractor, the names of Subhan Ali and Abdul Rehman were written. Shan Elahi (PW-16) also stated in his statement before learned trial Court that tractor bearing registration No. 6984/GTA was taken into possession. He also stated that dead body of Muhammad Arshad deceased was recovered from the seat of the tractor but the material evidence tractor has not been produced by the prosecution with the reason best known to it and produced another tractor without registration number before the learned trial Court to establish its claim that deceased sustained firearm injury while sitting on the tractor but failed to do so which creates doubt in the prosecution story. Shan Elahi, SI (PW-16) stated in cross-examination that he did not mention in the memo of recovery of tractor Exh. PG that blood spots were present on the tractor, mark of bullet also did not observe. Both the eye-witnesses have statedly visited Arshad deceased on his call to extend help in harvesting the crop. Both were chance witnesses but have failed to establish their presence at the time of occurrence at the place of occurrence with their stated reasons. Reliance is placed on case titled “Muhammad Rafique v. The State” (2014 SCMR 1698).
5. Motive of occurrence is; one week prior to present occurrence, appellant and deceased had altercation on destroying the crop of deceased by goats of the appellant but could not prove through solid evidence and has rightly been discarded by learned trial Court in Para 25 of the impugned judgment. Likewise, recovery of rifle on pointing out of the appellant in absence of crime empties is inconsequential and has rightly been disbelieved by learned trial Court in Para 24 of the impugned judgement.
6. In view of the above discussed circumstances, I entertain serious doubt in my mind regarding participation of the appellant in the present case. It is settled principle of law that for giving benefit of doubt, it is not necessary that there should be 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.
7. For the foregoing reasons, instant criminal appeal filed by the appellant (Abdur Razzaq alias Malangi) is accepted, his conviction and sentence awarded by learned trial Court through the impugned judgment are hereby set aside. Appellant is acquitted of the charges. He is directed to be released forthwith, if not required in any other case.
8. In view of the above decision, Crl. Revision filed by Muhammad Akram for enhancement of the sentence of appellant having become infructuous is disposed of.
(A.A.K.) Appeal accepted
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