2022 PLP 393 (SCMR)

SARDAR TARIQ MASOOD, J.

Appellants Pervaiz Khan and Muhammad Aslam Khan along with co-accused Zia Ullah, Rafi Ullah Khan and Abdul Sattar Khan faced trial in case FIR No. 59 dated 01.05.2008 registered under sections 302, 148 and 149, P.P.C. at Police Station Musa-Khel, District Mianwali. At the conclusion of trial, learned Additional Sessions Judge, Mianwali vide judgment dated 22.09.2011 convicted the appellants under section 302(b), P.P.C. and sentenced them to death on two counts. They were further directed to pay compensation of Rs.2,00,000/- to the legal heirs of each deceased under section 544 A, Code of Criminal Procedure, or in default thereof to further undergo six months Simple Imprisonment on each count. Through the same judgment, co-accused Zia Ullah, Rafi Ullah Khan and Abdul Sattar were acquitted. Feeling aggrieved, appellants filed a Criminal Appeal before the Lahore High Court, Lahore. A Murder Reference was sent by the learned trial court against appellants Pervaiz Khan and Muhammad Aslam Khan for its confirmation or otherwise. A Criminal Appeal was also filed by the complainant against the acquittal of the co-accused. Vide impugned judgment dated 17.03.2016, the appeal filed by the appellants was dismissed however their sentence of death was altered into imprisonment for life on each count and Murder Reference was answered in Negative. Benefit of section 382-B, Cr.P.C. was also extended to them. All the sentence were ordered to run concurrently. Criminal Appeal filed by the complainant was also dismissed. Thereafter, jail petitions were filed by the appellants wherein leave was granted by this Court on 24.08.2020. Hence, the instant Criminal Appeals.

2. We have heard the learned counsel for the appellant, learned Deputy Prosecutor General, Punjab as well as the learned counsel for the complainant at length and perused the impugned judgment as well as the available record with their able assistance and observed that in the FIR seven accused were nominated and it is specifically mentioned that all of them fired upon both the deceased persons namely Akbar Khan and Muhammad Khan who were sitting in a car. It is alleged that Pervaiz Khan, Muhammad Aslam Khan, appellants and Saleem (P.O.) fired, hitting on the forehead and head of the deceased persons thereafter the remaining i.e. Raft Ullah, Muhammad Iqbal, Abdul Sattar and Zia Ullah Khan also fired at both the deceased, hitting on different parts of their bodies. Doctor observed injuries on the heads of both the deceased and also on different parts of their bodies. So the role of those four who fired subsequently also get support from the medical evidence but the trial court acquitted Rafi Ullah Khan, Abdul Sattar and Zia Ullah from the charge while disbelieving the eye-witness account to their extent. In para No. 34 the trial Court had observed that from the prosecution's evidence the involvement of accused Zia Ullah, Rafi Ullah and Abdul Sattar is not proved in this occurrence and their participation in this occurrence is highly doubtful and their involvement seems to be the result of their relationship and friendship with the main accused. The trial court also observed that a single doubt in a prudent mind is sufficient for acquittal of the accused and while extending the benefit of doubt, three accused were acquitted by the High Court which acquittal was upheld by the High Court. The High Court through the impugned judgment concurred with the findings of the trial court regarding the acquittal of three co-accused who actively participated in the occurrence and their role was getting support from the medical evidence meaning thereby the witnesses of the ocular account have been disbelieved qua the said acquitted co-accused and their evidence cannot be taken into consideration against the present appellants in the absence of any corroboratory piece of evidence which is totally missing in this case because the FSL report to the extent of one of the appellant is negative and even no recovery was effected from the other appellant. Learned counsel for the complainant tried to distinguish the case of the present appellants from the case of the acquitted accused by saying that as present appellants firstly fired upon the deceased hence the subsequent firing by the remaining accused although has been disbelieved but cannot give any benefit to the appellants. This argument has no force because in the FIR and also during the trial all the witnesses of the ocular account remained consistent on the point that all the seven accused fired upon the deceased persons and their bullets hit the deceased on different part of their bodies. So there is nothing on record to distinguish the role of the present appellants from the role of those accused who have been acquitted by the trial Court and their acquittal has been maintained by the High Court and further their acquittal was never challenged before this Court. Due to the above circumstances, the conviction and sentence of appellants is not sustainable on the same set of evidence, which was found doubtful to the extent of three acquitted co-accused.

3. Besides the above legal aspect of the case we have also observed that according to prosecution the two deceased were sitting in the car whereas three eye witnesses along with the tractor driver were sitting on the tractor whereas at least two of them or three of them could be accommodated in the car and there was no reason for them to available on the tractor at that time. Even otherwise according to prosecution tractor was behind the car and in that eventuality the claim of the witnesses that firing of the present appellants hit on the head of the deceased in the car is not believable as from behind, looking the seat of injury which was on front of the body of the deceased was not possible. Even otherwise according to prosecution the witnesses had seen the appellants and the other co-accused in the head light of the tractor but the investigating officer categorically stated that the said tractor was produced before him after six days of the occurrence and the same was not available at the spot when he visited the place of occurrence. Even there is nothing on record to say that even anyone had checked whether the head lights were in working order or not. So the source of light has not been established by the prosecution especially when the tractor was not available at the place of occurrence when police arrived and the same produced for the first time after six days of the occurrence. There is another circumstance that according to prosecution the occurrence took place at 7 p.m. whereas the FIR was chalked out at 11:35 p.m. Although complainant claimed that he arrived in the hospital within one or one and a half hour but even then the report was lodged in the hospital at 11:15 p.m. There is no explanation as to why after reaching the hospital when both the deceased had succumbed to the injuries why they had not reported to the police and where this time was consumed, obviously this time was consumed for deliberation and consultation. This delay could not be explained by learned counsel for the complainant. There is another circumstance that although the dead body was available in the hospital and according to prosecution police also arrived at 11:15 p.m. and the documents of the dead bodies were prepared but postmortem were conducted on the following day i.e. 02.05.2008 at 5 and 6 a.m. So this delayed postmortem also indicates that till time the documents were not prepared and during this time the matter remained under consultation creating serious doubt regarding the prosecution case. The argument of the learned counsel for the complainant that appellants remained absconder and this could be a corroborative piece of evidence has no force because the acquitted accused also remained absconder and this corroborative piece of evidence was also available against them but they have been acquitted. The negative report of FSL also creates doubt regarding the prosecution case. There is another circumstance which creates doubt that in para No. 3 of the inquest report although the date is mentioned but the time of knowing about the death is not mentioned. On the other hand the doctor while conducting postmortem examination in postmortem report had categorically stated that according to police paper the time of death is 10:45 p.m. whereas according to eye-witnesses the occurrence took place at 7 p.m. The learned counsel for the complainant could not give any plausible explanation regarding this inconsistency and as to why the time of death was not mentioned in the column No. 3 of the inquest report and if not then why the doctor had mentioned the time of death as 10:45 p.m. as according to doctor this time was furnished to him by the police. This fact also creates a serious doubt regarding the prosecution case regarding the time of death and it seems that after 10:45 p.m. the dead bodies were found and thereafter this story was prepared. The availability of the eye-witnesses at the tractor as already discussed is doubtful on the other hand Fateh Khan who was driving the tractor and who was a person who can be said that he was present at the place of occurrence was not produced during the trial and his evidence was withheld by the prosecution.

4. All the above mentioned circumstances create serious doubt upon the prosecution case and especially when the eye-witnesses have been disbelieved qua three co-accused who have been acquitted by the trial court although actively participated in the occurrence and their acquittal remained unchallenged before this court. Consequently, while extending the benefit of doubt to the appellants Pervaiz Khan and Muhammad Aslam Khan, these appeals are ALLOWED. The conviction and sentence passed against these two appellants by the Courts below is set aside and they are acquitted of the charge in the instant case. They shall be released from the jail forthwith if not required to be detained in any other case. MWA/P-1/SC Appeals allowed.