Full Judgment Text & Judicial Ruling

2022 Y L R Note 19 [Lahore (Bahawalpur Bench)] Before Sadiq Mahmud Khurram and Shakil Ahmad, JJ MUHAMMAD AHMAD alias BAGGI and another---Appellants Versus The STATE---Respondent Criminal Appeals Nos. 485-J, 486-J and Murder Reference No. 33 of 2017, decided on 1st July, 2021. (a) Penal Code (XLV of 1860)--- ----Ss. 302(b), 109, 148 & 149---Qatl-i-amd, abetment, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Benefit of doubt---No justification for the presence of eye-witnesses at the spot---Chance witnesses--- Scope--- Accused were charged for committing murder of the brother-in-law of the complainant---Prosecution case revolved around the statements of complainant and behnoi of the deceased---Admittedly both of the prosecution witnesses did not have their residences or their houses at or around the place of occurrence---Said witnesses were chance witnesses---Houses or the place of work or any land of both the witnesses had not been shown at or around the place of occurrence in the scaled site plan or the rough site plan of the place of occurrence---Both the witnesses were under a duty to prove as to why they had come to the place of occurrence, just prior to the occurrence, when they had no business to be there in the normal course of their routine---Eye-witness in his statement before the Trial Court did not give any reason for his sudden arrival at the place of occurrence, the shop of the deceased, which shop was under construction during the days of the occurrence---Complainant failed in his endeavour to prove the reason for his presence at the place of occurrence at the time of occurrence---Alleged Eye-witnesses were not mentioned in column No.4 or the Page 4 of the inquest report as being the ones who were shown to have been present at the time of preparation of the said inquest report by the investigating officer though the same was prepared at the place of occurrence---Said witnesses were also not the ones who had identified the dead body of the deceased at the time of the post-mortem examination of the same---Both the witnesses claimed that after the occurrence they attended to the deceased---Clothes of both the eye-witnesses should have been smeared with blood, however, the Investigating Officer of the case, did not take any such blood-stained clothes of the witnesses in possession---All the said omission were conspicuous by their absence---In absence of physical proof or the reason for the presence of the witnesses at the crime scene, the same could not be relied upon---Allegedly, the cousin of the deceased was stated to be present at the place of occurrence at the time of occurrence was narrated to have witnessed the same---While appearing before the Trial Court said witness did not narrate any details of the occurrence and furthermore did not identify the accused present in the Trial Court---Said witness also did not state that eye-witnesses were also present at the place of occurrence at the time of occurrence and that both the said witnesses had even seen the occurrence---Said witness was not declared hostile by the prosecution nor he was re-examined nor any application was submitted for his further examination and the evidence of said witness was admitted as true by the prosecution---No reason existed which could have persuaded said witness for not naming the appellants as accused in his statement before the Trial Court---When said witness did not saddle the accused with the responsibility of committing the occurrence, it could not be presumed the same---Unchallenged statement of said witness wherein he neither named the accused present before the Trial Court as accused nor named the witnesses as being present at the place of occurrence, at the time of occurrence, was in itself sufficient to put the entire prosecution case in the realm of obscurity---Prosecution witnesses, who claimed to be eye-witnesses of the occurrence, were worthy of no reliance as they failed to prove any fact in issue---Circumstances established that the prosecution had failed to prove its case against the accused beyond any reasonable doubt---Appeal against conviction was allowed, in circumstances. Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142; Mst. Mir Zalai v. Ghazi Khan and others 2020 SCMR 319; Nadeem alias Kala v. The State and others 2018 SCMR 153; Muhammad Rafiq v. State 2014 SCMR 1698; Usman alias Kaloo v. State 2017 SCMR 622 and Nasrullah alias Nasro v. The State 2017 SCMR 724 rel. (b) Penal Code (XLV of 1860)--- ----Ss. 302(b), 109, 148 & 149---Qatl-i-amd, abetment, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Benefit of doubt---Unnatural conduct of the accused---Scope---Accused were charged for committing murder of the brother-in-law of the complainant---Prosecution witnesses claimed that they were miraculously saved in the midst of the firing---Blessing them with such an incredible consideration and showing them such favour was implausible and opposed to the natural behaviour of any accused---Being perceptive of the fact that if the witnesses were left alive, they would depose against the accused, even then the accused and their co-accused did not cause any injury to them was illogical---Such behaviour, on part of the accused, ran counter to natural human conduct in relation to the facts of the particular case---Circumstances established that the prosecution had failed to prove its case against the accused beyond any reasonable doubt---Appeal against conviction was allowed, in circumstances. Tariq Mehmood v. The State and others 2019 SCMR 1170; Rohtas Khan v. The State 2010 SCMR 566; Muhammad Farooq and another v. The State 2006 SCMR 1707 and Mst. Rukhsana Begum and others v. Sajjad and others 2017 SCMR 596 rel. (c) Penal Code (XLV of 1860)--- ----Ss. 302(b), 109, 148 & 149---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, abetment, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Withholding material evidence--- Effect--- Accused were charged for committing murder of the brother-in-law of the complainant---Place of occurrence was situated in a thickly populated area and was surrounded by shops and houses---According to the rough site plan of the place of occurrence as prepared by the Investigating Officer of the case, near and around the place of occurrence, there were shops and houses---None of those who had their houses or their shops around the place of occurrence joined the investigation of the case and also did not appear before the Trial Court to support the prosecution case---Prosecution was under a bounden duty to produce the witnesses who were the residents of the place of occurrence---Article 129 of the Qanun-e-Shahadat, 1984, provided that if any evidence available with the parties was not produced then it would be presumed that had that evidence been produced the same would have been gone against the party producing the same---Circumstances established that the prosecution had failed to prove its case against the accused beyond any reasonable doubt---Appeal against conviction was allowed, in circumstances. Nadeem alias Nanha alias Billa Sher v. The State 2010 SCMR 949 rel. (d) Penal Code (XLV of 1860)--- ----Ss. 302(b), 109, 148 & 149---Qatl-i-amd, abetment, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Dishonest improvements by eye-witnesses---Scope---Accused were charged for committing murder of the brother-in-law of the complainant---Record showed that the eye-witnesses of the occurrence made dishonest improvements to their previous statements---Both the witnesses were duly confronted with their previous statements---Said improvements made by eye-witnesses were substantial and were made with regard to crucial aspects of the prosecution evidence---By improving their previous statements, eye-witnesses impeached their own credit---Circumstances established that the prosecution had failed to prove its case against the accused beyond any reasonable doubt---Appeal against conviction was allowed, in circumstances. Muhammad Ashraf v. State 2012 SCMR 419; Muhammad Mansha v. The State 2018 SCMR 772 and Muhammad Arif v. The State 2019 SCMR 631 rel. (e) Penal Code (XLV of 1860)--- ----Ss. 302(b), 109, 148 & 149---Qatl-i-amd, abetment, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Ocular account and medical evidence---Contradictions---Accused were charged for committing murder of the brother-in-law of the complainant---Ocular account of the occurrence as furnished by eye-witnesses was flawed as it was contrary to the medical evidence available on record---Both the eye-witnesses made detailed statements with regard to the each and every injury observed on the dead body of the deceased, however, said witnesses failed to mention that the deceased had also received an injury on the back of his chest, which injury was mentioned in the post mortem examination report---Medical Officer stated that he observed a lacerated wound of the dimension of 2cm x1 cm present on the back of right chest of the dead body of the deceased, which injury had been caused by a firearm weapon and blackening was also present around the wound---No explanation of the presence of the said injury observed by Medical Officer on the dead body of the deceased in the statements of both the eye-witnesses---Complainant, in the written application submitted by him for the registration of FIR had got recorded in the same that acquitted co-accused of the present accused, while armed with pistol 30-bore, fired at deceased hitting him on his left shoulder---Medical Officer stated that he observed two lacerated wounds of the dimension 3 cm x 2 cm on the left upper chest posteriorly, however the said wounds were exit wounds---In that manner, complainant had attributed causing of exit wounds to acquitted co-accused of the present accused---Said contradictions in the ocular account of the occurrence as narrated by eye-witnesses and the medical evidence as furnished by Medical Officer clearly established that the prosecution had failed to prove the charge against the accused---Circumstances established that the prosecution had failed to prove its case against the accused beyond any reasonable doubt---Appeal against conviction was allowed, in circumstances. Amin Ali and another v. The State 2011 SCMR 323; Muhammad Ashraf v. The State 2012 SCMR 419; Usman alias Kaloo v. The State 2017 SCMR 622; Muhammad Hussain v. The State 2008 SCMR 345 and Irfan Ali v. The State 2015 SCMR 840 rel. (f) Criminal trial--- ----Witness--- Common set--- Effect--- Common set of witnesses could be used for recording acquittal and conviction against the accused persons who were charged for the commission of same offence. Criminal Miscellaneous Application No. 200 of 2019 in Criminal Appeal No. 238-L of 2013 PLD 2019 SC 527 rel. (g) Penal Code (XLV of 1860)--- ----Ss. 302(b), 109, 148 & 149---Qatl-i-amd, abetment, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Recovery of weapon of offence from the accused---Reliance---Scope---Accused were charged for committing murder of the brother-in-law of the complainant---Record showed that pistol was recovered from the accused---Said recovery had no evidentiary value in the eyes of law as the same was made in clear violation of S.103, Cr.P.C.---Said recovery of the pistol from the accused could not be used as incriminating evidence against him, being evidence which was attained through illegal means and hence hit by the exclusionary rule of evidence---Investigating Officer did not ask any individual resident of the area neighbouring the place of the recovery of the pistol from the accused to witness the recovery of the same---Circumstances established that the prosecution had failed to prove its case against the accused beyond any reasonable doubt---Appeal against conviction was allowed, in circumstances. Muhammad Ismail and others v. The State 2017 SCMR 898 rel. (h) Penal Code (XLV of 1860)--- ----Ss. 302(b), 109, 148 & 149---Qatl-i-amd, abetment, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Delay in sending the weapon and crime empties for analysis---Effect---Accused were charged for committing murder of the brother-in-law of the complainant---Perusal of the report of Forensic Science Agency revealed that the pistol recovered from the possession of the accused was deposited in the office of the Forensic Science Agency by Police Official, whereas the four empties recovered from the place of occurrence were deposited in the office of the Forensic Science Agency---Head Constable stated that Investigating Officer handed over to him a sealed parcel said to contain a pistol which he, on the same day, handed over the parcel back to Investigating Officer for its onward transmission to the office of Forensic Science Agency---According to Investigating Officer the accused led to the recovery of the pistol it was proved that Investigating Officer kept the recovered pistol in his own custody for as many as thirteen days and handed over the same to Head Constable---Said conduct of the Investigating Officer of the case opened up the possibility of fabrication on his part---Thus, the recovery of the pistol from the accused did not further the case of the prosecution in any manner and the same could not be used as a circumstance against the accused---Even otherwise the ocular account in the case had been disbelieved, hence the evidence of recovery would have no consequence---Circumstances established that the prosecution had failed to prove its case against the accused beyond any reasonable doubt---Appeal against conviction was allowed, in circumstances. (i) Criminal trial--- ----Recovery---Recovery of weapon of offence--- Corroborative evidence---Scope--- Recovery was only a corroborative piece of evidence and if the ocular account was found to be unreliable then the recovery had no evidentiary value. (j) Penal Code (XLV of 1860)--- ----Ss. 302(b), 109, 148 & 149---Qatl-i-amd, abetment, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Motive was not proved---Scope---Accused were charged for committing murder of the brother-in-law of the complainant---Motive of the occurrence as stated by the prosecution witnesses was that two sons of acquitted co-accused of the present accused had been murdered and the deceased was involved in the said murder, so acquitted accused planned the murder of the deceased---Two deceased were brothers of the accused and were the brothers in law of co-accused and the father and the brother of the accused were the complainants of the cases lodged with regard to the murders of said two deceased, whereas the co-accused was a witness in the case registered with regard to the murder of two deceased---Complainant admitted during cross-examination that he and his son were the nominated accused in the said murder case---Clear possibility existed that the accused were got involved in the case due to relationship and enmity with the complainant of the case---Circumstances established that the prosecution had failed to prove its case against the accused beyond any reasonable doubt---Appeal against conviction was allowed, in circumstances. (k) Criminal trial--- ----Motive---Scope---Motive is a double-edged weapon, which cuts either way---If motive is the reason for the accused to murder the deceased it equally is a ground for the complainant to falsely implicate the accused in the case. Muhammad Ashraf Alias Acchu v. The State 2019 SCMR 652 and Liaqat Ali and 11 others v. The State 1992 SCMR 372 rel. (l) Criminal trial--- ----Motive---Evidentiary value---Motive is only corroborative piece of evidence and if the ocular account is found to be unreliable then motive alone could not be made basis of conviction. (m) Penal Code (XLV of 1860)--- ----Ss. 302(b), 109, 148 & 149---Qatl-i-amd, abetment, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Abscondence of the accused for more than five months---Effect---Accused were charged for committing murder of the brother-in-law of the complainant---Accused was arrested during the investigation of the case on 18.11.2015,whereas the occurrence had taken place on 07.06.2015 as proof of his guilt---Fact of abscondence of an accused could be used as a corroborative piece of evidence, which could not be read in isolation but it had to be read along with substantive piece of evidence---Circumstances established that the prosecution had failed to prove its case against the accused beyond any reasonable doubt---Appeal was allowed and accused were acquitted by setting aside convictions and sentences recorded by the Trial Court. Asadullah v. Muhammad Ali PLD 1971 SC 541; Rasool Muhammad v. Asal Muhammad 1995 SCMR 1373; Muhammad Sadiq v. Najeeb Ali 1995 SCMR 1632; Muhammad Khan v. State 1999 SCMR 1220; Gul Khan v. State 1999 SCMR 304; Muhammad Arshad v. Qasim Ali 1992 SCMR 814; Pir Badshah v. State 1985 SCMR 2070; Amir Gul v. State 1981 SCMR 182; Muhammad Farooq and another v. The State 2006 SCMR 1707; Nizam Khan and 2 others v. The State 1984 SCMR 1092 and Rohtas Khan v. The State 2010 SCMR 566 rel. (n) Criminal trial--- ----Benefit of doubt---Principle---If only a single circumstance creating reasonable doubt in the mind of a prudent person is available then its benefit is to be extended to accused not as a matter of concession but as of right. Muhammad Mansha v. The State 2018 SCMR 772 and Muhammad Akram v. The State 2009 SCMR 230 rel. Farooq Haider Malik for Appellants. Ch. Asghar Ali Gill, Deputy Prosecutor General for the State. Abdul Sattar Zafar for the Complainant (Via Video Link, Bahawalnagar). Date of hearing: 1st July, 2021. JUDGMENT SADIQ MAHMUD KHURRAM, J.---Muhammad Ahmad alias Baggi son of Nazar Muhammad and Muhammad Sabir son of Ghulam Muhammad alias Goman (convicts) were tried along with Muhammad Khan, Nazar Muhammad and Muhammad Yasin (all since acquitted) by the learned Additional Sessions Judge, Haroonabad in case instituted upon the private complaint titled "Mehboob Ali v. Muhammad Ahmad alias Baggi and 10 others" (relating to FIR No. 278 of 2015 dated 07.06.2015 registered at Police Station Faqirwali District Bahawalnagar) in respect of offences under sections 302, 148, 149 and 109, P.P.C. for committing the Qatl-i-Amd of Waqar Ahmad son of Ghulam Rasool (deceased). The learned trial court vide judgment dated 29.09.2017, convicted Muhammad Ahmad alias Baggi son of Nazar Muhammad and Muhammad Sabir son of Ghulam Muhammad alias Goman (convicts) and sentenced them as infra: Muhammad Ahmad alias Baggi son of Nazar Muhammad: Death under section 302(b), P.P.C. as Tazir for committing Qatl-i-Amd of Waqar Ahmad son of Ghulam Rasool (deceased) and directed to pay Rs.300,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased, in case of default thereof, the convict was directed to further undergo six months of simple imprisonment. The convict was ordered to be hanged by his neck till dead. Muhammad Sabir son of Ghulam Muhammad alias Goman: Imprisonment for life under section 302(b), P.P.C. as Tazir for committing Qatl-i-Amd of Waqar Ahmad son of Ghulam Rasool (deceased) and directed to pay Rs.300,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased, in case of default thereof, the convict was directed to further undergo six months of simple imprisonment. The convict was extended the benefit available under Section 382-B of Code of Criminal Procedure, 1898 Muhammad Khan, Nazar Muhammad and Muhammad Yasin, the co-accused of the convicts were acquitted by the learned trial court. 2. Feeling aggrieved, Muhammad Ahmad alias Baggi son of Nazar Muhammad (convict) lodged Criminal Appeal No.485-J of 2017 through jail assailing his conviction and sentence. Feeling aggrieved, Muhammad Sabir son of Ghulam Muhammad alias Goman lodged Criminal Appeal No.486-J of 2017 through jail assailing his conviction and sentence. The learned trial court submitted Murder Reference No.33 of 2017 under section 374, Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Muhammad Ahmad alias Baggi son of Nazar Muhammad. We intend to dispose of the Criminal Appeal No. 485-J of 2017, Criminal Appeal No. 486-J of 2017 and Murder Reference No.33 of 2017 through this single judgment. 3. Precisely the facts necessary, as divulged in the statement of Mehboob Ali (PW-1) are as under:- "Stated that about 21 months prior Muhammad Irfan and Abdul Hameed PWs told me that at about noon time they were sitting in a hotel of Ezaffi Basti 118/6-R where Nazar Muhammad, Dost Muhammad (since dead), Muhammad Yasin and Muhammad Ameen (Since dead) were also present there, they were talking with each other than Waqar Ahmad (deceased of this case) had got murdered Muhammad Azam and Muhammad Nazim sons of Nazar Muhammad and that the revenge be taken from Waqar Ahmad deceased I narrated the said conspiracy to Waqar Ahmad deceased at his shop. On the same day at about 3/4 p.m. I along with Waqar Ahmad deceased were sitting at the shop of Waqar Ahmad situated in Lahori Bazar Faqirwali where Ghulam Hussain and Maqsood Ahmad PWs also attracted there at about 5.15 p.m. (before the occurrence), and we were talking with each other in the meanwhile three motorcyclists were came there and out of the said motorcyclists Muhammad Ahmad alias Baggi armed with pistol, 30 bore. Muhammad Khan armed with pistol 30/bore, Muhammad Ikram armed with pistol 30/bore, Shah Nawaz armed with pistol 30/bore, Sabir Hussain armed with pistol repeater 12/bore, Naseer Ahmad armed with repeater 12/bore and two unknown accused persons armed with firearms weapons. The said accused person namely Muhammad Ahmad alias Baggi present in the court made a lalkara and at the same moment he fired with his pistol 30/bore which hit on chest of Waqar Ahmad deceased, then Muhammad Ikram made a fire with his pistol 30/bore which hit on right flank of Waqar Ahmad, then Sabir Hussain made third fire with his repeater 12/bore which hit on right arm of Waqar Ahmad, later on Naseer Ahmad also made a fire with his repeater 12/bore which hit on abdomen of Waqar Ahmad on which Waqar Ahmad fell down and then Shah Nawaz made a fire with his pistol 30/bore which hit on back of Waqar Ahmad, then Muhammad Khan made a fire with his pistol 30/bore hitting Waqar Ahmad, the rest of the accused persons also made aerial firing and fled away from the spot with their respective weapons. We attended Waqar Ahmad deceased who died at the spot due to the injuries. After living the PWs near the dead body I went to the police station where I submitted application Exh. PA which is signed by me and on the basis of said application formal FIR No.278/2015 was registered at P/S Faqirwali. As the accused persons are influential persons, therefore, due to influence of the accused persons the police did not investigate the case properly, therefore, I filed the present complaint Exh.PB which was read over to me and I signed the same as token of its correctness. The accused persons Muhammad Ahmad alias Baggi etc mentioned above committed the murder of Waqar Ahmad on the abetment and instigation of Muhammad Ameen, Dost Muhammad (since dead persons). Muhammad Yasin and Nazar Muhammad, the accused persons present in the court." 4. The accused were summoned to face trial in the case instituted upon the private complaint titled "Mehboob Ali v. Muhammad Ahmad alias Baggi and 10 others" (relating to FIR No. 278 of 2015 dated 07.06.2015 registered at Police Station Faqirwali District Bahawalnagar) in respect of offences under sections 302, 148, 149 and 109, P.P.C. for committing the Qatl-i-Amd of Waqar Ahmad son of Ghulam Rasool (deceased). The learned trial court framed the charge against the appellant on 07.02.2017, to which the appellant pleaded not guilty and claimed trial. 5. The complainant in order to prove its case got recorded statements of as many as five witnesses. The ocular account of the case was furnished by Mehboob Ali (PW-1) and Maqsood Ahmad (PW-2). Muhammad Irfan (PW-3) stated that he heard Nazar Muhammad and Muhammad Yasin (both since acquitted) conspiring to murder the deceased and that he also identified the dead body of the deceased at the time of its post mortem examination. Akhtar Ali (PW-4) stated that the appellant namely Muhammad Ahmad alias Baggi son of Nazar Muhammad led to the recovery of the pistol (P-3) in his presence. Ghulam Hussain (PW-5) stated that he was also an eye-witness of the case and in his presence the police took into its possession blood stained earth through recovery memo (Exh.PE), four empties of 30-bore (P-4/1-4), two empties of 12-bore (P-5/1-2) and a…

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