2017 P Cr (PLP)

SADAQAT ALI KHAN, J.

This single judgment shall dispose of Criminal Appeal No.1480 of 2013 filed by Najaf alias Najji and Tasawwar Abbas Khan appellants (against their convictions), Crl. Revision No.845 of 2013, filed by Abdul Rasheed complainant P. W. 6 (for enhancement of sentence of Najaf alias Najji appellant) and M.R. No.312 of 2013 sent by the learned trial court for confirmation of the death sentence of Tasawwar Abbas Khan appellant or otherwise as all the above stated three matters have arisen out of the same judgment dated 30.09.2013 passed by learned Additional Sessions Judge, Jhang according to which the appellants were convicted and sentenced as under:- Tasawwar Abbas Khan He was convicted under section 302(b), P.P.C. and sentenced to death with compensation of Rs.3,00,000/- to the legal heirs of Abdul Aziz deceased as required under section 544-A, Cr.P.C. and in default whereof, to further undergo three years' imprisonment; Najaf alias Najji He was convicted under section 302(b), P.P.C. and sentenced to imprisonment for life with compensation of Rs.2,00,000/- to the legal heirs of Abdul Aziz deceased as required under section 544-A, Cr.P.C. and in default whereof, to further undergo two years' imprisonment. by the learned trial court in private complaint under sections 302, 324, 109, 34, P.P.C. arising out of case FIR No.419 dated 30.09.2007 under section 324/34, P.P.C., Police Station 18-Hazari, District Jhang, whereas their co-accused namely Karam Khan and Nasir Khan have been acquitted through the impugned judgment.

2. The facts of the case have been stated by Abdul Rasheed complainant P.W. 6 (real father of the Abdul Aziz Aziz deceased) in his statement before the learned trial court which is hereby reproduced for narration of the facts:- "Stated that about four and half years ago at about 8:00 p.m. I along with Ghulam Farid and Shameer were offering Esha prayer. Meanwhile someone called me outside. I asked my son Abdul Aziz to look outside, who is there. My son went out and then went towards North. I along with my brothers also followed my son. After one acre distance, near the reeds bushes, accused Tasawar Hussain son of Riaz Khan armed with pistol, Najaf armed with pistol accused present in the court came in front of my son. Tasawar Khan accused made a fire shot which did not hit my son. Second fire shot was made by Tasawar Khan accused which hit beneath the ribs on left side of chest of my son. Then accused Najaf made fire shot which hit on urinary bladder of my son. My son fell on the ground. I along with my brothers witnessed the occurrence, raised hue and cry and reached at the spot and took care of my son. The accused persons fled away from the spot. We shifted Abdul Aziz in injured condition to Rodu Sultan hospital. The doctor referred the injured to District Headquarters Hospital, Jhang. I asked Ghulam Farid etc. my brothers to shift the injured to civil hospital Jhang whereas I went to police station 18-Hazari and get drafted a complaint which was presented to the police officials present at Chowk 18-Hazari. Therefore, formal FIR was registered. That application was thumb marked by me which is Ex. PG. Motive behind the occurrence is that I am a cultivator. The accused persons used to commit mischief of canal water. I repeatedly restrained the accused persons from causing mischief of irrigation water but they refused to do so, therefore, I also moved applications in the Irrigation Department against the accused persons. Due to that grudge the accused persons, upon the abetment of Karam Khan and Nasir Khan, injured my son Abdul Aziz. Abdul Aziz injured was then again referred to Allied Hospital Faisalabad for further treatment, the injured remained under medical treatment for more than three months and thereafter succumbed to the injuries. Police came at the spot, inspected the place of occurrence and secured crime empties of pistol and the same into sealed parcel and taken into possession through recovery memo Ex.PH. Memo was attested by me and Ghulam Farid PW. Allah Yar and Muhammad Arif witnesses told me that the accused persons Karam Khan and Nasir Khan were instigating accused Tasawar Khan and Najaf to commit murder of my son, as I had moved applications to Irrigation Department against the accused, I also narrated this fact to the I.O. Later on, the accused persons also confessed the commission of offence before Nusrat son of Muhammad Bakhsh PW. I produced the witnesses before the police but the I.O. did not record their statements on the pretext that the challan has already been submitted for trial. My grievance had not been redressed by the police, hence I filed this private complaint which is Ex.PJ through my counsel which was read over to me and I put my thumb mark after accepting the contents of the same as correct."

3. After filing of private complaint, learned trial court recorded cursory evidence produced by Abdul Rasheed complainant P. W. 6 and thereafter summoned the appellants and their co-accused mentioned above to face the trial.

4. Learned trial court after observing legal formalities provided under the Criminal Procedure Code framed the charge on 25.09.2008 against Najaf alias Najji, Tasawwar Abbas Khan (appellants), Karam Khan and Nasir Khan (acquitted accused) under sections 302, 109, 324, 34, P.P.C. to which they pleaded not guilty and prosecution evidence was summoned.

5. The prosecution produced Dr. Manzoor Hussain M.O. P.W.1, Ahmad Sher patwari Halqa P.W.2, Ghazi P.W.3, Dr. Muhammad Mumtaz Sial M.S. P.W.4, Fayyaz Mehmood 692/C(R) P.W.5, Abdul Rasheed complainant P.W.6, Ghulam Farid P. W. 7, Ghulam Shabbir P.W.8, Arif P.W. 9, Muhammad Nawaz ASI C.W.1, Khurram Shehzad 128/C C.W.2 and Riaz Hussain S.I. C.W.3, whereas P. Ws. namely Nusrat, Waris, Allah Yar (being won over by the accused), Mukhtar and Shameer (being unnecessary) have given up by the prosecution. Prosecution has tendered in evidence reports of Chemical Examiner Punjab Lahore (Ex.P.K), Serologist (Ex.P.L) and FSL (Ex. P.M) and closed the evidence.

6. Medical evidence has been furnished by Dr. Manzoor Hussain M.O. P.W.1 and Dr. Muhammad Mumtaz Sial M.S. P.W.

4. Dr. Manzoor Hussain M.O. P.W.1 conducted the medical examination of Abdul Aziz deceased in injured condition on 29.09.2007 at 10:00 p.m. and observed as under:- "INJURIES

1. A circular wound with blackening measuring one and half into 1 cm on left lower chest with inverted margins. Injury was kept under observation.

2. A circular wound with inverted smoky margins at lower abdomen at about mid portion of abdomen. Injury was kept under observation.

3. A lacerated wound with everted margins on left side of back near left renal area. Wound is through and through but not probed. Corresponding holes on the Banyan were present. Probable duration of injury was fresh within two hours, kind and nature, of weapon used was firearm. The operation was done at Allied Hospital, Faisalabad per operative findings are below:

1. Stomach perforation.

2. Multiple small gut perforation.

3. Left kidney injured. Nephrectomy done.

4. Rectal injury.

5. Small gut remained only by three feet. MAIN PROCEDURE DONE.

1. Stomach prepared.

2. Left Nephrectomy done.

3. Rectal perforation repaired. Small gut resection done (small gut remain only three feet) and injuries Nos.1, 2 and 3 were declared Jurrah Ghair Jaifah, falls under section 337-C, P.P.C. Section 335, P.P.C. Itlaf Salahiat-e-Udw vide report Ex.P.B. which bears my signatures. OPINION All about the injuries were dangerous for life. Ex.P.A is the correct carbon copy of the MLC while its diagram is Ex.P.A/1 which is in my hand and bear my seal and signatures." Dr. Muhammad Mumtaz Sial, MS, DHQ Hospital, Jhang (P.W.4) deposed as under:- "Postmortem examination on the deadbody of Abdul Aziz son of Abdur Rashid was performed by Dr. Asim Bilal CMO District Headquarter Hospital, Jhang who had gone to abroad and there is no likelihood of his coming back in near future. As being colleague of Dr. Asim Bilal I come to identify his hand writing and signatures. I have brought with me original postmortem examination register containing postmortem report of Abdul Aziz son of Abdul Rashid, caste Kameyana Sial resident of Dargahi Shah, Jhang. I identify the hand writing and signatures of Dr. Asim Bilal on postmortem examination report Ex.P.C. which is in hand writing of Dr. Asim Bilal and signed by him. I also identify his hand writing and signatures on Ex.P.C/1 and Ex.P.C/ 2 the diagram of injuries. Dr. Asim Bilal also endorsed injury statement Ex.P.D and inquest report Ex.P.E and I identify Ex.P.D and Ex.P.E which is in hand writing of Dr. Asim Bilal and signed by him."

7. On the other hand, statements of appellants and their co-accused (since acquitted) were recorded under section 342, Cr.P.C. who refuted the allegations so leveled against them. They neither opted to appear as witness under section 340(2), Cr.P.C. nor produced any oral as well as documentary defence evidence. In reply to question "why this case against you and why the PWs deposed against you?" the appellant Tasawwar Abbas Khan replied as under:- "All the PWs. are related inter se. Abdul Aziz deceased (since deceased) was the man of immoral character and was involved in many stories of outraging modesty of women. Many persons were after his life because of his immoral activities and he was injured by some unknown assailants in the darkness of night. The complainant party remained fail to trace out the actual culprits and involved me and my co-accused on the asking of our political rival." In reply to question "why this case against you and why the PWs deposed against you?" Najaf alias Najji appellant replied as under:- "All the PWs. are related inter-se. Abdul Aziz deceased (since deceased) was the man of immoral character and was involved in many stories of outraging modesty of women. Many persons were after his life because of his immoral activities and he was injured by some unknown assailants in the darkness of night. The complainant party remained fail to trace out the actual culprits and involved me and my co-accused on the asking of our political rival."

8. After conclusion of the trial, learned trial court while acquitting Karam Khan and Nasir Khan (co-accused of the appellants) convicted the appellants (Tasawwar Abbas Khan and Najaf alias Najji) with above stated sentences. Hence this appeal and Crl. Revision for enhancement of sentence of Najaf alias Najji appellant.

9. We have heard the learned counsel for the appellants as well as learned DPG and perused the record.

10. The detail of prosecution case has been given in para 2 of this judgment, therefore, there is no need to repeat the same to avoid duplication and repetition.

11. According to the FIR, occurrence took place on 29.09.2007 at 8:00 p.m., whereas FIR was registered on 30.09.2007 at 12:25 a.m. (midnight) on the written application (Ex.P.G) of Abdul Rasheed complainant P.W.6 (real father of Abdul Aziz deceased). Place of occurrence is the land situated outside of the Abadi of the village. Prosecution has introduced following accused in this case:-

1. Karam Khan

2. Nasir Khan (These two accused have been acquitted by the learned trial court through the impugned judgment but as per learned DPG, the complainant/State has not filed any appeal against the said acquittal)

3. Tasawwar Abbas Khan

4. Najaf alias Najji (appellants)

12. Abdul Rasheed complainant P.W.6 (real father of Abdul Aziz deceased) and Ghulam Farid P.W.7 (paternal uncle/Chacha of Abdul Aziz deceased) claim themselves to be the eye-witnesses of the occurrence. They stated that they were offering Esha prayer on the day of occurrence at 8:00 p.m., meanwhile someone called Abdul Rasheed complainant P. W. 6 outside and he (Abdul Rasheed complainant P.W.6) asked his son (Abdul Aziz deceased) to look outside, who is there, his son Abdul Aziz deceased went out and then went towards North. They further stated that they followed Abdul Aziz deceased. After one acre distance near the reeds bushes, the appellants came in front of Abdul Aziz deceased and made fire shots upon Abdul Aziz deceased. Admittedly, occurrence took place in the field outside the Abadi of the village in the dark hours of the night. We have perused written application (Ex.P.G.) moved by Abdul Rasheed complainant P.W.6 for registration of FIR Ex.C.W.1/A where source of light has not been mentioned by Abdul Rasheed complainant P.W.6. Abdul Rasheed complainant P.W.6 and Ghulam Farid P.W.7 (eye- witnesses) have also not stated in their statements (examination-in-chief) regarding source of light at the place of occurrence. Identity of the appellants in the dark hours of the night is not free from doubt. Place of occurrence is field at the distance of one acre from the house of Abdul Rasheed complainant P.W.6 and Ghulam Farid P.W.7 and according to the prosecution story, someone called Abdul Rasheed complainant P.W.6 from his house, Abdul Rasheed complainant P.W.6 sent Abdul Aziz deceased to look outside that who is there, Abdul Aziz deceased went out of the house and did not return, these two eye-witnesses followed him (Abdul Aziz deceased) and saw the occurrence at a distance of one acre from the house of Abdul Rasheed complainant P.W.6. We have perused rough site plan of the place of occurrence Ex. C.W.3/A and found that names of the appellants (accused) are not mentioned. Riaz Hussain S.I. C.W.3/I.O. of this case stated in cross-examination that the names of the accused are not mentioned in the rough site plan Ex. C.W.3/ A. He further stated in cross-examination that he has not shown any place in the unscaled site plan wherefrom the blood stained earth was secured. He further stated in cross-examination that he has also not mentioned the number of accused who had committed the occurrence. He further stated in cross-examination that he has not shown any place in rough site plan wherefrom the accused had called Abdul Aziz deceased. He further stated in cross-examination that the door of the house was installed in the middle of the Haveli. In front of the door of the house, a millet crop was present. We are surprised to note that if the intention of the appellants was to bring the Abdul Aziz deceased to the place of incident for the commission of crime then they would have not waited for these two eye-witnesses so as to witness the occurrence. This aspect of the case is not fitting in the circumstances of the case and is against the natural conduct of a person. Reliance is placed on case titled "Muhammad Naeern Inayat v. The State" (2010 SCMR 1054) in which Hon'ble Supreme Court of Pakistan has observed at page 1056 as under:- "

4. Having heard the learned counsel for the parties and perusing the record of the case with their assistance, we find that the case of the prosecution hinges upon the evidence of P.Ws.8 and 9 only. The allegation against the appellant was that he took the deceased along with him at the place of incident and then shouted that as per plan he had brought the deceased, therefore, he should be murdered. Both the witnesses deposed such facts, but we are surprised to note that if the intention of the appellant was to bring the deceased to the place of incident for the commission of crime then he would have not requested the complainant and two witnesses to accompany him so as to witness the occurrence. This aspect of the case is not fitting in the circumstances of the case and is against the natural conduct of a person."

13. Riaz Hussain S.I. C.W.3/I.O. of this case stated in his statement (examination-in-chief) that on 02 .10.2007, he proceeded to Allied Hospital, Faisalabad for the purpose of investigation and recorded the statement of Abdul Aziz deceased in injured condition. He stated in cross-examination that he had moved an application to the medical officer seeking permission of medical officer to record statement of the deceased, however, the record of the said application is available with him or on the record. He further stated that according to the opinion of the doctor and according to his own opinion, the deceased at that time was fit to record his statement. He further stated in cross-examination that statement of the deceased in injured condition is available on judicial file as Ex.C.W.3/J. The doctor was available in the ward when he recorded statement of the deceased. Dr. Manzoor Hussain P. W.1 stated in his statement (examination -in-chief) that on 29.09.2007 at 10:00 p.m. he medically examined Abdul Aziz deceased in injured condition and observed following two firearm injuries on his person:-

1. A circular wound with blackening measuring one and half into 1 cm on left lower chest with inverted margins. Injury was kept under observation.

2. A circular wound with inverted smoky margins at lower abdomen at about mid portion of abdomen. Injury was kept under observation. He further stated that operation was done and his operative findings are as under:-

1. Stomach perforation.

2. Multiple small gut perforation.

3. Left kidney injured. Nephrectomy done.

4. Rectal injury.

5. Small gut remained only by three feet. Statement of Abdul Aziz deceased in injured condition was not recorded on the day of occurrence (29.09.2007) rather according to Riaz Hussain S.I. C.W.3/I.O. of this case, the same was recorded on 02.10.2007 when Abdul Aziz deceased was admitted in Allied Hospital, Faisalabad in injured condition, but the learned DPG could not point out any document showing that the relevant medical officer had opined that Abdul Aziz deceased (the then injured) was capable to record his statement and allowed Riaz Hussain S.I. C.W.3/I.O. of this case to record his statement. Riaz Hussain S.L C.W.3/I.O. of this case stated in his statement (cross-examination) that he had not endorsed/attested the statement of Abdul Aziz deceased from the doctor verifying that statement of the injured was recorded by him in Allied Hospital, Faisalabad in his presence. Considering above, we are of the view that Abdul Aziz deceased was not in a position to make statement in injured condition, even otherwise, no absolute rule can be laid down as to the credibility and reliability of a dying declaration which is a weaker type of evidence than evidence which can be subjected to cross-examination. A dying declaration recorded by a Judicial Officer is generally considered to be more reliable than recorded by the police. Each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made so that the Court is satisfied that the same is true and genuine. Dying declaration is a weaker type of evidence, which needs corroboration and that conviction can be based on the basis of such a declaration, when fully corroborated by the other reliable evidence which is missing in the present case. Reliance is placed on case titled "Tahir Khan v. The State" (2011 SCMR 646) in which Hon'ble Supreme Court of Pakistan has observed at pages 656, 657 and 658 as under:- "the legal position of a dying declaration was considered by this Court and it was observed that no absolute rule can be laid down as to the credibility and reliability of a dying declaration. It was observed that dying declaration is "a weaker type of evidence than evidence which can be subject to cross examination." It was also observed that a dying declaration recorded by Judicial Officer is generally considered to be more reliable than recorded by the Police. The further observation of the Court was that "it cannot be laid down as an absolute rule of law, nor even of prudence, that a dying declaration cannot form the sole basis of conviction unless it is corroborated. Each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made so that the Court is satisfied that the same is true and genuine." In Nazim Khan and 2 others v. The State 1984 SCMR 1092, it was observed that "Another factor which reacts adversely on the dying declaration is its lack of integrity and correctness. It is a tact that in all six persons were named in it as equally responsible for firing and causing thereby the death of two persons. One Muhammad Afzal named therein was discharged by the police finding weight in his plea of alibi. The two Courts have considered the involvement of Walidad and Mirdad, the two elderly persons, as highly improbable on account of their maturity, old age and the very nature of the errand." And that "the mere abscondence of the persons charged does not, on the facts of this case, furnish any corroboration because it is a factor common to all those who were charged." In Mst. Ghulam Zohra and another v. Malik Muhammad Sadiq and another (1997 SCMR 449), it was observed that the dying declaration, could itself be a good enough for sustaining conviction. In Farmanullah v. Qadeem Khan and another (2001 SCMR 1474) it was observed that no rule of absolute nature can be laid down that dying declaration cannot be made sole basis for conviction unless corroborated. In Mst. Zahida Bibi v. The State (PLD 2006 SC 255) it was observed that dying declaration like the statement of an interested witness require close scrutiny and that it was a weak kind of evidence being without the test of cross examination. In Farman Ahmad v. Muhammad Inayat and another (2007 SCMR 1825) it was again reiterated by this Court that such a declaration would require close scrutiny and corroboration.

12. It is thus absolutely clear from the principles laid down by this Court that a dying declaration is a weaker type of evidence, which needs corroboration and that conviction can be based on the basis of such a declaration when fully corroborated by the other reliable evidence. Thus the facts and circumstances of each case, have to be kept in view and also the credibility, reliability and acceptability of such a declaration, by the Court."

14. Abdul Rasheed complainant P. W. 6 stated regarding motive of the occurrence in his written application (Ex.P. G) as under:- Abdul Rasheed complainant P.W.6 stated in his statement (examination-in-chief) that he moved application to Irrigation Department against the appellants but has failed to produce the same in the present case. No witness from the Irrigation Department has been produced by the prosecution to prove the motive story. In view of the above discussion, we are of the view that the prosecution has failed to prove the motive. Reliance is placed on case titled "Ghulam Mohy-ud-Din alias Haji Babu and others v. The State" (2014 SCMR 1034) in which Hon'ble Supreme Court of Pakistan has observed at page 1044-as under:- "In the present case a specific motive was set up in the FIR at the time of reporting the crime by the complainant. He had alleged that there was a dispute between the parties over a 'Khokha' (wooden stall), however, no independent corroboratory evidence on this point was furnished. Thus, the version, repeating the same stance at the trial, without any independent corroboratory evidence in this respect, would have no legal worth and judicial efficacy. It has been claimed that the dispute had led to civil litigation over the 'Khokha' but no document from judicial record was furnished to the trial Court to show even to a little extent that indeed the dispute over a 'Khokha' was a burning issue between the parties and they had already been battling for the same in the Civil Court. Thus, the motive part of the incident has remained absolutely unproved".

15. Riaz Hussain S.I. C.W.3/I.O. of this case stated in his statement (examination-in-chief) that on 17.10.2007, Tasawwar Abbas Khan appellant was arrested and on 24.10.2007 during interrogation, Tasawwar Abbas Khan appellant disclosed and got recovered pistol .30 bore P-4 from his "Ehata Muwashian". Report of FSL (Ex.P.M.) shows that crime empties allegedly recovered from the place of occurrence were received in the office on 04.04.2008 after the arrest of Tasawwar Abbas Khan appellant (17.10.2007) and after the recovery of pistol .30 bore P-4 (24.10.2007). Considering above, possibility of manufacturing of the crime empties before their dispatch to the said agency could not be ruled out of consideration and thus positive report of FSL (Ex.P.M.) is not believable and the same is hereby discarded. Reliance is placed on case titled "Masood Aslam alias Shada v. The State" (2002 PCr.LJ 1603) in which Hon'ble Division Bench of this Court has observed at page 1610 as under:- "The recoveries effected during the investigation of this case had not been believed by the learned trial Court for the detailed reasons recorded in the impugned judgment. Even otherwise the alleged recoveries of fire-arm weapons from the appellants were not of much avail to the prosecution as the statements of PWs.2, 5 and 11 show that the crime-empties and the said weapons had been sent to the Forensic Science Laboratory together. Thus a possibility of manufacturing of the said crime-empties before their dispatch to the Forensic Science Laboratory could not be ruled out of consideration." Learned DPG submits that nothing was recovered from Najaf alias Najji appellant during interrogation.

16. The evidence furnished by Ghulam Shabbir P.W.8 regarding extra judicial confession allegedly made by Karam Khan (acquitted accused) is not helpful to the prosecution. Likewise, evidence of Arif P.W.9 regarding hatching of conspiracy is neither plausible nor believable.

17. In view of the above discussion, case of the prosecution is not free from doubt. It is settled principle of law that for giving benefit of doubt, it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in the prudent mind about the guilt of the accused, then they would be entitled to its benefit not as a matter of grace or concession, but as of right. Reliance is placed on case reported as "Muhammad Akram v. The State" (2009 SCMR 230), in which Hon'ble Supreme Court of Pakistan has observed in para No. 13 of page 236 as under:- "The nutshell of the whole discussion is that the prosecution case is not free from doubt. 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."

18. For the foregoing reasons, Criminal Appeal No.1480 of 2013 filed by appellants (Najaf alias Najji and Tasawwar Abbas Khan) is accepted and convictions and sentences of the appellants awarded by the learned Trial Court through the impugned judgment are hereby set aside. Both the appellants (Najaf alias Najji and Tasawwar Abbas Khan) are ordered to be acquitted in private complaint under sections 302, 324, 109, 34, P.P.C. arising out of case FIR No.419 dated 30.09.2007 under section 324/34, P.P.C., Police Station 18-Hazari, District Jhang. They are directed to be released forthwith if not required in any other case. Murder Reference No.312 of 2013 is answered in NEGATIVE and death sentence of Tasawwar Abbas Khan appellant is NOT CONFIRMED.

19. In view the above, Criminal Revision No.845 of 2013, filed by Abdul Rasheed complainant P.W.6 for enhancement of sentence of Najaf alias Najji appellant has become infructuous and is disposed of accordingly. JK/N-41/L Appeals accepted.