2007 SCMR 661 (PLP)

JUSTICE CH. IJAZ AHMED (MEMBER).

We intend to decide the captioned petitions by one consolidated judgment arising out of the common impugned judgment of the Federal Shariat Court, dated 24-10-2003. Necessary facts out of which the present petitions arise are that the petitioners are involved in case F.I.R. No.167 of 1996 along with acquitted co-accused which was registered at Police Station Mumtazabad Multan under sections 460/302, 396/412, P.P.C. 337-A(i), 337-F(i), 148/149, P.F.C. on the written complaint of Muhammad Rafiq P.W.3. The facts as narrated in the F.I.R. and noted by the Federal Shariat Court in its impugned judgment vide para.3 are as follows: "that he was resident of Chah Muratwala Multan and was employed in the Telephone Department. On 24-4-1996 at about 10-30 p.m. he along with his wife Mst. Wahida Begum and Muhammad Taufiq; his brother-in-law, were busy in seeing T.V. in his house while in the compound of the house his father, brother and children were asleep. All of a sudden, three young persons carrying fire-arms (description given in the F.I.R.) entered the room and forced the complainant party to put their hands up. The complainant glanced towards the courtyard and found two persons (description given in the F.I.R.), one armed with pistol standing near the head of his father and the other, armed with Khanjar standing towards the had side of his brother Muhammad Sharif. It was alleged that accused (mentioned at serial No.1 in the F.I.R.) forcibly robbed him of Seiko wrist watch, one golden ring and one purse containing some currency notes and identity card etc. The same accused forcibly took off four golden bangles from the arm of his wife. While he was trying to take off her ear-rings, Muhammad Taufiq and his wife offered resistance and. tried to catch hold of the accused armed with mousar, who fired it at Muhammad Taufiq; hitting him on the chest. Muhammad Taufiq fell down. The wife of the complainant tried to escape and she was given a butt blow with the pistol by the second accused, while the complainant was also given butt blow with the mousar by the first accused. On hearing hue and cry, the father of the complainant, brother and children woke up and the accused gave injuries to his father. The wife of the complainant went upstairs and raised alarm on which the accused resorted to firing. In the meantime Shafique son of Shafi, Abdul Ghaffar son of Din Muhammad rushed there and they tried to apprehend the accused. The accused who was handling the mousar was taken into Japha by the complainant whereas the other accused succeeded in running away through main gate along with the looted articles. The mousar was snatched from the accused. One magazine of the pistol of one of the accused which fell down while he was trying to make good his escape was also taken into possession. The accused who had been secured disclosed his name as Waqar Nazir (appellant) and he also mentioned the names of his co-assailants, who had run away, as Muhammad Jamil, Muhammad Aslam, Allah Bakhsh alias Baggu and Muhammad Rafi. Muhammad Taufiq was taken to Nishtar Hospital but he succumbed to the injury before reaching there." The challan was submitted by the Investigating Agency after investigation before the competent Court against the petitioners and other acquitted co-accused. The learned trial Court had completed the formalities such as framing of charge, recording of evidence of prosecution witnesses and statement of accused under section 342, Cr.P.C. The Additional Sessions Judge, Multan vide its judgment dated 12-8-1999 convicted and sentenced the petitioners as under: Name of accused Under sections Sentence Waqar Nazir (1) 302(b), P.P.C. Death sentence as Tazeer (2) 17(4)/6/79 This offence is not applicable (3) 460, P.P.C. Imprisonment for life (4) 324, P.P.C. One year's R.I. (5) 337-A(i), P.P.C. Two years' RI. Compensation of Rs.1,00,000 to the heirs of the deceased, in case the petitioner fails to pay the compensation then he shall further suffer one year's S.I. Muhammad Aslam (1) 302(b), P.P.C. Life imprisonment as Tazeer. (2) 460, P.P.C. Life Imprisonment along with compensation of Rs.1,00,000 to be paid to the heirs of the deceased and on non-payment of compensation to suffer further one year's S.I. (3) 324, P.P.C. Ten years' R.I. Muhammad Hanif (1) 411, P.P.C. Imprisonment of three years already undergone. (2) 302, 460, 324, P P C. Acquitted by giving benefit of doubt. Allah Bakhsh (1) 411, P.P.C.. Imprisonment of three years already undergone (2) 302, 460, 324, P.P.C. Acquitted by giving benefit of doubt. It is pertinent to mention here that trial Court acquitted Muhammad Jamil their co- accused by giving him benefit of doubt. Petitioners being aggrieved filed Criminal Appeal No.137-L of 1999 (Waqar Nazir) and Criminal Appeal No.136-L of 2001 (Muhammad Aslam) before the Federal Shariat Court respectively. The learned Federal Shariat Court dismissed the appeals of the petitioners vide its impugned judgment as mentioned above. Hence these petitions.

2. The learned counsel for the petitioner Waqar Nazir submits that prosecution had concealed the material facts in the contents of the F.I.R. as evident from the contents of the F.I.R. and Karwai police. The contents of the police Karwai and F.I.R. are not in consonance with each other. He further maintains that this fact does not borne out from the contents of the F.I.R. that Waqar Nazir had committed the murder of Muhammad Taufiq. He further submits that Waqar Nazir .was overpowered by the prosecution as evident from the contents of the F.I.R. according to which petitioner had taken articles by force from the inhabitants of the complainant. The said articles were not recovered from petitioner Waqar Nazir and this fact was not considered by both the Courts below in its true perspective. He further submits that according to the contents of the F.I.R., the petitioner Waqar Nazir which was at serial No.1 according to the description mentioned in the F.I.R. and he had (sic) not responsible for murder of Muhammad Taufiq. The person at serial No.3 was responsible for the commission of offence to inflict fire injuries to the deceased. This fact was also not considered by the Courts below in its true perspective. He further submits that weapon of offence recovered from Waqar Nazir was handed over to the police but this fact was not mentioned in the Karwai police. This fact alone is sufficient to show that prosecution had concealed material fact and narrated concocted story in Exh.P.C. by Muhammad Rafique P.W. and this fact was also not considered by the Courts below along with factum that Waqar Nazir allegedly apprehended by the prosecution according to the story of the prosecution but this fact was not mentioned or borne out from Karwai police. He further maintains that prosecution had failed to prove the case against the petitioner beyond any shadow of doubt. Both the Courts below had given benefit of doubt to the prosecution in violation of principles of criminal jurisprudence. The benefit of doubt is always given to the, accused. He further submits that presence of the prosecution witnesses at the place of occurrence was highly doubtful and this fact was also not considered by the Courts below in its true perspective and in fact the petitioner was convicted and sentenced on surmises and conjectures. Presence of all the three eye-witnesses namely Muhammad Rafiq P.W.3, Muhammad Sharif P.W.4 and Shafiq Ahmed P.W.5 were not established on record. He further maintains that there is no report of Forensic Science Laboratory to establish that the weapon of offence recovered from the petitioner was matched with empties recovered from the spot. He sums up his argument that prosecution story was proved concocted in view of the acquittal of the co-accused by the trial Court. Therefore, both the Courts below had erred in law to convict and sentence the petitioner on the basis of the same evidence. He lastly submits that both the Courts below were not justified to award capital punishment of death to the petitioner.

3. The learned counsel of the petitioner Muhammad Aslam submits that Muhammad Aslam was known to the prosecution witnesses as evident from cross-examination of Muhammad Sharif P.W.4 and Shafiq Ahmed P.W.5. The statement of Muhammad Rafique P.W.3 to this extent is not trustworthy in view of contradiction with the admission of P.W.4 and P.W.5 mentioned above. This fact was not considered by the Courts below in its true perspective. As the prosecution witnesses had known the petitioner prior to the occurrence and they did not mention his name in the F.I.R. therefore, prosecution story to the extent of the petitioner Muhammad Aslam is doubtful. He further urges that Muhammad Aslam was involved in this case due to enmity and litigation with the uncle Haji Ghafoor of the complainant Muhammad Rafique P.W.3 who had rented his house to him. Dispute arose between uncle of the complaint and the petitioner regarding payment of rent and this plea of the petitioner was also admitted by Muhammad Sharif P.W.4 in cross-examination. The prosecution had failed to establish the case against Muhammad Aslam petitioner. Therefore, both the Courts below were not justified to convict the petitioner on the basis of surmises and conjunctures. The benefit of doubt was given by the Courts below to the prosecution instead of the accused petitioner.

4. Learned counsel of the State has supported the impugned judgment.

5. We have given our anxious consideration to the contentions of the learned counsel for the parties and perused the record. All the contentions raised by learned counsel for the petitioner Waqar Nazir were noted and rejected by the Federal Shariat Court in the impugned judgment as depicted from paragraphs 15 and 26 with cogent reasons. It is a settled law that this Court is not required to act as a Court of appeal for reappraisal of evidence recorded by the Federal Shariat Court while exercising constitutional powers unless and until the learned Federal Shariat Court had reappraised the evidence in violation of any provisions of law or any principle laid down by this Court. The learned Federal Shariat Court had taken a lot of pain to reappraise the evidence on record keeping in view the principle laid down by this Court. As mentioned above, in fact the learned Federal Shariat Court had taken a lot of pain to discuss each and every piece of evidence. It is an admitted fact that both the Courts below arrived at concurrent conclusions that the petitioner Waqar Nazir was overpowered at the spot. This piece of evidence and other pieces of evidence brought on record put together make the chain against the petitioner so strong to connect him with the commission of offence. It hardly leaves any room for doubt about his involvement in the offence whatsoever. The learned Federal Shariat Court had come to the conclusion that the crime weapon described as mouser was pistol used by Waqar Nazir which was snatched from him and produced before the police by the complainant. The Federal Shariat Court was also justified to come to the conclusion that non-mentioning of the certain contents of the F.I.R. in the police Karwai was inconsequential. The conclusion arrived at by the Federal Shariat Court was in consonance with the evidence on record. Similarly the finding of the Courts below qua the non-recovery of robbed articles from petitioner was in consonance with the evidence on record. In the interest of justice and fairplay, we have also re-examined the evidence on record with the assistance of the learned counsel for the parties. We are also of the view that finding recorded by the Courts below were justified in accordance with the principle laid down by this Court. It is a settled law that finding of fact recorded by the Courts below or arriving at concurrent conclusions, this Court does not, normally, interfere to disturb the conclusions while exercising constitutional power unless and until the Courts below had come to the conclusion in violation of any principle laid down by this Court as mentioned above as law laid down by this Court in Fazle Razaq's case 1985 SCMR 128 and Muhahid Hussain's case 1984 SCMR 54.

6. In the case in hand to the extent of Waqar Nazir, we do not find illegality or infirmity in the impugned judgment, therefore, the Criminal Petition No.35(S) of 2003 filed by Waqar Nazir is dismissed. Leave refused.

7. So far as the case of Muhammad Aslam petitioner is concerned, it is distinguished on facts and. law as compared to the case of the Waqar Nazir petitioner. We perfectly conscious that as ultimate Court in the country, this Court, as .a rule should give due weight and consideration to the, opinion of the Courts below and in particular to the opinion of the Court of first instance which had the advantage of hearing the parties, witnesses and watching their demeanour. Normally this Court does not, therefore, with the findings of fact reached by the primary Courts or Federal Shariat Court when it is satisfied that the findings of the Courts below arc on the whole reasonable and are not arrived at by disregarding any provision of law or any accepted principle concerning the appreciation of evidence. In the instant case with regard to Muhammad Aslam petitioner, it is difficult to avoid the impression that the conclusions reached by the Federal Shariat Court and the trial Court suffer from serious error of law and fact, which unless set right are likely to result in miscarriage of justice. It is better and appropriate to reproduce plea of the petitioner and relevant portions from the cross-examination of the witnesses to resolve the controversy between the parties:-- Plea of petitioner Muhammad Aslam "Q.10. Why this case against you and why the P.Ws. have deposed against you? Ans. I am innocent. In fact Haji Ghaffar P.W. uncle of the complainant rented his house to me. A dispute arose between Abdul Ghaffar and myself regarding payment of rent. Due to this grudge, Rafique and Abdul Ghaffar P.W. involved me in this case falsely." Cross-examination of P.W.3 "Waqar accused was not previously known to me. Similarly none of the accused was .known to me in earlier. Sharif P.W. is my real brother. His house of Sharif is in the same boundary where I reside." Cross-examination of P.W.4 "Aslam accused was our neighbourer some time ago and Hanif accused used to visit him. The soap factory is owned by Hanif accused, which is at a distance of more than one mile. Aslam accused was living in rented house before occurrence just behind our house and at the time of occurrence he was living in Pir Colony." Aslam accused had been living in rented house owned by Ghaffar P.W. in our Muhallah. Aslam accused known to Rafique P.W. before the occurrence." Cross-examination of P.W.5 "Aslam accused was previously known to me whereas Jamil and Hanif had been on visiting terms with Aslam and I had seen them. The occurrence was engineered by Muhammad Aslam.

8. In case the defence plea and the aforesaid portions of cross-examination of prosecution witnesses are put in a juxtaposition, then it is crystal clear that both the Courts below had convicted and sentenced the petitioner without judicial application of mind in its true perspective as evident from the contents of the impugned judgment of the Courts below. It is a settled law that defence has only to make out a possibility of its version being true and is not required to prove its plea beyond reasonable doubt. It is also settled law that statement of the accused in defence if found reasonably possible from material on record then accused could be given benefit of doubt and acquitted as the law laid down by this Court in following judgments: (i) Waris's case PLD 1981 SC 127 and (ii) Safdar Ali's case PLD 1953 FC 93.

9. It is also a settled law that in case reasonable possibility exists that the defence plea might be true entitles the accused to benefit of doubt as of right. See Muhammad's case 1972 SCMR 264, Ghulam Muhammad's case PLD 1976 SC 241 and Nadeem-ul-Haq Khan's case 1985 SCMR

510. It is also a settled law that in case defence version receiving the support from prosecution evidence then benefit of doubt be given to the accused as law laid down by F.C. in Safdar Ali's case (supra) and Shamala's case PLD 1958 SC Pak.

242. As mentioned above both the Courts had convicted and sentenced the petitioner Muhammad Aslam in violation of the aforesaid principles laid down by this Court and benefit of doubt be given to the petitioner. It is settled law that benefit of doubt must be given to the accused instead of prosecution but in the present case both the Courts below have failed to consider this aspect of the case at all.

10. For what has been discussed above, this Jail Petition No.1(S) of 2004 is converted into appeal and is allowed. The impugned judgment to the extent of Muhammad Aslam petitioner is set aside. Consequently he is acquitted by giving benefit of doubt. He is directed to be released forthwith if not required in any other criminal case. M.H./W-9/SC Order accordingly.