2025 PLP 1277 (YLR)

Ali Baqar Najafi, J.

Through this appeal under Section 410 Cr.P.C. the appellant has challenged his conviction and sentence awarded by the learned Addl. Sessions Judge, Sahiwal vide judgment dated 31.07.2021 in case FIR No. 08 dated 03.01.2020 registered under Sections 302, 34 P.P.C at Police Station Fareed Town, District Sahiwal whereby the appellant was convicted under Section 302(b) P.P.C and sentenced to life imprisonment with compensation of Rs. 5,00,000/- to the legal heirs of the deceased Ghulam Abbas under Section 544-A Cr.P.C. which shall be recovered as arrears of land revenue and in case of non-payment of compensation amount to further undergo simple imprisonment for six months besides extending the benefits of Section 382-B Cr.P.C.

2. Briefly, the prosecution case as per the complaint (Exh.PG) filed by Allah Ditta /complainant (PW-6) is that on 03.01.2020 at about 04:00 p.m. his son namely, Ghulam Abbas alias Kali, along with Khalid Raza (PW-7) and Shahid Iqbal (given up) was going to his house from the house of the complainant (PW-6). When he reached near the shop of Sabir Arain (not produced), suddenly from the side of a nearby shrine of Jhandi Peer, Munawar Shah (appellant) armed with Churra along with others came there running with Haleema Bibi/co-accused (since acquitted) who raised lalkara to teach a lesson to Ghulam Abbas alias Kali for levelling allegation against her, upon which Hazir and Ejaz (since acquitted) grabbed Ghulam Abbas alias Kali (deceased) and Munawar Shah/appellant made Churra blows which hit on left side of front of his belly and left side of his waist, who fell down. The complainant (PW-6) along with others tried to apprehend the assailants who managed to escape with the weapon. Many people of the village attracted on hue and cry who witnessed the occurrence. The injured was taken to the Civil Hospital, Sahilwal on Rescue 1122 who succumbed to the injuries on the way. The motive behind the occurrence was the illicit relations of the appellant with Haleema Bibi wife of Hazir, who was forbidden not to come on the shrine which carried vengeance in their mind, who in furtherance of their common intention murdered Ghulam Abbas alias kali.

3. After conclusion of the investigation, the report under Section 173 Cr.P.C. was submitted before the trial court and the charge was framed against the appellant on 30.03.2021 to which he pleaded not guilty and claimed trial. The prosecution produced Rai Nasir Ali, ASI (PW-1), Zahid Ali, Draftsman (PW-2), Muhammad Javed, 300/C (PW-3), Dr. Tanveer Ahmed (PW-4), Atique-ur-Rehman, 395/HC (PW-5), Allah Ditta/ complainant (PW-6), Khalid Raza/eye-witness (PW-7), Zulfiqar Ahmed(PW-8) and Sakhawat Ali/Inspector (PW-9) and closed the evidence by giving up Shahid Iqbal and Muhammad Aslam (PWs) being un-necessary. In documentary evidence, produced copy of FIR (Exh.PA), scaled site plan (Exh.PB and Exh.PB/1), recovery memo. of last worn clothes (Exh.PC), post-mortem (Exh.PD) and pictorial diagram (Exh.PD/A and Exh.PD/B), application for post-mortem (Exh.PE), inquest report (Exh.PF), application for registration of FIR (Exh.PG), police proceedings (Exh.PG/1), recovery of blood stained cotton (Exh.PH), recovery of weapons of offence (Exh.PJ), unscaled site plan of recovery of weapon of offence (Exh.PJ/1), unscaled site plan of place of occurrence (Exh.PK), PFSA report (Exh.PL and Exh.PL/1). The appellant did not opt to depose under Section 340(2) Cr.P.C but produced copy of case diary dated 03.01.2020 (Exh.DA), photocopy of CNIC (Exh.DB), Membership certificate (Exh.DC and Exh.DD), photocopy of Diploma of Muhammadin system of Shafa (M.D.S.S.) (Exh.DE) and photocopy of Certificate Adab (Ex.DF) in his defence. In reply to question as to why this case was registered against you and why the PWs have deposed against you, the appellant replied as under:- "It is a false case. The PWs have deposed falsely being related inter-se with the deceased and also inimical towards me. Infact, it was an un-witnessed and blind murder. The deceased was all alone when received the injuries from the hands of unknown assailants. The said fact was also established from the record that Mst. Iram Bibi widow of the deceased Ghulam Abbas firstly reached at the spot after hearing the noise from her house which is situated near the place of occurrence and she inquired from Ghulam Abbas when he was lying in injured condition there, at that time neither Allah Ditta nor Khalid Raza and Shahid Iqbal PWs were present there. Similarly, Zulfiqar PW also stated that when he reached the spot and he also inquired from Ghulam Abbas and on the direction of Ghulam Abbas, Zulfiqar PW took the wallet and mobile phone of Ghulam Abbas and handed over to Mst. Iram Bibi widow of the deceased. This fact was also verified by PW-9 Sakhawat Ali Inspector. Initially the complainant party got registered the present case against one Munawar Shah Gillani. The Investigating Officer did not trace out Munawar Shah Gillani accused thereafter he with ulterior motive and malafidely involved me in this case instead of Munawar Shah Gillani only to show his progress. My name is Munawar Hussain Mughal and I run a clinic of Hikmat at Malghda Chowk and I have no concern in Chak No. 96/6-R where allegedly the present occurrence took place which is at a distance of 15/20 kilometers from my residence."

4. After conclusion of the trial, the learned trial court pronounced its verdict against the appellant and awarded him aforesaid punishment.

5. After hearing the learned counsel for the appellant, learned DDPP assisted by the learned counsel for the complainant and perusing the record, it is straightway observed that the prosecution evidence is comprised of ocular account, medical evidence, investigation and the conclusion which are discussed as under:- OCULAR ACOUNT.

6. Allah Ditta/complainant (PW-6) reiterated the story of the FIR (Exh.PA) according to which on 03.01.2020 at 03:30/04:00 p.m. his son namely Ghulam Abbas alias Kali (deceased) along with Khalid Raza (PW-7) and Shahid Iqbal (given up) were going to his house from the house of the complainant (PW-6). They were ahead of the complainant (PW-6) and when they reached near the shop of Sabir Arain, Munawar Hussain/appellant armed with Churra Haleema Bibi wife of Hazir, Hazir and Ejaz (since acquitted) came running on the shop from a nearby shrine of Jhandi Peer. Haleema Bibi (since all three acquitted) raised lalkara to teach a lesson to Ghulam Abbas alias Kali (deceased) for levelling allegations against her, upon which Hazir and Ejaz (since acquitted) caught hold of his son and Munawar Hussain/appellant gave two churri blows landed on left side of front of his belly and on left side of waist. Ghulam Abbas alias Kali (deceased) fell on the ground and the complainant (PW-6) tried to apprehend the assailants but they decamped from the spot. The occurrence was witnessed by Khalid Raza (PW-7) and Shahid Iqbal (given up). People from the vicinity were attracted to the spot and the complainant transported Ghulam Abbas alias Kali (deceased) to the hospital in injured condition through Rescue 1122 but he succumbed to the injuries on the way to hospital. The motive behind the occurrence was that Haleema Bibi had illicit relations with Munawar Hussain/appellant who was forbidden not to visit the shrine but due to this grudge the son of the complainant was murdered. He submitted application (Exh.PG) in the DHQ Hospital, Sahiwal for registration of the FIR. In cross-examination, he admitted that his two sons i.e. Ghulam Abbas alias Kali (deceased) and Ghulam Mustafa (since dead) were residing in the vicinity in front of said shrine and his residence is also at eastern side of said shrine at a distance of 03 kilometers whereas Khalid Raza (PW-7) was from his neighbourer. Shahid Iqbal (given up) is his son-in-law whereas Khalid Raza (PW-7) was also his son-in-law. He was Basked question about the fact that whether Khalid Raza (PW-7) was actually his son-in-law. He admitted that Khalid Raza (PW-7) was living at about 2 1/2 acres from said shrine. His land is situated at 06 acres from the said shrine. None from the locality was cited as PW. He admitted that in the application (Exh.PG) he stated that Ghulam Abbas alias Kali (deceased) Khalid Raza (PW-7) and Shahid Iqbal (given up) were going ahead of him which fact was confronted with his previous statement. Giving two Churri blows, effort to apprehend the appellant, shifting of the deceased to the hospital after the occurrence was also confronted with his previous statement. He admitted that his application was against Munawar Shah Caste Gillani, who was also known by the Caste Gillani. He denied the suggestion that Munawar Gillani used to clean the shrine and collected Nazrana. According to this witness, Iram Bibi wife of Ghulam Abbas alias Kali (deceased) was informed by the deceased himself just before his death that he was injured by "Malangs" as she reached at the place of occurrence latter on.

7. Khalid Raza/eye-witness (PW-7) reiterated the story of the FIR and also stated that he was the recovery witness of Churri (P-4) from the wheat situated on bank of canal which was blood stained and taken into possession vide recovery memo. (Exh.PJ). In cross-examination, he was confronted with his previous statement under Section 161 Cr.P.C. (Exh.DA) about the time of occurrence 03:30/04:00 p.m., giving two Churri blows to the deceased. He was also confronted with the previous statement (Exh.DA) that other tried to apprehend the appellant. He admitted that DHQ Hospital was situated at about 6/7 kilometers whereas the police station is at about 5/6 kilometers from the place of occurrence. He admitted that he never called Rescue 1122 or 15 to report the occurrence but it reached the place of occurrence after 10/15 minutes. He and Shahid Iqbal (given up) put Ghulam Abbas alias Kali (deceased) on the Cot during which their hands and clothes were not stained with blood which is quite un-natural.

8. Zulfiqar Ahmed (PW-8) identified the dead body of Ghulam Abbas alias Kali (deceased) in the mortuary at the time of post-mortem examination who was handed over the last worn clothes (Exh.PC). In cross-examination, he admitted that when Ghulam Abbas alias Kali (deceased) his wife Iram Bibi, reached at the place of occurrence the deceased just before his death told that he was injured by "Malangs". He did not call Rescue 15 or 1122 and he did not put the injured on the Cot at the spot but the Rescue 1122 put the injured and boarded him in vehicle of Rescue 1122. MEDICAL EVIDENCE.

9. Dr. Tanvir Ahmed (PW-4) narrated the following injuries on the person of the deceased:- Injury No.1. An incised wound measuring 8 cm x 1 cm was present on left hypochondrial region (front upper left side of abdomen) which is 2 cm below left costal margin. Injury No.2. An incised wound 4 cm x 1 cm on back left side of lower chest which is 4 cm below lower end of left scapula. According to him, the autopsy of the deceased was conducted at 07:30 p.m. on the same day and eyes were semi-opened. Rigor mortis and post-mortem staining were developing. In his opinion, the cause of death was injury No.1 which injured the main blood vessels of abdomen, stomach and liver leading to haemorrhage shock and death. Injury No.2 caused partial damage to lungs which contributed to the death. He signed the post-mortem report (Exh.PD), injury statement (Exh.PE) and inquest report (Exh.PF). In cross-examination, he admitted that he conducted the post-mortem examination the moment he received the police papers. He admitted that there was over-writing in the column of probable duration between the death and post-mortem and that only the word "hour" was over-written. He admitted that stab wound and incised wound may occur with acerose weapon and that incised wound by sharp edged weapon. He admitted that FIR of the case was not part of the police file when he conducted the post-mortem and here could be variation of one hour between time of death and post-mortem INVESTIGATION.

10. Sakhawat Ali/Inspector (PW-9) conducted the investigation. He received application for registration of FIR (Exh.PG) incorporated police proceedings (Exh.PG/1), prepared injury statement (Exh.PE), inquest report (Exh.PF), recovered blood stained cotton vide recovery memo. (Exh.PH), un-scaled site plan (Exh.PK) on pointation of the complainant and PWs. Last worn clothes vide recovery memo. (Exh.PC), scaled site plan (Exh.PB and Exh.PB/1), recovery memo. of Churri (P-4) (Exh.PJ) and site plan of recovery of weapon of offence (Exh.PJ/1). In cross-examination, he admitted that Hazir and Ejaz did not participate in the occurrence and the allegations against them were found false. He denied the suggestion that it was a blind murder. CONCLUSION.

11. Scanning the prosecution evidence, it is clear that Allah Ditta/complainant (PW-6) claims himself to be an eye-witness of the occurrence but surprisingly, after sustaining injuries by Ghulam Abbas alias Kali (deceased) he had made no effort to put him on any Cot or provide him any kind of first aid or informed 1122, or took his son in injured condition to the hospital. So much so that his clothes were not stained with blood, in short, he did not attend to him. Khalid Raza (PW-7) has also not stated in clear terms about witnessing the occurrence because neither he reported the matter to the police nor he attended to the injured. Zulfiqar Ahmed (PW-8) admitted that the deceased was taken to the hospital on 1122 and that he did not inform the police either. The occurrence was at 04:00 p.m. and was reported at 05:20 p.m. but according to Dr. Tanveer Ahmed (PW-4) the duration of injury is from 3% to 3 hours and the autopsy was conducted at 07:30 p.m. yet the rigor mortis was developing. Interestingly, on the same prosecuting evidence Haleema Bibi wife of Hazir, Hazir and Ejaz who were allegedly present and grabbed the deceased and participated in the occurrence have been acquitted also on the ground that they were found innocent during the investigation. This also questions the credibility of the eye-witnesses whose statement was partially disbelieved by trial court. Both the eye-witnesses have made dishonest improvements which were discussed in the preceding paragraphs. Following the deceased from behind at the time of occurrence also requires explanation particularly, when Khalid Raza (PW-7) was residing at a distance of 2 acres away from the shrine. Iram Bibi wife of Ghualm Abbas alias Kali, reportedly stated that she heard that after sustaining injuries her husband named some "Malangs" and not the appellant as the one who stabbed him. It was a very small locality of few people where they knew each other personally. If it could be called his dying declaration, his falsity could not be inferred in the facts and circumstances when he did not name the appellant as his killer. The prosecution witnesses had named the appellant as Gillani, Shah and also Malang with the explanation that he was commonly known as Gillani despite being Mughal by Caste. Such known name of the appellant could not be relevant to ascertain his culpability. It, therefore, also appears to be the case of suppression of relevant factor by the eye-witnesses.

12. For the above stated reasons, I seriously doubt about the presence of eye-witnesses at the spot who claimed to have witnessed the occurrence. The prosecution evidence, therefore, is bereft of credibility. Reliance is placed upon "Zafar v. The State and others" reported as (2018 SCMR 326). Para No. 7 is reproduced as under:- "The conduct of the witnesses of ocular account also deserves some attention. According to complainant, he along with Umer Daraz and Riaz (given up PW) witnessed the whole occurrence when their father was being murdered. It is against the normal human conduct that the complainant, Umer Daraz and Riaz (PW since given up) did not make even an abortive attempt to catch hold of the appellant and his co-accused particularly when the complainant himself has stated in the FIR and before the learned trial Court that when they raised alarm, the accused fled away. Had they been present at the relevant time, they would not have waited for the murder of their deceased father and would have raised alarm the moment they saw the appellant and his co-accused standing near the cot of their father." Reliance is further placed upon "Muhammad Mansha v. The State" reported as (2018 SCMR 772). Para NO. 4 is reproduced as under: Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted." Reliance in this behalf of can be made upon the cases of "Tariq Pervez v. The State" (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muhammad Akram v. The State (2009 SCMR 23) and Muhammad Zaman v. The State (2014 SCMR 749)."

13. In this view of the matter, this appeal is allowed and the appellant is acquitted of the charges levelled against him. He is behind the bars, be released forthwith if not required in any case. JK/M-46/L Appeal allowed.