2021 PLP 183 (MLD)

SHEHRAM SARWAR CH., J.

Muhammad Saleem (appellant) along with his co-accused namely Muhammad Anwar, Muhammad Sadiq and Mukhtar Ahmad alias Mukhi, was tried by the learned Addl. Sessions Judge, Bahawalnagar in case FIR No.463 dated 29.09.2012, offence under Sections 302, 324 and 34, P.P.C. registered at Police Station Dunga Bonga, District Bahawalnagar for the murder of Muhammad Abid (deceased) son of complainant. Vide judgment dated 22.05.2014 passed by the learned Addl. Sessions Judge, Bahawalnagar, Muhammad Saleem (appellant) has been convicted under Section 302(b), P.P.C. and sentenced to death with a further direction to pay Rs.2,00,000/- (rupees two lakh only) as compensation under Section 544-A of the Code of Criminal Procedure to the legal heirs of the deceased and in default whereof to further undergo six months simple imprisonment. However, charge under Section 324, P.P.C. was not proved against Muhammad Saleem (appellant). Through the same judgment, Muhammad Anwar, Muhammad Sadiq and Mukhtar Ahmed alias Mukhi, co-accused of the appellant were acquitted of the charges by extending them benefit of doubt and no appeal against their acquittal was filed either by the State or the complainant as conceded by learned Deputy Prosecutor General as well as learned counsel for the complainant. Assailing the above conviction and sentence, the appellant has filed the appeal in hand whereas the learned trial court has sent Murder Reference No.27 of 2014 for confirmation or otherwise of the appellant's sentence of death, as required under Section 374, Code of Criminal Procedure. Since both these matters have arisen out of the same judgment, therefore, the same are being decided together through this single judgment.

2. Prosecution story, as set out in the FIR (Ex.PL, 3) registered on the written application (Ex.PB) of Muhammad Tufail, complainant (PW.6) is that he was resident of Mauza Ramnagar. He was cultivating the land of Rao Umar Farooq on lease. On 29.09.2012 he along with his son Muhammad Abid aged 19/20 years, after plucking cotton from the field and loading the same on tractor trolley being driven by Hakeem Paryar, were going on the dera of Umar Farooq. At about 4:30 p.m. when they reached the road on the land of Muhammad Saleem where Muhammad Saleem armed with repeater, Muhammad Anwar armed with sota and two unknown persons armed with repeaters were standing in front of them while parking a cart on the road. He asked Muhammad Saleem to put the cart aside so that they may pass their tractor trolley whereupon Muhammad Saleem started abusing and in reply thereto the complainant also abused him. On hearing noise Umar Farooq, Ghulam Fareed, Taj Muhammad alias Lehri, Anwar, Saeed, Istikhar, Nawab, Hakeem, Imran, Maqbool Ahmad, Ch. Muhammad Ashfaq, Inam-ul-Hassan, Rao Farman Ali and Rao Masoom stepped forward in order to rescue them, Muhammad Anwar raised lalkara to his son Muhammad Saleem and two unknown persons to fire them whereupon Muhammad Saleem and two unknown accused persons made straight firing on them as a result whereof the pellets landed on forehead, left biceps and left flank of Muhammad Abid, who fell down after sustaining grievous injuries. Due to the firing of Muhammad Saleem and two unknown accused persons Umar Farooq, Ghulam Fareed, Taj Muhammad alias Lehri, Anwar, Saeed, Istikhar, Nawab, Hakeem, Imran, Maqbool Ahmad, Ch Muhammad Ashfaq and Inam-ul-Hassan sustained injuries. Muhammad Abid succumbed to the injuries on the spot. Motive behind the occurrence was that two days prior to the occurrence Muhammad Saleem etc. intercepted the complainant party whereupon a minor altercation took place between them, the matter was patched up but the accused persons bore grudge in their heart.

3. After completion of investigation, report under Section 173, Code of Criminal Procedure was submitted in this case. Muhammad Saleem (appellant) along with Muhammad Anwar, Muhammad Sadiq and Mukhtar Ahmad was summoned by the learned Addl. Sessions Judge, Bahawalnagar to face the trial. Copies of relevant documents were provided to them, as required under Section 265-C, Code of Criminal Procedure and formal charge was framed against them, to which they pleaded not guilty and claimed trial. After the closure of prosecution evidence, statements of the appellant and his co-accused under Section 342, Code of Criminal Procedure were recorded on 09.05.2014, wherein they refuted all the allegations of the prosecution and professed their innocence. In answer to a question as to why this case against him and why the prosecution witnesses had deposed against him, the appellant stated as under:- "This is a false case. The PWs hired by Umar Farooq for taking possession of our own land. The real facts are that on the day of alleged occurrence I and my father Muhammad Anwar my co-accused were sitting in my house. The complainant party on the asking of Rao Umar Farooq who hired them while armed with weapons attacked upon us and made straight firing upon my father Muhammad Anwar on which he received fire arm injuries from the hands of complainant party. They want illegal possession of our land and they formed unlawful assembly and attacked upon my house on which I only to save the life of my father and my property made aerial firing but unluckily some of the fires hit to the complainant. The complainant party was hired by Rao Umar Farooq and they were aggressor. I have no enmity with the deceased, complainant as well as the PWs. The PWs, complainant as well as deceased had no land no business, no residence near the place of occurrence. They are only hired persons and while armed with weapons came there only to get illegal possession of my land. I in myself defence made firing only to save my life as well as life of my father Muhammad Anwar. The place of occurrence is belonged to me. My father Muhammad Anwar was also medically examined by the Medical Officer through the I.O. but the complainant party dishonestly suppressed his injuries. Neither complainant nor the deceased had any dispute with me and my co-accused prior to the occurrence but they came at the place of occurrence on the asking of Rao Umar Farooq who hired them only to get illegal possession of my owned land". The appellant also appeared as his own witness in disproof of the prosecution allegations and got recorded his statement under Section 340(2) Code of Criminal Procedure on the same lines as mentioned above. However, after conclusion of trial, the learned trial court convicted and sentenced the appellant and acquitted his co-accused, as detailed above. Hence, this appeal and murder reference.

4. Learned counsel for the appellant, in support of this appeal, contends that the appellant has falsely been implicated in this case; that presence of all the eye-witnesses namely Muhammad Tufail complainant (PW.6), Rao Masoom Ali (PW.7), Rao Umar Farooq (PW.8), Saeed Ahmad (PW.9) and Muhammad Anwar (PW.10) on the spot at the time of incident is doubtful in nature; that nine persons namely Ghulam Fareed, Taj Muhammad alias Lehri, Istikhar, Nawab, Hakeem, Imran, Maqbool, Ch. Muhammad Ashfaq and Inam-ul-Hassan who sustained injuries during the incident and one Hakeem Paryar, who was driving tractor at the time of incident, were the material witnesses of occurrence but they were not produced by the prosecution during the trial and as such the complainant withheld the best evidence available with it, therefore, adverse inference in view of Article 129(g) of the Qanun-e-Shahadat Order, 1984 can safely be drawn against prosecution; that ocular account is in direct conflict with the medical evidence; that motive has not been proved against the appellant; that alleged recovery of pump action 12 bore gun (P.3) at the instance of appellant is inconsequential; that viewing from all angles the prosecution case is doubtful in nature and the appellant is entitled to the benefit of doubt not as a matter of grace but as of right.

5. On the other hand, learned Deputy Prosecutor General assisted by learned counsel for the complainant opposes this appeal on the grounds that matter was reported to the police with due promptitude; that the complainant's side had no deep rooted enmity against the appellant for his false implication in this case; that presence of all the eye-witnesses on the spot at the time of incident is quite natural and probable; that motive has been proved against the appellant; that no adverse inference can be drawn against the prosecution due to non-production of Ghulam Fareed, Taj Muhammad alias Lehri, Istikhar, Nawab, Hakeem, Imran, Maqbool, Ch. Muhammad Ashfaq, Inam-ul-Hassan and Hakeem Paryar before the learned trial court as it is the prerogative of the prosecution to produce as many witnesses as it deems proper; that ocular account is fully supported by medical evidence which is further corroborated by the recovery of pump action 12 bore gun (P.3) at the instance of appellant; that the prosecution has successfully brought home guilt against the appellant beyond any shadow of doubt and there is no merit in this appeal.

6. We have heard learned Counsel for the parties as well as the learned Deputy Prosecutor General for the State and gone through the record with their able assistance.

7. Ocular account in this case consists of Muhammad Tufail complainant (PW.6), Rao Masoom Ali (PW.7), Rao Umar Farooq (PW.8), Saeed Ahmad (PW.9) and Muhammad Anwar (PW.10). In the FIR a joint role of firing was assigned to the appellant by stating therein that Muhammad Saleem (appellant) and two unknown accused persons made straight firing as a result whereof the pellets hit on forehead, left biceps and left flank of Muhammad Abid (deceased) whereas twelve other persons namely Umar Farooq, Ghulam Fareed, Taj Muhammad alias Lehri, Anwar, Saeed, Istikhar, Nawab, Hakeem, Imran, Maqbool, Ch. Muhammad Ashfaq and Inam-ul-Hassan sustained firearm injuries during the incident but while appearing before the learned trial Court the complainant (PW.6) changed the prosecution story by attributing a specific role to Muhammad Saleem (appellant) which was to the effect that 'Muhammad Saleem started firing which struck on the forehead of my son Muhammad Abid and left bicep as result of which he fell on the ground. The other two unknown persons also contributed firing as a result of which all the above said persons mentioned by me received injuries'. In the FIR as well as before the learned trial Court it was the case of prosecution that besides Muhammad Abid (deceased), twelve other persons namely Umar Farooq, Ghulam Fareed, Taj Muhammad alias Lehri, Anwar, Saeed, Istikhar, Nawab, Hakeem, Imran, Maqbool, Ch. Muhammad Ashfaq and Inam-ul-Hassan sustained injuries during the incident but the learned trial Court has disbelieved the said story of prosecution by observing in paragraph No.26 of the impugned judgment as under:- "So far as attribution of injuries of other injured persons to the accused Mohammad Saleem is concerned, the prosecution witnesses ascribed the general role to the accused Saleem as well as two unknown accused persons. It is pertinent to mention here that out of twelve witnesses, only three injured appeared as witnesses namely Umer Farooq (PW-8), Saeed Ahmad (PW-9) and Anwar (PW.10). So to the extent of remaining nine injured there is no need to discuss the prosecution evidence. Mohammad Tufail, (PW-6) stated that other two unknown persons also contributing firing as a result of which all the injured persons of this case received injuries. The remaining eye witnesses including injured PWs alleged a general role of making firing by accused Mohammad Saleem and two unknown persons upon the injured persons. Although, injured Saeed Ahmad as PW-9 and Anwar as PW-10 ascribed specific role to the accused Mohammad Saleem for causing injuries to them, but as per initial stance of the prosecution, no such specific role had been attributed to the accused Mohammad Saleem and deposition of PW-9 and PW-10 is outcome of improvements from the face of record. Therefore, to the extent of injuries of injured Umer Farooq, Saeed Ahmad and Anwar, case of prosecution against accused Mohammad Saleem could not be established through cogent evidence." It is settled by now that a witness who lied about any material fact must be disbelieved as to all other facts by applying the principle of falsus in uno falsus in omnibus. We respectfully relied upon the judgment dated 04.03.2019 of the Hon'ble Supreme Court of Pakistan passed in Crl. Misc. Application No.200 of 2019 in Crl. Appeal No.238-L, of 2013. This argument of the learned Deputy Prosecutor General that presence of Rao Umar Farooq (PW.8), Saeed Ahmad (PW.9) and Muhammad Anwar (PW.10) cannot be doubted at the place of occurrence due to the injuries on their person has no substance because merely the injury on the body of a person, would not stamp him/her truthful witness. Reliance is placed on case law titled as "Amin Ali and another v. The State" (2011 SCMR 323). According to the prosecution's own case,. nine persons namely Ghulam Fareed, Taj Muhammad alias Lehri, Istikhar, Nawab, Hakeem, Imran, Maqbool, Ch. Muhammad Ashfaq and Inam-ul-Hassan who sustained injuries during the incident and one Hakeem Paryar, who was driving tractor at the time of incident, were the material witnesses of occurrence but they were not produced by the prosecution during the trial. Therefore, the prosecution withheld the best available evidence and in view of Article 129(g) of Qanun-e-Shahadat Order, 1984, adverse inference, that had these PWs been produced before the learned trial court they would not have supported the prosecution case, can safely be drawn against the prosecution. Reliance in this respect is placed on the esteemed judgments passed by the Hon'ble Supreme Court of Pakistan in the cases of "Lal Khan v. The State" (2006 SCMR 1846) and "Muhammad Rafique and others v. The State and others" (2010 SCMR 385). In the case of Muhammad Rafique and others, supra, the Hon'ble Supreme Court of Pakistan was pleased to observe as under:- "33. ...It is well-settled that if any party withholds that best piece of evidence then it can fairly be presumed that the party had some sinister motive behind it. The presumption under Article 129(g) of Qanun-e-Shahadat Order can fairly be drawn that if P.W. Amir Ali could have been examined, his evidence would have been unfavourable to the prosecution..." Therefore, we hold that evidence furnished by all the above-said eye-witnesses is shaky in nature and cannot be relied upon by maintaining the conviction/sentence of the appellant.

8. There is another aspect of the case. Muhammad Sadiq and Mukhtar Ahmad alias Mukhi co-accused of the appellant, as per testimony of complainant (PW.6), having similar role with that of the appellant, have been acquitted by the learned trial Court and no appeal against their acquittal was filed either by the State or the complainant, therefore, the question, for determination before us, is whether the evidence which has been disbelieved qua the acquitted co-accused of the appellant namely Muhammad Sadiq and Mukhtar Ahmad alias Mukhi can be believed against the appellant? In this regard, we are guided by the judgment of the Hon'ble Supreme Court of Pakistan reported as "Shahbaz v. The State" (2016 SCMR 1763), wherein it was held at page 1765 as under:- "2. ...The law is settled by now that if some eye-witnesses are disbelieved against some accused persons attributed effective roles then the same eye-witnesses cannot be relied upon to the extent of the other accused persons in the absence of any independent corroboration and a reference in this respect may be made to the cases of Ghulam Sikandar and another v. Mamaraz Khan and others (PLD 1985 SC 11), Sarfraz alias Sappi and 2 others v. The State (2000 SCMR 1758), Iftikhar Hussain and others v. The State (2004 SCMR 1185) and Akhtar Ali and others v. State (2008 SCMR 6). In the case in hand no independent corroboration worth its name was available to the extent of Shahbaz appellant inasmuch as the trial court and the High Court had disbelieved the motive set up by the prosecution, the alleged recovery of a chhurri from the custody of the appellant was inconsequential because the recovered chhurri was not stained with blood, post-mortem examination of the deadbody of Aftab Akhtar deceased was noticeably delayed as the same had been conducted in the following morning and the duration between death and post-mortem examination was recorded as about eleven hours. It appears that time had been consumed by the complainant party and the local police in procuring and planting eye-witnesses and in cooking up a story for the prosecution. The said story of the prosecution already stands substantially disbelieved to the extent of Muhammad Abbas co-accused and we have found that the same was not free from doubt even to the extent of Shahbaz appellant." The above said view has been further fortified in the recent case law titled as "Imtiaz alias Taj v. The State and others" (2018 SCMR 344).

9. Motive behind the occurrence was that two days prior to the occurrence Muhammad Saleem etc. intercepted the complainant party whereupon a minor altercation took place between them, the matter was patched up but the accused persons bore grudge in their heart. No exact date, time and place of motive incident have been mentioned in the FIR. The motive incident was not reported to the police. No solid/convincing evidence qua motive incident has been brought on record. No independent witness qua motive was associated by police during investigation or produced before the learned trial Court by the prosecution during the trial. Therefore, we hold that prosecution has failed to prove motive against the appellant.

10. So far as alleged recovery of pump action 12 bore gun (P.3) at the instance of appellant is concerned the same is immaterial because report of Punjab Forensic Science Agency qua said weapon is in the negative.

11. The ocular account is in direct conflict with the medical evidence because in the FIR it was the case of prosecution that the appellant along with his co-accused made firing and the pellets landed on the forehead, left biceps and left flank of Muhammad Abid (deceased) but while appearing before the learned trial Court all the witnesses of ocular account except Muhammad Anwar (PW.10) did not assign any injury to the appellant and his co-accused on left flank of Muhammad Abid (deceased). Moreover, the medical evidence may only confirm the ocular account with regard to the receipt of injury, locale of injury, kind of weapon used for causing the injury, duration between the injury and the death but it would not tell the name of the assailants. Reliance is placed on "Ata Muhammad and another v. The State" (1995 SCMR 599).

12. So far as the defence plea taken by the appellant in his statements under Sections 342 and 340(2) Code of Criminal Procedure is concerned, though Muhammad Saleem (appellant) has stated in the said statements that in his self defence he made firing upon the complainant party but it is settled principle of law that if the prosecution fails to prove its case against an accused person then the accused person is to be acquitted even if he had taken a plea and had thereby admitted killing the deceased. Reliance in this respect is placed on the esteemed judgment passed by the Hon'ble Supreme Court of Pakistan in the case of "Azhar Tqbal v. The State" (2013 SCMR 383) wherein at pages 384 and 385, the Hon'ble Supreme Court has been pleased to observe under:-- "2. ... it has straightaway been observed by us that both the learned courts below had rejected the version of the prosecution in its entirety and had then proceeded to convict and sentence the appellant on the sole basis of his statement recorded under section 342, Cr.P.C. wherein he had advanced a plea of grave and sudden provocation. It had not been appreciated by the learned courts below that the law is quite settled by now that if the prosecution fails to prove its case against an accused person then the accused person is to be acquitted even if he had taken a plea and had thereby admitted killing the deceased. A reference in this respect may be made to the case of Waqar Ahmed v. Shaukat Ali and others (2006 SCMR 1139). The law is equally settled that the statement of an accused person recorded under section 342, Cr.P.C. is to be accepted or rejected in its entirety and where the prosecution's evidence is found to be reliable and the exculpatory part of the accused person's statement is established to be false and is to be excluded from consideration then the inculpatory part of the accused person's statement may be read in support of the evidence of the prosecution. This legal position stands amply demonstrated in the cases of Sultan Khan v. Sher Khan and others (PLD 1991 SC 520), Muhammad Tashfeen and others v. The State and others (2006 SCMR 577) and Faqir Muhammad and another v. The State (PLD 2011 SC 796)..."

13. We have considered all the pros and cons of this case and have come to this irresistible conclusion that the prosecution could not prove its case against the appellant beyond any shadow of doubt. It is, by now well established principle of law that it is the prosecution, which has to prove its case against the accused by standing on its own legs and it cannot take any benefit from the weaknesses of the case of the defence. In the instant case, the prosecution remained failed to discharge its responsibility of proving the case against the appellant. It is also well established that if there is a single circumstance which creates doubt regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused, whereas, the instant case is replete with number of circumstances which have created serious doubt about the prosecution story. In "Muhammad Akram v. The State" (2009 SCMR 230), the Hon'ble Supreme Court of Pakistan, at page 236, was pleased to observe as under:- "13. ...It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."

14. For the foregoing reasons, Criminal Appeal No.251 of 2014 filed by Muhammad Saleem (appellant) is allowed, conviction and sentence awarded to him vide judgment dated 22.05.2014 passed by the learned Addl. Sessions Judge, Bahawalnagar are set aside and the appellant is acquitted of the charges leveled against him while extending him benefit of doubt. Muhammad Saleem, appellant is in jail. He shall be released forthwith if not required to be detained in any other case.

15. Murder Reference No. 27 of 2014 is answered in the NEGATIVE and the sentence of death awarded to Muhammad Saleem (convict) is NOT CONFIRMED. JK/M-121/L Appeal allowed.