Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: ABDULLAH VS Respondent: StateHonorable Justice Muhammad Amjad RafiqSardar Anait Ullah Khan Bhutta
2023 P Cr. L J Note 89 [Lahore (Multan Bench)] Before Muhammad Amjad Rafiq, J ABDULLAH---Appellant Versus The STATE and others---Respondents Criminal Appeal No. 1102 of 2019, heard on 17th February, 2022. (a) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---No justification provided for the presence of witnesses at the spot---Chance witnesses---Scope---Accused was charged that he along with his co-accused committed murder of the brother of the complainant by firing---Motive was that accused forbade his wife not to visit the house of her brothers and due to that grudge, they had committed the occurrence---Accused with one fire shot hitting on the belly of deceased had attended two witnesses against him who claimed to be the eye-witnesses of the occurrence---Name of one eye-witness was not mentioned in the site plan, when juxtaposed with his statement giving a thought of being not present at the place of occurrence---Said witness during cross-examination admitted that occurrence took place at the hotel which was 2 kilometers away from his house and similarly admitted that other witnesses were also living near him---Said witness stated that accused made effective fire shot while co-accused made two fires in the air---No empty was recovered from the place of occurrence and said witness also admitted that he did not collect any empty from the spot and further admitted that when police arrived at place of occurrence he did not indicate the point of empties to the police---Said witness did not know as to whether owner of hotel was associated in the investigation but in the other breath said that he was inquired---Though admitted that witnesses were sitting at the hotel when occurrence took place but deposed that dead body was lying in vacant plot and at the end his cross-examination had verified the fact again that he had permanent dwelling in the area and his house was 2 k.m. away from hotel and his story of taking tea at the hotel also belied from the fact when he admitted that there were many tea shops on the way from his house to hotel and volunteered, might be 30 to 35---Said witness had not stated any specific reason for his presence at the particular tea stall---Admittedly, deceased was Behnoi (brother-in-law) and accused was Sala (brother-in-law)---Witness when appeared stated that there was no dispute between deceased and both the accused---During trial the word dispute was further clarified in the cross-examination and it turned out to be a synonymous of enmity, so it stood clear that there was no enmity between the deceased and the accused---Said witness had also admitted that in the morning he was in his house which was 03-k.m. away from the hotel and deposed that they had no other purpose on the said day except to take tea and stated that he was unable to recall the numbers of chairs and tables inside the hotel and admitted that they were sitting there for 1⅓ hours and deposed a fact that he performed his prayers regularly and on the day of occurrence he offered Zohar prayer after occurrence---Said fact could not be accepted as true because reportedly occurrence took place at 03:00 p.m. and 03:00 p.m. was not the time of Zohar---Witness admitted that they had not chased the accused and remained at the place of occurrence---Said witness further stated that police arrived after about one hour when complainant had gone to police whereas complainant stated that police came at its own within 15-minutes---Witness was unable to explain that whose shop it was on the side of place of occurrence and also did not state some other basic information; however, there was doubt about the presence of these two witnesses at the place of occurrence---Said witnesses being chance witnesses could not establish their presence at the time or around the place of occurrence---Apparently, presence of these witnesses was doubtful---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court. [Para. 6 of the judgment] Mst. Rukhsana Begum and others v. Sajjad and others 2017 SCMR 596 rel. (b) 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 that he along with his co-accused committed murder of the brother of the complainant by firing---Medical evidence in the present case was scanty and doubtful---Post-mortem examination was conducted on the next day with the delay of about 17-hours---Head Constable/witness who escorted the dead body stated that he took the dead body on next day and did not state anything from where he had took the dead body---Said witness did not depose about time of dispatching the dead body nor explained any reason of such delay---Medical Officer when appeared in the dock stated that he observed one fire arm injury without blackening and burning---Site plan though showed presence of deceased where he received fire but no point was shown from where accused persons had made fire shot upon him and in fact when there was no point there was no question of inter-se distance between the accused and the deceased---Even Medical Officer had not observed any exit wound which showed that it was a distant fire which ruled out as targeted or aimed---Medical Officer had also discovered bullet from the body of the deceased which was handed over to the police but police had not sent it for testing or examination---Though there was no contradiction in medical yet circumstances including delay in conducting post-mortem examination made the prosecution story doubtful and also casting clouds on the presence of witnesses---Circumstances established that the prosecution had failed to prove the charge against the accused beyond any shadow of doubt---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court. [Para. 7 of the judgment] Asad Khan v. The State PLD 2017 SC 681 rel. (c) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Defence evidence---Accused was charged that he along with his co-accused committed murder of the brother of the complainant by firing---Though prosecution had not put owner of the hotel in the dock to confirm the factum of receiving fire by the deceased at the hands of accused but said witness appeared in the dock as defence witness and stated that he was present at the place of occurrence and had not seen the accused making fire at the deceased---Said witness had only seen the dead body lying on the ground and the final touch he made that he did not see any of the witnesses at that time and they did not attend his hotel on that day---Though said witness was cross-examined but nothing material was brought on record---Circumstances established that the prosecution had failed miserably to prove the charge against the accused beyond any shadow of doubt---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court, in circumstances. [Para. 8 of the judgment] (d) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Pistol was recovered at instance of accused---Reliance---Scope---Accused was charged that he along with his co-accused committed murder of the brother of the complainant by firing---Pistol though was shown recovered at the lead of the accused yet no crime empty was recovered to put a force in that piece of evidence, therefore, said recovery was inconsequential, in circumstances---Circumstances established that the prosecution had failed to prove the charge against the accused beyond any shadow of doubt---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court. [Para. 9 of the judgment] (e) 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 that he along with his co-accused committed murder of the brother of the complainant by firing---Motive as alleged by the prosecution could not be proved because no evidence was brought on record and eye-witness admitted that there was no dispute/enmity between accused and the deceased---Nothing was left to talk about motive anymore which was missing in the case---Prosecution had failed to establish the motive part---Circumstances established that the prosecution had failed to prove the charge against the accused beyond any shadow of doubt---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court. [Para. 10 of the judgment] Muhammad Ismail v. The State 2017 SCMR 713 rel. Sardar Anait Ullah Khan Bhutta for Appellant. Hassan Mahmood Khan Tareen, Deputy Prosecutor General for the State. Nemo for the Complainant. Date of hearing: 17th February, 2022. JUDGMENT MUHAMMAD AMJAD RAFIQ, J.---Abdullah, appellant carried a charge of committing murder of Ghulam Yasin, elder brother of the complainant and was prosecuted in case FIR No.155, dated 08.06.1999 registered under sections 302 and 34, P.P.C. at Police Station Kot Mubarak, District Dera Ghazi Khan and vide judgment dated 29.07.2015 the learned trial court convicted and sentenced him as under:- "Imprisonment for life under section 302(b), P.P.C. with compensation of Rs.2,00,000/- under section 544-A, Cr.P.C. in default thereof, to further undergo simple imprisonment for six months. Benefit of section 382-B, Cr.P.C. was also extended to him." 2. Through a written complaint (Ex.PD), murder of Ghulam Yasin was reported by bereaved brother, Allah Ditta, complainant (PW-5); his telltale that on 08.06.1999 at 03:00 p.m. he along with Ghulam Yasin deceased, Khameesa and Muhammad Ramzan was taking tea at the hotel of Nazar Hussain Chughta. Ghulam Yasin after taking tea went towards house, as and when he reached near the plot of Allah Bakhsh, suddenly Abdullah (appellant) and Ghulam Yasin (acquitted co-accused) armed with their respective pistols emerged there and Abdullah raised lalkara not to let Ghulam Yasin alive. Upon outcries of Ghulam Yasin (deceased) complainant along with witnesses attracted there and in their sight Abdulla, appellant made fire shot with his pistol which landed at abdomen of Ghulam Yasin who fell down and died there and then. Complainant along with witnesses tried to apprehend the accused but Ghulam Yasin accused made two aerial fires and made their escape good. Motive as alleged that Ghulam Yasin forbade his wife not to visit the house of her brothers/accused Abdullah and Ghulam Yasin and due to this grudge they have committed this unfortunate occurrence. 3. Matter was reported to the police resulting into registration of instant FIR, Zahoor Ahmad S.I. (PW-7) investigating officer visited the place of occurrence, examined the dead body, prepared injury statement, inquest report and dispatched the dead body to the mortuary for postmortem examination through Nazar Hussain/HC. During spot inspection, he collected blood stained earth and prepared rough site plan. On the following day Nazar Hussain constable handed over him last worn clothes of the deceased. On 18.06.1999 he arrested both the accused and at the time of arrest he got recovered pistol .30-bore alongwith five bullets from the Nepha of accused Ghulam Yasin whereas pistol 30-bore alongwith five cartridges were also recovered from the side pocket of Abdullah (appellant). After finding them guilty challan was put into the Court. Both the accused including appellant were charge sheeted to which they pleaded not guilty; prosecution led the evidence and produced as many as 08-witnesses in the case, however, mainly relied on Allah Ditta, complainant (PW-5), Khameesa (PW-6) for ocular account, Dr. Fayyaz Karim Leghari (PW-4) for medical evidence and Zahoor Ahmad S.I. (PW-7) for investigation. Prosecution also tendered report of Punjab Forensic Science Agency (Ex.PJ and Ex.PJ/1) and after close of prosecution evidence statements of accused under section 342, Cr.P.C. were recorded wherein all the evidence of prosecution was put to them, whereas in response to a question that why this case against you and why the PWs made statements to involve you? Abdullah, appellant has replied as under:- "This case is false. As a matter of fact, there was dispute between the complainant Allah Ditta and deceased Yaseen over the land which Yaseen had got in Tamleek from his father. Yaseen was targeted by some un-known assailants. The PWs were not present on the spot. They reached the spot after an hour of the injuries to Yaseen. I became known of this occurrence 15-20 minutes later. The complainant in order to swindle away the belongings and house of deceased, involved me and my brother so that we were unable to support out sister who was driven away by the complainant out of her house along with the children. We have been involved out of suspicion and enmity. The PWs are closely related inter se and as such made false statements." 4. After conclusion of trial Ghulam Yasin, co-accused was acquitted whereas the present appellant was convicted and sentenced forecited. 5. Heard. Record perused. 6. Accused/appellant with one fire shot hitting on the belly of deceased has attended two witnesses against him who claimed to be the eye-witnesses of the occurrence. The name of Allah Ditta (PW-5) is not mentioned in the site plan (Ex.PB), when juxtaposed with his statement gives a thought of being not present at the place of occurrence. He during cross-examination admitted that occurrence took place at the hotel of one Nazar Hussain Chughta which is 2-1/2 kilometers away from his house and similarly admitted that Khameesa (PW-6) and Ramzan were also living near him. He states that accused/appellant made effective fire shot while co-accused Ghulam Yasin made two fires in the air. As no empty was recovered from the place of occurrence and he also admitted that he did not collect any empty from the spot and further admitted that when police arrived at place of occurrence he did not indicate the point of empties to the police. He did not know as to whether Nazar Hussain was associated in the investigation but in the other breath said that he was inquired. Though admitted that they were sitting at the hotel of Nazar Hussain when occurrence took place but deposed that dead body was lying in vacant plot and at the end his cross-examination has verified the fact again that he had permanent dwelling in the area and his house is 21/4 k.m. away from Nazar Hussain Hotel and his story of taking tea at the hotel of Nazar Hussain also belied from the fact when he admitted that there were many tea shops on the way from his house to Nazhar Hussain Hotel and volunteered may be 30 to 35. He had not stated any specific reason for his presence at the particular tea stall. Admittedly deceased was Behnoi (brother-in-law) and accused/appellant Sala (brother-in-law). Khameesa (PW-6) when appeared stated that there was no dispute between deceased and both the accused. During trial the word dispute was further clarified in the cross-examination and it turns out to be a synonymous of enmity, so it stood clear that there was no enmity between the deceased and the accused. This witness has also admitted that in the morning he was in his house which is 03-k.m. away from Nazar Hussain Hotel and deposed that they had no other purpose on the said day except to take tea and stated that he is unable to recall the numbers of chairs and tables inside the hotel and admitted that they were sitting there for 1V2 hours and deposed a fact that he performs his prayers regularly and on the day of occurrence he offered Zohar prayer after occurrence that cannot be accepted as true because reportedly occurrence took place at 03:00 p.m. and 03:00 p.m. is not the time of Zohar. He admitted that they had not chased the accused and remained at the place of occurrence; further stated that police arrived after about one hour when Allah Ditta iad gone to police whereas Allah Ditta (PW-5) stated that police came at his own within 15-minutes. He was unable to explain that whose shop it was on the side of place of occurrence and also did not state some other basic information. There is a doubt about the presence of these two witnesses at the place of occurrence. They being chance witnesses could not establish their presence at the time of occurrence at or around the place of occurrence. Apparently, presence of these witnesses is doubtful. Reliance is placed on judgment reported as "Mst. Rukhsana Begum and others v. Sajjad and others" (2017 SCMR 596). 7. Medical evidence in this case is also scanty and doubtful. Postmortem examination was conducted on the next day at 10:00 a.m. with the delay of about 17-hours. Nazar Hussain 542/HC (PW-2) who escorted the dead body stated that he took the dead body on 09.06.1999 (next day) and did not state anything from where he has took the dead body. He did not depose about time of dispatching the dead body nor explained any reason of such delay. Dr. Fayyaz Karim Leghari (PW-4) when appeared in the dock stated that he observed one fire arm injury without blackening and burning and as per site plan though point No.1 showing presence of deceased where he received fire but no point was shown from where accused persons has made fire shot upon him and infact when there was no point there was no question of inter se distance between the accused and the deceased. Even doctor has not observed any exit wound which shows that it was a distant fire which rules out as targeted or aimed. Doctor has also discovered bullet from the body of the deceased which was handed over to the police but police has not sent it for testing or examination. Though there is no contradiction in medical yet circumstances including delay in conducting postmortem examination make the prosecution story doubtful and also casting clouds on the presence of PWs. Reliance is placed on judgment reported as "Asad Khan v. The State" (PLD 2017 Supreme Court 681). 8. Though prosecution has not put Nazar Hussain owner of the hotel in the dock to confirm the factum of receiving fire by the deceased at the hands of accused/appellant but said witness appeared in the dock as DW-1 and stated that he was present at the place of occurrence and had not seen the accused/appellant making fire at the deceased. He had only seen the dead body lying on the ground and the final touch he made that he did not see any of the PWs at that time and they did not attend his hotel on that day. Though he was cross-examined but nothing material was brought on record. 9. Pistol though was shown recovered at the lead of the accused yet no crime empty was recovered to put a force in this piece of evidence, therefore, this recovery in the circumstances is inconsequential. 10. Motive as alleged by the prosecution could not be proved because no evidence was brought on record and PW-6 when admitted that there was no dispute/enmity between accused and the deceases. Nothing is left to talk about motive any more which is missing in tnis case. Prosecution has failed to establish the motive part. Reliance is placed on judgment reported as "Muhammad Ismail v. The State" (2017 SCMR 713). 11. For what has been discussed above, prosecution has failed miserably to prove the charge against the appellant and numerous doubts in the prosecution case label it as a false and failed attempt to tag him with criminal The Hon'ble Supreme Court of Pakistan in case reported as "Abdul Jabbar and another v. The State" (2019 SCMR 129) has held as under:- "It is the settled principle of law that once a single loophole is observed in a case presented by the prosecution much less glaring conflict in the ocular account and medical evidence or for that matter where presence of eye-witnesses is not free from doubt, the benefit of such loophole/lacuna in the prosecution case automatically goes in favour of an accused." In view of the above, I have no option except to allow the instant appeal, resultantly, the same is ALLOWED, the conviction and sentence Of the appellant is set aside and he is acquitted of the charge by giving him benefit of doubt. He is in custody, he be released forthwith if not involved in any other criminal case. The case property, if any, be disposed of in accordance with law and the record of the learned trial court be sent back immediately. JK/A-34/L Appeal allowed.