Full Judgment Text & Judicial Ruling

2022 P Cr. L J Note 82 [Lahore] Before Muhammad Amjad Rafiq, J MUHAMMAD NAZIM and others---Appellants Versus The STATE and others---Respondents Criminal Appeal No. 105079-J, Criminal Revision No. 105522 and P.S.L.A. No. 105523 of 2017, heard on 1st February, 2022. (a) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Accused was charged for committing murder of son of the complainant by firing---Motive was that accused was in love with the lady to whom deceased was going to marry and due to that grudge he committed murder---Complainant appeared into the dock admitting that house of co-accused was situated at a distance of one furlong from his house---Complainant during examination-in-chief stated that when they were going to City Police Station, they found accused persons which fact showed that the complainant already knew the unknown accused yet he opted not to nominate them---Said witness during cross-examination admitted that he did not narrate the description of features of unknown accused persons---Such facts which were the very basis of prosecution case were disbelieved by the Trial Court casting a serious doubt on the story of prosecution---Circumstances established that the prosecution had failed to prove its case beyond any shadow of doubt---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court. (b) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Presence of complainant at the spot doubted---Scope---Accused was charged for committing murder of son of the complainant by firing---There was a serious issue about the presence of witnesses at the place of occurrence---Star witness for the prosecution was complainant, he was father of the deceased though narrated the occurrence in examination-in-chief to make it confirmable to the facts stated in the FIR as well as in his supplementary statement---Complainant stated that he filed an application for registration of FIR yet that fact needed to be evaluated in the light of evidence put forth through his statement---Complainant deposed during cross-examination that he had written an application for lodging of FIR at hospital where there was a person from whom he got the application written---Said witness further deposed that his three sons were alive, one of his son was police official---All such sons duly participated in the Mehndi ceremony and after occurrence they all brought the deceased to the hospital---Complainant admitted that he had not asked any of his sons to write an application for lodging of FIR---Witness further admitted that an Advocate was his son-in-law, his one of his sons was middle pass while the other two were matriculate---Witness had not asked his sons to bring pencil and paper for writing the application and himself approached the nurses for paper and pencil---Application was written at about 01:00 a.m. to 01:15 a.m. and finally deposed that he could not tell with certainty that from whom an application for lodging of an FIR was written---Such facts rather indicated his absence at the place where he was trying to justify---Deposing of facts in such a manner was understandable when in later part of his cross-examination he categorically stated that he did not sign any document at hospital---Complainant further deposed that he did not take his son to Hospital which was near to Government Hospital---Complainant though deposed that Advocate, his son-in-law, was not invited in the Mehndi ceremony but in other breath, he deposed during cross-examination that said Advocate after having a dinner went to home, however, he did not accompany us for the hospital---Said fact was against the natural human conduct of a person whose brother-in-law had been murdered and he did not approach to the hospital which showed that there was something fishy in the matter which restrained such witness to come forward to depose---Said witness had made dishonest improvements during deposition before the Court---Such facts clearly stated that complainant was not present at the place of occurrence---Circumstances established that the prosecution had failed to prove its case beyond any shadow of doubt---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court. (c) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Contradictions in the statements of witnesses---Scope---Accused was charged for committing murder of son of the complainant by firing---Witness of ocular account had not stated any special reason about witnessing the occurrence in the manner as set through the prosecution case---Said witness was admittedly the son of complainant, that witness had made certain improvements which coloured his statement as tutored one---Said witness deposed that only 10/15 persons were in the function whereas other witness stated about 100/125 guests at the place of occurrence---Said witness expressed his ignorance while stating that he did not know who wrote the application for registration of case out of three brothers or his brother-in-law who was an advocate---Said witness further deposed that he did not know whether the application was scribed in the home or in the hospital or in police station---Witness went on to say that he did not remember the time when Mehndi function was started and when finished, he did not know the length and width of tent and also not aware of width of stage---Said witness admitted that on the stage one piece of Sofa set containing three seats were present, red colour carpet was also spread on the stage---Over all that witness had not stated any specific facts which could help the prosecution to build a case against the present accused---Circumstances established that the prosecution had failed to prove its case beyond any shadow of doubt---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court. (d) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence and crime empty---Reliance---Scope---Accused was charged for committing murder of son of the complainant by firing---Recovery witness stated that accused led to the recovery of pistol .30-bore from the outer wall of sheller near eastern Railway Phatak---Examination of recovery memo showed that it was recovered from the outer wall of Railway Phatak inside the bushes and that too by digging the earth---Recovery witness admitted that there were bushes of reeds at the place of occurrence---Recovery in an open place was not of worth reliance for the prosecution---Said witness admitted that fields were situated near the place of recovery, people could easily walk through from said fields---Witness admitted that he did not mention the colour of shopper---Witness admitted that Thanedar did not call the owner as well as employees of the Sheller---Recovery witness stated that recovery was effected at 12.00 p.m., whereas Investigating Officer did not depose about time of recovery, rather during cross-examination deposed that he had shown the arrest of accused---Such facts threw light that pistol was planted---Recovery in the case had not been proved, therefore, positive report of Forensic Science Agency was not useful for the prosecution even otherwise when the witnesses had not been found present at the place of occurrence and their testimony was not believable---Mere on the basis of recovery accused could not be convicted---Circumstances established that the prosecution had failed to prove its case beyond any shadow of doubt---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court. (e) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Medical evidence---Scope---Accused was charged for committing murder of son of the complainant by firing---Medical evidence was not furnished by the concerned doctor who had conducted the post-mortem examination rather record keeper appeared, who stated that concerned doctor had died and produced the original record of post-mortem---Oral statement with respect to contents of document was not given by any expert witness, therefore, question of description of injury, its angle or trajectory and presence of burning remained an unanswered story---Opinion of doctor could only be given by the said doctor as per Art. 71 of Qanun-e-Shahadat, 1984---Secondary evidence for doctor should have been given by another doctor/expert in order to assist the Court to understand the nature of injuries---Even post-mortem was conducted on the next morning with a delay of around 8 hours without any plausible explanation---No time of receiving the dead body in the mortuary was mentioned in the post-mortem report---Question of targeted or accidental fire could also not been explained which was the job of expert only---Prosecution had not produced any expert for explanation---Medical evidence had no support for prosecution--- Circumstances established that the prosecution had failed to prove its case beyond any shadow of doubt---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court. (f) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Motive was not proved---Scope---Accused was charged for committing murder of son of the complainant by firing---Motive was that accused was in love with the lady to whom deceased was going to marry and due to that grudge he committed such occurrence---Motive in the case though was alleged but no effort was made to produce the relevant evidence---Investigating Officer when appeared as Court witness deposed that he had inquired from someone who stated that deceased was his Bhanja, he and his daughter had no connection with accused and no negotiation about demanding the hand of girl was ever made by accused---Investigating Officer also admitted that he never recorded the statement of girl or her family members to know their version about the motive part---Finally concluded that in his investigation none of the Mohaladar appeared before him in support of motive---Thus, prosecution had failed to prove motive of the alleged occurrence---Circumstances established that the prosecution had failed to prove its case beyond any shadow of doubt---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court. (g) Criminal trial--- ----Benefit of doubt---Principle---If a single circumstance creates a reasonable doubt in a prudent mind regarding guilt of the accused, benefit of the same must be granted to the accused and that the accused will be entitled to the benefit of such doubt not as a matter of grace, but as matter of right. State v. Ahmed Omar Sheikh 2021 SCMR 873 rel. Hafiz Naimat Ullah for Appellants. Miss Noshe Malik, Deputy Prosecutor General for the State. Nasir-ud-Din Khan Nayyar and Haider Mushtaq Pasha for the Complainant. Date of hearing: 1st February, 2022. JUDGMENT MUHAMMAD AMJAD RAFIQ, J.---Prosecution fixed the allegation on the appellant Muhammad Nazim for murder of Rashid Mehmood. Though about the death of the deceased an FIR has already been registered bearing No.101 dated 25.04.2014 under sections 302 and 34, P.P.C. at Police Station City Farooq Abad, District Sheikhupura but he was tried in private complaint titled "Muhammad Ilyas v. Muhammad Nazim and others" and was finally convicted and sentenced by the learned trial court vide judgment dated 30.10.2017 as under:- "Imprisonment for life under section 302(b), P.P.C. with compensation of Rs.50,000/- under section 544-A, Cr.P.C., in default thereof, shall further undergo six months simple imprisonment. Benefit of section 382-B, Cr.P.C. was extended to him." 2. Complainant has preferred Criminal Revision No.105522 of 2017 seeking enhancement of sentence of the respondent No.2 and P.S.L.A. No.105523 of 2017 against acquittal of respondents Nos.2 to 4 therein which are also being decided through this common judgment. 3. On 25.04.2014 at 01:00 a.m. it was Mehndi ceremony of Rashid Mehmood (deceased) when Muhammad Nazim (appellant), Ehsan Anwar, Waqar Shahid and Imran while armed with their respective weapons emerged there on two motorcycles. On raising Lalkara by co-accused Ahsan, Imran and Waqar; appellant Muhammad Nazim fired with his pistol hitting at right eye of Rashid Mehmood. They attended Rashid Mehmood whereas accused succeeded to decamp therefrom. However, Rashid Mehmood though was escorted to DHQ Hospital but he succumbed to the injuries. Motive carried by prosecution was that appellant Muhammad Nazim was in love with the lady to whom Rashid Mehmood was going to marry and due to this grudge he committed such unfortunate occurrence. 4. Initially regarding the occurrence FIR supra was registered but the complainant being dissatisfied to the investigation filed instant private complaint on 23.05.2015 after about thirteen months. After cursory statements of witnesses four accused persons were summoned to face the trial. Prosecution produced as many as four PWs and court summoned eight CWs in the case. Main reliance of prosecution was on the statements of complainant Muhammad Ilyas (PW-3), Muhammad Sajjad (PW-4) for ocular account. Imran Shahid, Record Keeper of DHQ Hospital appeared as (CW-5) for secondary evidence on behalf of Dr. Muhammad Afzal (late) who conducted autopsy on the dead body of deceased and Muhammad Akram S.I./I.O. appeared as (CW-6). After close of prosecution evidence accused persons were examined under section 342, Cr.P.C. wherein they have controverted all the allegations levelled against them and pleaded their innocence, however, in response to a question that why this case against you and why PWs deposed against you? the relevant response of the appellant was as under:- "The PWs are closely related inter se and to that of deceased. PWs has (sic) falsely deposed against me on asking of complainant. As a matter of fact, I had established a cloth shop in Sheikhupura and my parents are alive. We are nine brothers and sisters. Two days prior of marriage of Rashid, Numan and Rizwan visited me for the purpose of hiring the eunuchs due to the reason of marriage of Rashid as I had previously called eunuchs on the marriage of my cousins. Yaseen etc. used to hire the eunuchs from Imran and many of is acquinters (sic) visited him at the time of maghrib and we four including me, Numan, Imran and Rizwan visited eunuchs who told us that less money is paid to them at Farooqabad whereas more disturbance is created. Imran had given a guarantee to them and satisfied them by making phone call to visit on his responsibility, thereafter we returned. Rashid, his brother Shahzad and Bhabi had also come Sheikhupura for making purchases. We after finishing our job accompanied them along with Rizwan and Numan. On the night of Medhi (sic) at about 09:30 p.m. after closing my shop I went to my home and after changing clothes and getting fresh went to Shadi Hall where at 09:45 night I called Imran to come at marriage hall as such he also came there. I also called Numan through phone call and inquired about his place of residence who replied that he will also come to shadi hall and at that time people were taking their meal, we also started taking meal. In the meanwhile Sajjad and his elder brother came to us. Sajjad and his brothers (brothers of Rashid) came to us and inquired that if we need anything more for eating, we informed him that we have taken our meal and in the meanwhile their second brother who also came there and inquired about meal. After taking the meal when we were free and after freeing from shadi hall we went in adjoining house of Rashid who opened Bathik for our sitting and at that time his cousins were also present there. We were taking wine while sitting there which was brought by Rizwan and Ashfaq in the Bathik. We drank the wine, Numan asked us to enquire about the eunuchs on phone who have not arrived and Imran phoned the eunuchs by using mobile phone who came there after 15 minutes. The eunuchs also came in Bathik and drink wine and the stage was prepared in nearby tents and after reaching eunuchs started their program which continued for about one and half hours. The servants of complainant's shop brought local brand of wine and during the dancing I and Numan again took liquor and became extreme state of intoxicating. Waqar was sitting after interval of one chair with me. I took pistol from him and asked that I may fire with it. I while standing my hand fired but bullet struck in the chamber and when I was unbolting the bullets from the chamber the second bullet suddenly went into the chamber and fire went off. All the people were dancing at that time brother of Rashid came there and informed that his brother has received bullet fire-shot. We run from there. I had no intention to harm anyone it was unfortunate accident Rashid and we all were friends and I was celebrating along with him and others his Mehndi ceremony as evident by recorded movie clips saved in memory card P-8. Complainant got lodged false FIR after concocting false story and concealing true facts against me." After the close of trial, three accused stood acquitted whereas present appellant was singled out and was convicted as fore cited. 5. Learned counsel for the appellant states that prosecution has failed to prove the presence of PWs at the crime scene which was a nuptial rites function wherein accused/appellant has participated as a friend; hitting of fire to deceased is a mystery remained unsolved. Twisting of story by prosecution inched a further with consulted private prosecution, full of flaws and replete with contradiction which was duly exposed through video clips. There is no question to see the defence version, until the prosecution successfully arrows the accused. 6. On the other hand, learned Deputy Prosecutor General has supported the judgment with a view that there was no difference in story of State case and one put forth through private prosecution. Learned counsel for the complainant laid augmented and tight the circle round the role of accused/appellant as made a close ranged intentional fire carrying burning, which ruled out hypotheses of accidental fire; presence of PWs was acclaimed intact and natural in the sense that it was the function of complainant party; memory card without expert report carries no value. 7. Respective contentions of proponents were heard; record perused. 8. Prosecution commenced with two stances, the stance of conspiracy hatched by Muhammad Nazim (appellant), Waqar Shahid, Ehsan Anwar and Imran failed during the trial, such story has a direct connection with the motive part of the occurrence. The witnesses who confronted the accused person in the morning of 24.04.2014 were Abdul Jabbar and Muhammad Bilal who happened to be the paternal and maternal nephews of the complainant. Muhammad Bilal was not produced during the trial; however, Abdul Jabbar entered appearance as PW-1 and stated about the story of conspiracy that all four accused persons told him that Rashid deceased is going to marry with the love of Muhammad Nazim accused/appellant, therefore, he has to face the music. He admitted during cross-examination that he already knew the fact that Mehndi ceremony of Rashid deceased is to be taken place on the same evening. He admitted that Muhammad Nazim did not reveal to him the name of girl with whom he was in love, however, witness volunteered the name of girl but admitted that he did not reveal the same to the Investigating Officer. He also admitted that upon hearing the conspiracy and threat made by Muhammad Nazim he did not make any call on 15 or reported the matter to the police and it is also admitted fact that he did not inform the complainant at that very moment, the activity to be done by Muhammad Nazim. Muhammad Ilyas, complainant (PW-3) appeared into the dock admitted that house of accused Imran is situated at a distance of one Furlong from his house. He during examination-in-chief stated that on 26.04.2014 when they were going to City Police Station, they found Waqar Shahid, Imran, Ehsan Anwar and he identified them as such along with Muhammad Nazim which fact shows that the complainant already knew the unknown accused yet he opted not to nominate them. He during cross-examination admitted that he did not narrate the description of features of unknown accused persons; such facts which are in the very basis of prosecution case were disbelieved by the trial Court casting a serious doubt on the story of prosecution which later developed on the basis of this conspiracy. 9. Presence of PWs at the crime scene was mainly hit while contradicting them with some video clips saved in a memory card. Admissibility of memory card as evidence in the case is a question of prime consideration and novelty it maintains in the light of adverse claims requires a thorough examination of relevant provisions of law of evidence prevalent at the time and it has to be done before reappraising the entire evidence. The memory card P-8 was carrying clips of celebration on festive occasion of deceased's nuptial rites, touching some relevant facts of the case, it was produced by the accused persons during investigation which was available in the case bundle; copy whereof was provided to the accused under section 265-C, of Cr.P.C. by the Court concerned in the State case pursuant to an order of this Court passed in Criminal Revision No. 469/15 titled "Nazim Ali v. Additional District and Sessions Judge and others" which the complainant has not attached with his private complaint; therefore, investigating officer was directed to produce such memory card before the court so that copy of the same could be delivered to the complainant. This fact is incorporated in court's order dated 15.10.2015 and by virtue of order dated 19.10.2015, copy of it was delivered to the complainant. Such memory card was later used in the evidence for the purpose of contradiction of facts stated by the eye-witnesses. Investigating officer has not sent it for forensic analysis nor report is available in the case; a fact has also been brought on the record during cross-examination that one Malik Umair of Azad Movie maker was making the movie of the function. Now Question to be addressed in this case is as to whether such memory card can be used to rebut the facts stated by the PW during his evidence. Rebuttal can be in both ways, either to produce evidence by production of witnesses or the documents by the party at response or through contradicting the witnesses from the record of the case, either in the form of statements under sections 161 and 164, Cr.P.C. or any previously recorded deposition which was collected during investigation, affidavits, written statements, any agreement/contract or a document in the form of deed, last but not the least any electronic document. Such a document can only be used for the purpose of contradiction if they were duly produced in an investigative process and not otherwise. Reliance is on "Abdul Khaliq v. The State" (PLD 2011 Supreme Court 554) and "Yasir Imran alias Yasir Arafat v. Muhammad Ashraf and another" (2014 MLD 337) and there would be no objection about exhibition of such documents in the trial except statement under section 161, Cr.P.C. Memory card given to the accused under section 265-C, Cr.P.C. can validly be demanded by the accused in a case instituted on private complaint emanating from same FIR. Reliance is on cases reported as "Muzaffar Khan v. The State and others" (1977 PCr.LJ 937); "Aziz-ur-Rehaman v. The State" (PLD 1987 Lahore 245) and "Muhammad Ashiq and 2 others v. Muhammad Anwar and 2 others" (2005 YLR 933). 10. Second thought for prosecution to produce every evidence that could support or contradict the fact in issue is a rule dated back creeped in to the criminal justice system in the interest of justice in order to arrive at right conclusion was later transformed into a mechanism of selecting relevant supportable evidence so as to fix the criminal liability straight without any ambiguity, yet the material evidence which though was collected from both the parties during investigation if not selected by the prosecution for production before the court, it becomes an unused material. Law has developed that accused would have right to obtain record of such unused material so as to use it for the purpose of contradiction. The Honourable…

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