2017 PLP 1601 (SCMR)

MAZHAR ALAM KHAN MIANKHEL, J.

The instant appeal with the leave of the Court has arisen out of the judgment dated 26.11.2008 of the Lahore High Court, Bahawalpur Bench whereby it allowed the appeal, filed by Respondent No.1, and acquitted him of the charges whereas the Murder Reference, sent by the trial Court, was answered in the negative.

2. The facts in brief of this case are that the Respondent No.1 along with his co-accused namely Muhammad Ashraf, brother of the respondent, Master Khalid and Muhammad Ali were booked in case FIR No.231 dated 22.08.2003 registered under sections 302/34/109, P.P.C. at Police Station Faqir Wali, District Bahawalnagar. According to the contents of the FIR, Complainant-Muhammad Asif (now deceased) lodged the said FIR under his statement that he was a resident of Chak No.164/7-R and was a cultivator by profession. On the fateful day when he on his return to the village from his dera reached near the house of one Khadim Hussain situated near Gharbi Basti, Muhammad Safdar-Respondent No.1, armed with repeater, and his brother Muhammad Ashraf, empty handed, came there at his front and accused, Muhammad Safdar, while raising Lalkara started firing which hit him at his arm, chest and belly. In the meanwhile, Muhammad Zafarullah, Basharat Ali and Muhammad Siddique reached there and witnessed the occurrence. In the FIR, the main role of fire shot was attributed to Respondent No.1 while his co-accused were named with the role of abetment. The motive as alleged by the complainant behind the occurrence was an election dispute. After arrest of the accused persons, challan was submitted in Court and a formal charge was framed against them. They neither opted to get recorded their statements under section 340(2) nor produced any defence evidence and in their statements recorded under section 342, Cr.P.C. they denied all the allegations leveled against them. The trial Court, on conclusion of the trial, acquitted all the three co-accused and while convicting Respondent No.1 under section 302(b), P.P.C. sentenced him to death with further direction to pay Rs.1,00,000/- as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. and or in default thereof to further undergo six months' simple imprisonment.

3. Being aggrieved the Respondent No.1 preferred appeal before the High Court which was accepted and he was acquitted of the charge and the Murder Reference sent by the trial Court for confirmation of his death sentence was answered in the negative. Basharat Ali, who is one of the eye--witnesses of the case i.e. PW.6, preferred Criminal Petition No.613-L/2003 before this Court against the judgment of the High Court in which leave to appeal was granted vide order dated 16.09.2009. Hence the instant appeal with the leave of the Court.

4. Learned counsel for the parties were heard and record of the case was perused. Perusal of the same would reveal that the fate of this case depends upon the statement of the complainant who after lodging of the FIR died on the very next day and which is the moot point in this case. There are two eye -witnesses in this case i.e. Basharat Ali-Appellant (PW.6) and Muhammad Siddique (PW.7) whereas Dr. Muhammad Ramzan (PW.1), (the Doctor) examined the deceased Muhammad Asif, then injured, and Rao Muhammad Farooq (PW.10) is the I.O. (the I.O.) of the case. After perusal of the statements of all the above witnesses, glaring and serious contractions have been found by us. In his examination-in-chief, the Doctor stated that when the deceased was brought to the hospital his condition was not satisfactory meaning thereby that he was not in a condition to record his statement but at the same time he stated that on the basis of his report, police recorded his statement on the same day. What astonishing is that when he confronted in cross-examination he admitted that statement of the deceased was not recorded in his presence and he simply verified it at the behest of the I.O. Moreover, in his statement he made it clear that none from the public was present when statement of the deceased was recorded in the hospital which contradicts the statement of PW.6 Basharat Ali (appellant herein) who in his statement admitted that besides the I.O. 10 to 15 persons were present there. The Doctor firstly refused to remember as to by whom the deceased was brought to the hospital but when confronted he admitted that it was Safdar Hussain (PW.5) a police constable but at the same time he volunteered that the deceased was brought by his relatives which makes the statement of the doctor as surprising because none of the relatives was mentioned in the MLC. According to the Doctor, the deceased, then injured, was first brought to the police station by his relatives where he also was sitting and the I.O. asked him to provide emergency treatment to the deceased, then injured, but to contradict his statement Safdar Hussain (PW.5) gave a different statement in this regard as according to him the deceased, then injured, was brought to the police station by his relatives and the I.O. after preparing the injury statement, deputed him to get conducted his medical examination whereas the Doctor refused to remember whether the said Safdar Hussain accompanied the deceased to the hospital. Another aspect of the case is that on the day of medical examination of the deceased, Dr. Muhammad Ramzan was sitting in the police station in connection with his some personal affairs as such the apprehension of the accused party with regard to their personal relations and also admission on the part of Doctor that he verified the statement of the deceased on asking of the I.O. cannot be ruled out. Above all, the more important factor of this case which is also the moot point of the matter is that according to the Doctor the statement of the deceased was neither recorded in his presence nor signed by him or read over or explained to the deceased which puts a question mark on the genuineness of this document and when the genuineness of this document become doubtful nothing left behind as this was the origin of the case i.e. FIR recorded by the complainant (deceased) himself.

5. Keeping in view the above bulk of contradictions in the statements of the PWs., the prosecution's story cannot be believed and that too when the same has been disbelieved to the extent of all the acquitted co-accused as such Respondent No.1 has rightly been acquitted by the High Court through the impugned judgment. In criminal cases if material contradictions are found in the statements of the witnesses the benefit thereof would go to the accused party. Resultantly, this appeal, having no merit, is hereby dismissed. MWA/B-2/SC Appeal dismisse