Full Judgment Text & Judicial Ruling

2023 M L D 899 [Lahore (Multan Bench)] Before Sohail Nasir, J ALLAH DITTA and 2 others---Appellants Versus The STATE and others---Respondents Criminal Appeal No. 1218-J and Criminal Revision No. 319 of 2017, heard on 2nd November, 2021. (a) Penal Code (XLV of 1860)--- ----Ss. 302, 365, 109, 148 & 149---Qatl-i-amd, kidnapping or abducting with intent to secretly and wrongfully confine person, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Chance witnesses---Scope---Accused were charged for committing murder of the son of the complainant after kidnapping him---Motive behind the occurrence was a dispute between relatives---Ocular account of the case revolved around the testimony of complainant, wife of deceased and an eye-witness---Eye-witness had been proved to be a chance witness despite his best efforts to claim otherwise---Said eye-witness in the very first line of cross-examination admitted that he was the resident of a place which was at distance of about 10/15 kilometers from venue of crime---Although, said witness stated that he came one day earlier in the village to see his relatives/complainant etc. but he completely failed to show any strong reason which might have convinced the Court that on the day of occurrence he was present at venue of crime---Relatives of said witness might have been at venue of crime but that fact alone could not be considered as a valid and good reason given he was a witness in the case of capital charge---Said witness was running the shop in his village, so keeping in view nature of his work there was no justification for him to be present at crime scene---Dishonesty of said witness was evident from his statement that despite the fact he was resident of other place which he admitted in cross-examination, he gave his address in his particulars as of venue of crime---Same position was with reference to complainant who although was the resident of venue of crime but still had a challenge to establish his presence there---Admittedly, complainant was driver by profession and for the last 40 years he was working with an employer who was the resident of a place at a distance of 2.5 Kilometers---Complainant admitted in cross-examination that he used to reside at the Dera of his employer for the last about 40 years---Complainant never claimed that he used to return to his house every day---If it was believed that complainant had to be present in the house in evening as claimed by widow of deceased, it meant that in the morning he was supposed to go at the place of his duty---Considering that fact it could be easily understood that to work at the land was not his routine so he was under obligation to offer an acceptable reason for his presence in the field on the day of occurrence but the position was otherwise---Reverting to the statement of widow of deceased, it was proved that she at the most was a witness of abduction of her husband because thereafter she was sent to her home---Said witness, therefore, did not witness that how and in what manner subsequent to abduction deceased was done to death by the assailants---Said fact that she went to her house after abduction was conceded by all the private witnesses of the case---Statement of widow of deceased was also contradicted by the first Investigating Officer, when she stated that her statement was recorded in police station but it was denied by the Investigating Officer---Occurrence took place at 08:20 am and complaint was recorded by Police Officer at 09:00 am who before completion of said document had prepared the application for post mortem examination and inquest report, as evident from his endorsement and sent the dead body to the hospital through Police Constable---Hospital was not at a considerable distance as according to Police Constable he arrived there at about 11:00 a.m. but that position was seriously in conflict with the statement of Medical Officer who in his examination-in-chief categorically said that dead body was received in hospital at 01:30 p.m. and he conducted the autopsy at 02:20 p.m.---Said important fact of the case had confirmed the opinion of the Court that the eye-witnesses were not present at crime scene---Said fact, therefore further established that even the complaint was not recorded at the given time, which finally indicated some foul play in prosecution's case---Circumstances established that the prosecution had failed to prove its case beyond reasonable doubt against accused persons---Appeal against conviction was allowed, in circumstances. (b) Penal Code (XLV of 1860)--- ----Ss. 302, 365, 109, 148 & 149---Qatl-i-amd, kidnapping or abducting with intent to secretly and wrongfully confine person, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Unnatural conduct of the eye-witnesses---Accused were charged for committing murder of the son of the complainant after kidnapping him---Deceased was not a stranger or alien to the eye-witnesses but their own blood, so what they were expected to do naturally at the time of occurrence, they did not do so---Complainant during entire occurrence did not try to interfere to rescue his real son from the clutches of the assailants---No doubt that according to the allegations, the assailants were eight in numbers and armed with Toka/Dandas etc. but in such a situation fear could not sustain throughout because the natural reaction of real father, finding the life of his son in danger, had to be in a way to intercept or to challenge the accused persons for the purpose of saving his life---Complainant stated that after the occurrence when he lifted his son, his hands and clothes were smeared with blood and he produced those clothes before the Investigating Officer when he met him for the first time but that fact was not supported from the statement of Investigating Officer---Similarly, widow of deceased although maintained that she scuffled with assailants and her clothes were torn but even those clothes were not produced before the Investigating Officer in support of her version---Unnatural conduct still continued because none of the private witnesses bothered to inform the police which fact they admitted and even Investigating Officer categorically replied that none from the complainant party informed the police about the occurrence---If eight persons armed with weapons emerged in the field, where complainant etc. and deceased were working and their ultimate object was to eliminate deceased, question was why he was taken to the house of accused that was at a distance of about seven acres from there---Prosecution had no valid argument or explanation for this---Circumstances established that the prosecution had failed to prove its case beyond reasonable doubt against accused persons---Appeal against conviction was allowed, in circumstances. (c) Penal Code (XLV of 1860)--- ----Ss. 302, 365, 109, 148 & 149---Qatl-i-amd, kidnapping or abducting with intent to secretly and wrongfully confine person, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Place of occurrence doubtful---Accused were charged for committing murder of the son of the complainant after kidnapping him---About place of occurrence, there was serious doubt in prosecution's case---As evident from FIR murder took place in the house of accused whereas, column No.1 of the inquest report showed that the dead body was found at a tube well which place was at a distance of about five acres from the house of accused---Said entry was also shown to Investigating Officer who admitted it without any reservation and even Medical Officer conceded that when he received the inquest report the said entry was there---No doubt that in rough and scaled site plans, the dead body was shown in the house of accused but prosecution was under heavy burden to clarify that if it was the position then how in the inquest report the dead body was shown at tube well---Prosecution since its existence never challenged the entry in inquest report and even during trial did not ask the Trial Court for re-examination of the Investigating Officer for the purpose of any clarification---When prosecution's own case was suffering from self-contradiction, benefit thereof would go to accused persons and none else---Circumstances established that the prosecution had failed to prove its case beyond reasonable doubt against accused persons---Appeal against conviction was allowed, in circumstances. (d) Penal Code (XLV of 1860)--- ----Ss. 302, 365, 109, 148 & 149---Qatl-i-amd, kidnapping or abducting with intent to secretly and wrongfully confine person, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Ocular account and medical evidence---Conflict---Accused were charged for committing murder of the son of the complainant after kidnapping him---Prosecution case as depicted from complaint was that deceased had died then and there at the spot, whereas Medical Officer in his examination-in-chief specifically added that time between injuries and death was within about 1 hours---Said fact too negated the version of complainant and his witnesses---Circumstances established that the prosecution had failed to prove its case beyond reasonable doubt against accused persons---Appeal against conviction was allowed, in circumstances. (e) Penal Code (XLV of 1860)--- ----Ss. 302, 365, 109, 148 & 149---Qatl-i-amd, kidnapping or abducting with intent to secretly and wrongfully confine person, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence--- Benefit of doubt--- Recovery of crime weapons inconsequential---Scope---Accused were charged for committing murder of the son of the complainant after kidnapping him---In the present case, Toka was recovered at the instance of accused---Prosecution case was that accused got crime weapon recovered from his house but prosecution completely failed to prove exclusive possession or distinct knowledge of accused over the said weapon which was lying open in his house---Similarly, the recoveries of 'Sotas' at the instances of co-accused persons were of no importance because those were not blood stained---Circumstances established that the prosecution had failed to prove its case beyond reasonable doubt against accused persons---Appeal against conviction was allowed, in circumstances. (f) Penal Code (XLV of 1860)--- ----Ss. 302, 365, 109, 148 & 149---Qatl-i-amd, kidnapping or abducting with intent to secretly and wrongfully confine person, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Accused were charged for committing murder of the son of the complainant after kidnapping him---During the investigation four accused were declared innocent by the Investigating Officer and they were discharged by the Judicial Magistrate---Said position remained unchallenged from prosecution's side as they never took any exception to such declaration---Prosecution itself produced the Investigating Officer, who in his examination-in-chief, clearly asserted such fact---Meaning thereby that even prosecution was in agreement with the opinion of said Investigating Officer---Thus, the most important consideration before the Court was that discharge, in particular, of co-accused who was responsible for holding the leg of deceased and other co-accused who held deceased from his arm had again brought the case of the prosecution under clouds of heavy doubts---Circumstances established that the prosecution had failed to prove its case beyond reasonable doubt against accused persons---Appeal against conviction was allowed, in circumstances. (g) Criminal trial--- ----Benefit of doubt---Principle---Prosecution is duty bound to prove its case beyond reasonable doubt without taking any support from weakness from defence and upon failure to do so, benefit of doubt will go to accused not as a grace or concession but as a privilege. Prince Reehan Iftikhar Sheikh for Appellants. Muhammad Laeeq-ur-Rehman Khan, ADPP for the State. Badar Raza Gillani and Syed Qaiser Abbas Gillani for the Complainant. Date of hearing: 2nd November, 2021. JUDGMENT SOHAIL NASIR, J.---Fazal alias Faza, Muhammad Sadiq (real brothers) and Allah Ditta (appellants) along with Sher Muhammad, Pir Bakhsh, Fayyaz, Fateh Muhammad and Abid were tried in case FIR No.427 (PD) recorded on 21.07.2015 under sections 365/302/109/ 148/149, P.P.C. at Police Station Luddan District Vehari on the complaint of Riaz Ahmad (complainant) for the allegations of abduction and commission of Qatl-i-amd1 of Tanvir Riaz (son of complainant). On conclusion of trial vide judgment dated 31.05.2017 passed by the learned Additional Sessions Judge Vehari, all the appellants were convicted under sections 302(b)/34, P.P.C. and sentenced to imprisonment for life each. They were also ordered to pay Rs.200000/- (two lacs) each as compensation to the legal heirs of deceased in terms of section 544-A, Cr.P.C. In default of payment of compensation, they were ordered to further undergo six months' SI each. Benefit of section 382(B)2, Cr.P.C. was also extended to them. On the basis of same judgment all remaining accused were acquitted from the case. The learned trial court further held that charges under sections 365/109/148/149, P.P.C. were not proved. 2. On the strength of Criminal Appeal (1218 of 2017), appellants have challenged their convictions, whereas pursuant to Criminal Revision (319 of 2017) complainant has asked for enhancement of sentences awarded to appellants. As both the matters are outcome of one and the same judgment hence being decided together by way of this single judgment. 3. Facts of the case are that Mubashir Ali Sub-Inspector (PW-10) on receipt of information of this occurrence arrived at Ahmadabad, where he recorded the statement (PD/1) of Riaz Ahmad (PW-6). He maintained that on 21.07.2015 at about 08:00 a.m. he along with his son Tanvir Riaz (deceased) and Salma Bibi (PW-7)/wife of Tanvir Riaz were busy in their fields and at that occasion Fazal alias Faza armed with 'Toka' Muhammad Sadiq, Sher Muhammad (empty handed), Allah Ditta having a pistol, Pir Bakhsh, Fayyaz, Fateh Muhammad and Abid all in possession of `Sotas' along with two unknown persons reached there; they forcibly abducted Tanvir Riaz; on hue and cry, Fayyaz Ahmad (PW-8) and Muhammad Sajjad (not produced) also attracted there; they chased the assailants and found that Tanvir Riaz was taken in the courtyard of the house of Fazil alias Faza where Sadiq and Sher Muhammad were holding right and left leg of Tanvir Ahmad respectively whereas, Allah Ditta and Pir Bakhsh were holding Tanvir Riaz from his arms; Fazil alias Faza by giving repeated blows of Toka chopped out left leg of Tanvir Riaz; they/complainant etc. when made hue and cry, Fazal alias Faza gave further successive blows on both the arms of Tanvir; when they/complainant etc. tried to apprehend the assailants, they were succeeded to escape whereas Tanvir Riaz had died at the spot. The motive alleged by complainant was a dispute between relatives. 4. Mubashir Ali SI made an endorsement and sent the complaint to police station through Ali Sher Constable on the basis of which FIR (PD) was recorded by Muhammad Iqbal Head Constable (PW-2). During investigation Sher Muhammad, Fayyaz, Fateh Muhammad and Abid were declared innocent and discharged from the case vide an order dated 16.09.2015 passed by the learned Judicial Magistrate. 5. On conclusion of investigation report under section 173 (Challan) was submitted in Court. 6. On 20.01.2016 a charge under sections 365/302/109/148/149, P.P.C. was framed against appellants and their co-accused for which they pleaded not guilty and demanded their trial. 7. In support of its case prosecution had produced Dr. Akhtar Ali (PW-1), Muhammad Iqbal Head Constable/Moharrar and author of FIR (PW-2), Raja Usman/draftsman (PW-3), Mubarik Ahmad Constable who escorted the dead body for postmortem (PW-4), Allah Rakkha a witness who identified the dead body (PW-5), Riaz Ahmad/complainant and eye-witness (PW-6), Salma Bibi/eye-witness (PW-7), Fayyaz Ahmad/eye-witness (PW-8), Latif Ullah Sub-Inspector/second Investigating Officers (PW 9) and Mubashir Ali Sub Inspector/first Investigating Officer (PW-10). 8. Muhammad Sadiq (being won over), Mazhar and Shamim Constable (being unnecessary) were given up by the learned ADPP who after producing the reports of PFSA (PP & PQ) had closed prosecution's evidence. 9. In their common versions appellants maintained that it was an unseen and blind murder; deceased was a man of bad character involved in number of criminal cases of abduction and rape having enmity with different people. 10. Fazal alias Faza, Asif, Sadiq and Allah Ditta opted to produce defence evidence but remaining not. However, all did not opt to appear in terms of section 340(2), Cr.P.C. Later on, as evident from order dated 05.04.2017, appellants had withdrawn their desire to produce defence evidence. 11. Learned counsel for appellants contends that it is the duty of prosecution to prove its case beyond reasonable doubt but said duty has not been discharged in this case, therefore, the learned trial court wrongly convicted the appellants; statements of witnesses are in contradiction to each other; conduct of witnesses throughout the occurrence was abnormal who did not bother to interfere so as to save Tanvir Riaz; if appellants and their co-accused came with a specific object of murder of Tanvir Riaz, there was no reason to take him in the house of Fazal which was at the distance of about seven Acres; witnesses are inimical due to earlier recorded FIRs against deceased; crime scene in the house of Fazal alias Faza has not been established in view of the inquest report and statement of Investigating Officer; delayed post mortem examination and late arrival of dead body in the hospital also indicates that none of the witnesses were present at crime scene and in fact it was a blind murder. He finally maintains that the learned trial court did not appreciate the evidence in a proper manner and wrongly convicted the appellants. 12. On the other hand, both learned counsel for complainant and learned ADPP jointly contend that it is a case in which FIR was recorded without wastage of time, so there was no question of concoction, deliberation or consultation; in the promptly lodged FIR the manners and details of occurrence with the names of accused and their roles are fully described; without further wastage of time deceased was taken to hospital and in a short span of duration his post mortem was also conducted; medical evidence corroborates the version of complainant and eye-witnesses; defence in cross-examination was not able to shatter the credibility and worth of any of the eye-witness who were quite natural having no enmity or reason for false involvement of appellants and their co-accused; discharge of four accused by the learned Magistrate on the recommendations of Investigating Officer cannot stand in the way of prosecution who from day one specifically alleged involvement of all accused including the appellants and the witnesses also stated so while appearing in trial court; acquittal of five accused shall not be fatal for prosecution because that was on the basis of specific reasons; postmortem report has fully supported the story narrated by the complainant and his witnesses with regard to occurrence. All they finally maintained that as prosecution had proved its case beyond reasonable doubt, therefore, the appellants have been rightly convicted and they deserve the sentences of death instead of sentences awarded by the learned trial court. 13. HEARD 14. Ocular account of this case is revolving around the testimony of Riaz Ahmad (PW-6) Salma Bibi wife of deceased (PW-7) and Fayyaz Ahmad (PW-8). 15. Fayyaz Ahmad has been proved a chance witness despite his best efforts to claim otherwise. He in the very first line of cross-examination admitted that he was the resident of Moza Mehroo Baloch. This is not an undisputed fact that said place was at distance of about 10/15 Kilometers from venue of crime (Ahmadabad). He is the person who was having 5 kids and a shop in Moza Mehroo Baloch. Although, he stated that he came one day earlier in the village to see her relatives/complainant etc. but he was completely failed to show any strong reason which may convince this Court that on the day of occurrence he was present in Ahmadabad. His relatives may be in Ahmadabad but this fact alone cannot be considered as a valid and good reason when he is a witness in the case of capital charge. He was running the shop in his village Mehroo Baloch, so keeping in view nature of his work there was no justification for him to be present at crime scene. His dishonesty is evident from his statement that despite the fact he was resident of Mehroo Baloch which he admitted in cross-examination, he gave his address in his particular as of Moza Ahmadabad. 16. Same position is with reference to Riaz Ahmad/complainant who although is the resident of Moza Ahmadabad but still had a challenge to establish his presence there. Admittedly, he was driver by profession and for the last 40 years he was working with one Peer Mazhar Hussain Shah who was the resident of Luddan at a distance of 2.5 Kilometers. He admitted in cross-examination that he used to reside at the Dera of Peer Mazhar Hussain Shah for the last about 40 years who is owner of land measuring 5 squares and that other employees of Peer Mazhar Hussain Shah were also residing at the said Dera. He never claimed that he used to return to his house every day. For the sake of arguments, if it is believed that he had to be present in the house in evening as answered by Salma Bibi (PW-7), it means that in the morning he was supposed to go at the place of his duty. Considering this fact it can be easily understood that to work at the land was not his routine so he was under obligation to offer an acceptable reason for his presence in the field on the day of occurrence but the position is otherwise. 17. Reverting to the statement of Salma Bibi (PW-7), it is proved that she at the most was a witness of abduction of her husband because thereafter she was sent to her home. She, therefore, did not witness that how and in what manner subsequent to abduction Tanvir was done to death by the assailants. This fact that she went to her house after abduction is conceded by all the private witnesses of this case. Her statement is also contradicted by the first Investigating Officer Mubashir Ali SI (PW-10), when she stated that her statement was recorded in police station but it was denied by the Investigating Officer. 18. Tanvir was not animal or stranger or alien for them but their own blood, so what they were expected to do naturally at the time of occurrence, they did not do. Riaz Ahmad during entire occurrence did not try to interfere to rescue his real son from the clutches of the assailants. No doubt that according to the allegations, the assailants were eight in numbers and armed with Toka/Dandas etc. but in such a situation fear cannot sustain throughout because the natural reaction for real father, finding the life of his son in danger, had to be in a way to intercept or to challenge the appellants and accused for the purpose of saving his life. He stated that after the occurrence when he lifted his son, his hands and clothes were smeared with blood. He claimed that he produced those clothes before the Investigating Officer when he met him for the first time but that fact is not supported from the statement of Mubashir Ali SI (PW-10). 19. Similarly, Salma Bibi who was the real wife of deceased although maintained that she scuffled with assailants and her clothes were torn but even those clothes were not produced before the Investigating Officer in support of her version. 20. The unnatural conduct still continues because none of the private witnesses bothered to inform the police which fact they admitted and even Mubashir SI (PW-10) categorically replied that none from the complainant party informed the police about this occurrence. 21. It is too not understandable that if eight persons armed with weapons emerged in the field, where complainant etc. and deceased were working and their ultimate object was to eliminate Tanvir Riaz, why he was taken to the house of Fazal alias Faza that was at a distance of about 7 Acres from there? Prosecution has no valid argument or explanation in this context. 22. Even about place of occurrence, there is serious doubt in prosecution's case. As evident from FIR murder took place in the house of Fazal alias Faza (appellant) whereas, column No.1 of the inquest report (PB) shows that the dead body…

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