2020 PLP 1862 (MLD)

SHEHRAM SARWAR Ch., J.

Iftikhar (appellant) along his co-accused namely Muhammad Zubair, Muhammad Ramzan, Haider Ali, Muhammad Zahid and Abdul Sattar was tried by the learned Addl. Sessions Judge, Pakpattan Sharif in case FIR No.207 dated 20.06.2013, offence under Sections 302, 324, 148 & 149 P.P.C., registered at Police Station Malka Hans, Pakpattan for the murder of Sarfraz and causing injury to one Liaqat Ali. Vide judgment dated 29.10.2016 passed by the learned Addl. Sessions Judge, Pakpattan, the appellant was 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, Cr.P.C. to the legal heirs of the deceased and in default whereof to further undergo simple imprisonment for six months. He was also convicted under Section 337-F(i) P.P.C. and sentenced to rigorous imprisonment for six months along with Daman of Rs.20,000/-. Through the same judgment, Muhammad Zubair, Muhammad Ramzan, Haider Ali, Muhammad Zahid and Abdul Sattar, co-accused of the appellant were acquitted of the charge 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 Addl. Prosecutor General. Assailing the above convictions and sentences, the appellant has filed the appeal in hand whereas the learned trial court has sent Murder Reference No.506 of 2016 for confirmation or otherwise of the appellant's sentence of death, as required under Section 374 of the 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 (Exh.PA/1) registered on the statement (Ex.PA) of Muhammad Yousaf, complainant (PW.1) is that about 5/6 months prior to the occurrence Hakim Ali, son of the complainant had purchased four acres land from Javed Rasheed. On 20.06.2013 at about 11.30 a.m. he along with Liaqat Ali, Sarfraz and Muhammad Akram were working in the fields. Meanwhile, Iftikhar Ahmad (appellant) armed with 12-bore double barrel gun, Muhammad Zubair armed with 12-bore gun, Abdul Sattar, Muhammad Ramzan, Haider Ali and Muhammad Zahid armed with Sotas came there. Abdul Sattar raised lalkara to teach a lesson to them for purchasing the land. Iftikhar Ahmad made straight fire with 12-bore gun hitting on right knee of Sarfraz, who fell on the ground, Muhammad Zubair made fire with 12-bore gun, hitting Liaqat Ali on his right calf. The complainant party tried to rescue Sarfraz and Liaqat Ali, whereupon Zubair raised lalkara that if anyone came forward, he would be met with the same fate. On their hue and cry the inhabitants of the locality attracted the place of occurrence and on seeing them the appellant along with his co-accused while resorting to firing fled way from the place of occurrence. The complainant's side shifted Sarfraz and Liaqat Ali in injured condition to RHC Hospital Malka Hans from where Sarfraz was referred to Lahore due to his precarious condition who succumbed to the injuries on the way to Lahore. Motive behind the occurrence as alleged in the FIR was that the complainant party purchased four acres land from Javed Rasheed and due to that grudge, the appellant and others committed the murder of the deceased and caused injury to Liaqat Ali.

3. After completion of investigation, report under Section 173, Code of Criminal Procedure was submitted in this case. The appellant along with his co-accused namely Muhammad Zubair, Muhammad Ramzan, Haider Ali, Muhammad Zahid and Abdul Sattar was summoned by the learned Addl. Sessions Judge, Pakpattan to face the trial. Copies of relevant documents were provided to appellant and his co-accused, as required under Section 265-C, Code of Criminal Procedure and formal charge under Sections 302, 324, 148 & 149 was framed against them on 17.02.2014, to which they pleaded not guilty and claimed trial. Statements of the appellant and his co-accused under Section 342 of the Code of Criminal Procedure were recorded on 21.09.2016, wherein they refuted all the prosecution allegations levelled against them and professed their innocence. The appellant neither opted to appear as his own witness, in disproof of the allegations levelled against him, as provided under Section 340(2), Code of Criminal Procedure nor did he produce any defence evidence. After conclusion of the 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 there is delay of about five hours and thirty minutes in reporting the matter to the police without there being any satisfactory explanation; that both the witnesses of ocular account namely Muhammad Yousaf complainant (PW.1) and Liaqat Ali, injured (PW.2) were closely related to the complainant as well as deceased and as such they were interested witnesses and their presence on the spot at the relevant time is doubtful in nature; that motive has not been proved against the appellant; that medical evidence is only, a supporting piece of evidence and relevant only if ocular account inspires confidence which is not the situation in this case; that alleged recovery of 12 bore double barrel gun (P.5) 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 acquittal.

5. On the other hand, learned Additional Prosecutor General assisted by learned counsel for the complainant opposes this appeal on the grounds that there was no conscious or deliberate delay in reporting the matter to the police; that presence of both the witnesses of ocular account on the spot at the relevant time is quite natural and probable; that motive has been proved against the appellant; that the ocular account is fully supported by medical evidence and further corroborated by the recovery of 12 bore double barrel gun (P.5) at the instance of appellant; that the prosecution has successfully brought home guilt against the appellant to the hilt and there is no merit in this appeal.

6. We have heard learned counsel for the parties as well as the learned APG for the State at a considerable length and have also gone through the record very minutely.

7. The occurrence in this case, as per prosecution case, took place on 20.06.2013 at 11:30 a.m. The matter was reported to the police on the same day at 5:00 p.m. i.e. about five hours and thirty minutes after the occurrence. The distance between police station and the place of occurrence is just eight kilometers. There is absolutely no plausible or convincing reason for the aforesaid delay in reporting the matter to the police. Even both the witnesses of ocular account namely Muhammad Yousaf complainant (PW.1) and Liaqat Ali (PW.2) while appearing before the learned trial Court did not give any plausible explanation for this inordinate delay which casts serious doubt about the veracity of prosecution story. Reliance may be placed on case law titled as "Mehmood Ahmed and 3 others v. The State and another" (1995 SCMR 127) wherein the Hon'ble Supreme Court of Pakistan at page 131 has observed as under:- "5. ...Although in some circumstances a delay of two hours may not be of much importance yet in the facts and circumstances of this particular case as they have happened, the delay has great significance. It can be attributed to consultation, taking instructions and calculatedly preparing report keeping the names of accused open for roping in such persons whom ultimately prosecution may wish to implicate..."

8. Ocular account in this case consists of Muhammad Yousaf complainant (PW.1) and Liaqat Ali (PW.2). The presence of complainant (PW-1) on the spot at the time of incident is doubtful in nature because he did not receive even a scratch during the incident. The delay in the FIR also casts doubt about his presence on the spot at the time of incident. In the FIR as well as before the learned trial Court it was the case of complainant that soon after the incident he along with other PWs took Sarfraz and Liaqat Ali in injured condition to RHC Hospital Malka Hans for medical treatment but in the relevant columns of medico legal reports (Exh.PE & Exh.PF), accompanying the injured to hospital the name of complainant is not mentioned rather the word 'police' is mentioned. Iftikhar Ahmad S.I. (PW.9 has stated in his cross examination that 'it is correct that complainant did not record any written statement to me regarding the present occurrence'. The delay in shifting Sarfraz in injured condition to hospital also creates doubt about the presence of complainant on the spot at the time of incident because Dr. Abdul Majeeb (PW.4) has stated in his cross-examination that Sarfraz was brought before him after the delay of two hours and thirty minutes and the cause of death was due to excessive bleeding in this case and there was possibility of survival of the deceased if he was shifted to any hospital immediately after the incident. Similarly, the presence of Liaqat Ali, injured (PW.2) cannot be considered as truthful witness because he got medically examined about four hours after the incident. The doctor who medically examined the said PW has stated in his cross-examination that there was a sole and simple injury on the body of Liaqat Ali injured and there was no corresponding hole on his clothes and similarly there was no blood on the clothes of Liaqat Ali injured. Moreover, it has been brought on record that no blood stained earth was taken into possession from the place where the said PW received firearm injury. Furthermore, the story of prosecution qua causing firearm injury on the person of Liaqat Ali, injured (PW.2) by Muhammad Zubair co-accused of the appellant has been disbelieved by the learned trial Court in paragraph No.20 of the impugned judgment by observing as under:- "He received injury from the hands of Muhammad Zubair accused at the time of occurrence, Liaqat Ali injured/PW had confusingly took impression that he received injury from the hands of Muhammad Zubiar. In fact it was also caused by accused Iftikhar and as such there is doubt about any criminal liability against those accused persons." The argument of the learned Law Officer that presence of Liaqat Ali (PW.2) cannot be doubted at the place of occurrence due to the injury on his 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). Moreover, six accused persons belonging to one and the same family were implicated in this case out of whom five have been acquitted by the learned trial Court and as such the possibility of throwing of wider net on the maximum members accused family could not be ruled out. It is settled by now that a witness who lied about any material fact must be disbelieved as all other facts by applying the principle of falsus in uno falsus in omnibus. We respectfully relied upon the case law reported as "PLD 2019 Supreme Court 527" in the matter of Crl. Misc. Application No.200 of 2019 in Crl Appeal No.238-L of 2013 decided on 4th March, 2019. Therefore, we hold that the evidence of above two eye-witnesses is shaky in nature and cannot be relied upon for maintaining the conviction/sentence of the appellant.

9. Motive behind the occurrence as alleged in the FIR was that the complainant party purchased four acres land from Javed Rasheed and due to that grudge, the appellant and others committed the murder of the deceased and caused injury to Liaqat Ali. The same motive was alleged against Muhammad Zubair, Muhammad Ramzan, Haider Ali, Muhammad Zahid and Abdul Sattar but they have been acquitted by the learned trial Court and no appeal against their acquittal was filed either by the State or the complainant. No documentary proof of land allegedly purchased by the complainant party from Javed Rasheed was got exhibited by the prosecution during the trial. Moreover, complainant (PW.l) has stated in his cross examination that place of occurrence was not owned by him as well as PWs which fact negates the story of motive qua purchase of said property by son of the complainant. Furthermore, no independent witness qua motive was joined by police in investigation or produced by prosecution before the learned trial Court during trial. Therefore, we hold that prosecution has failed to substantiate motive against the appellant.

10. So far as the alleged recovery of 12 bore double barrel gun at the instance of the appellant is concerned, the same is immaterial because the report (Exh.PM) of Punjab Forensic Science Agency qua rifle is in the negative.

11. As far as medical evidence is concerned, the same may 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 assaillant. Reliance is placed on "Ata Muhammad and another v. State" (1995 SCMR 599). 12, So far as the defence plea taken by the appellant in his statement under Section 342, Code of Criminal Procedure is concerned, since the prosecution evidence is doubtful in nature, therefore, there is no need to discuss the same.

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. Reliance is placed on case law titled as "Muhammad Akram v. The State" (2009 SCMR 30). 14, For the foregoing reasons, Crl Appeal No.1969 of 2016 filed by Iftikhar Ahmad (appellant) is allowed, convictions and sentences awarded to him vide judgment dated 29.10.2016 passed by the learned Addl. Sessions Judge-1, Pakpattan are set aside and the appellant is acquitted of the charges levelled against him while extending him benefit of doubt. Iftikhar Ahmad (appellant) is in jail. He shall be released forthwith if not required to be detained in any other case.

15. Murder Reference No.506 of 2016 is answered in the NEGATIVE and the sentence of death awarded to Iftikhar Ahmad (convict) is NOT CONFIRMED. SA/I-10/L Appeal allowed.