IN THE LAHORE HIGH COURT BAHAWALPUR BENCH

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Stereo.HCJDA33.
Judgment Sheet
IN THE LAHORE HIGH COURT
BAHAWALPUR BENCH BAHAWALPUR
JUDICIAL DEPARTMENT
1.
Crl. Appeal
Muhammad
No.lI4 of 2009
Ayub
Versus The State etc.
2. Crl. Appeal No .L20of 2009
Ali
Rajab
Versus The State etc.
Date of Hearing:
14.1
Appellant by:
Malik Sadiq Mahmood Khurram, Advocate
State by
Ch. Asghar
Complainant by
Mr. Muhammad Umair Mohsin, Advocate
0.2015
Ali Gill, D.P.G.
KIIALID MAHMOOD MALIK. J. By way of
consolidated judgment
this
we would like to decide Criminal
Appeal No.114 of 2009(Muhammad Ayub Vs. The State etc.),
and Criminal Appeal No.120 of 2009 (Rajab
Ali Vs. The Sate
etc.) as both appeals have emanated out of same judgment
dated 27.03.2009, passed by learned Addl: Sessions Judge
Liaquatpur in case F.I.R No.80/2005, dated 25.04.2005, under
Sections 302134 PPC, registered at Police Station Taranda
Muhammad Panah, District Rahim Yar Khan.
2.
Through
criminal Appeal
No.lI4 of
2009,
Muhammad Ayub, appellant has assailed j.rdgment dated
27.03.2009,
pdssed
by
learned
Addl:
Sessions Judge
Crl. Appeal No.l I 412009
Crl. Appeal No. 12012009
Liaquatpur, whereby he convicted Muhammad Ayub, appellant
under Section 302(b) PPC and sentenced him to undergo R.I
for life as Ta'zir alongwith compensation of
payable
Rs.1,00,000/-
to the legal heirs of the deceased. Failing which,
appellant shall further undergo S.I for six months. He will be
given the benefit of Section 382-B of Cr.P.C.
Through criminal Appeal No.I20 of 2009, Rajab Ali
3.
(complainant) has also called in question above-said judgment,
whereby respondents Muhammad Afzal, Ghulam Madni,
Nasrullah and Muhammad Abbas were acquitted of the charge.
4.
The facts of the case as narrated by Rajab
(PW-9)
Ali, complainant
in his statement before the trial court and same
statement is hereby reproduced for narration of the facts:-
"About one year and 10 % months back son
of Abdul Rasheed came to Khangarh Doma
to purchase some household articles, where
he exchanged hot words with my son Madni
aged about 8- 10 years and the matter was
patched up. Son of Abdul Rasheed went to
his house and made a complaint against my
son to his maternal uncle(Mamoon). Ayub
and Abbas accused persons kept grudge
against my son due to hot words exchanged
between my son and son of Abdul Rasheed.
Two days after the first incidence I
alongwith Barkat Ali, Muhammad Nawaz
and Fida Hussain came to Bait Blouch
where I own agrrcultural land. At about
1.00 p.m. we were collecting and tying
bundles of Chaff. Ayub accused arrned with
rifle, Afzal and Madni accused both anned
with rifles. Abbas accused armed with gun.
Nasrullah accused armed with pistol and
Kausar Abbas accused armed with pistol,
Crl. Appeal No.l 1 412009
Crl. Appeal No .12012009
and Shabbir accused armed with rifle came
there. Abbas accused raised a lalkara and
asked his co-accused to teach lesson to
Barkat Ali for qualrelling with his brother.
Ayub, Afzal and Ghulam Madni accused
fired at Barkat Ali with their
respective
rifles, which hit on his legs. Other accused
persons present in Court also fired at Barkat
Ali. I attempted to go near to Barkat Ali but
accused persons threatened me with dire
consequences. Nasrullah and Kausar Abbas
accused caught hold of me. All the accused
persons fled away with their respective
weapons, leaving me. alongwith Fida
Hussain and Muhammad Nawaz PWs
I
engaged a wagon for shifting the injured
Barkat Ali to Ali Pur but he succumbed to
the injuries in the way.
I
alongwith the
dead-body appeared before the police at P.S
Tranda Muhammad Panah. My statement
was reduced into writing Ex:PH, which was
read over to me and I thumb marked the
same in token of its coffectness. All the
accused persons committed murder of my
brother due to quarrel of children.
5.
After completion of investigatior, report under Section
173
of Cr.P.C was submitted and learned Trial Court"
after
observing legal formalities on 22.12.2005, framed the charge
against the appellant and other co-accused(since acquitted) to
which they pleaded not guilty and claimed trial.
6. In
order
Muhammad
Barkat
to
Arif
prove
its
case, prosecution examined
119/C(PW-1), Dr. Muhammad Wajid (PW-2),
Ali Patwari Halqa (PW-3),
Rustam
Ali A.S.I. (PW-4),
Gulzar Ahmad(Pw-s), Maithey Khan (PW-6), Laal Hussain
(PW-7), Ashiq
tp
Hussain
868/C-II(PW-8), Rajab Ali,
to-plainant(PW-9), Fida Hussain (PW- 10), Irfan Akbar Khan
Crl. Appeal No.l 1 412009
Crl. Appeal No .12012009
(PW-11), Jamshaid
Ali
Shah Inspector/SHo (PW-12) and
Munir Ahmad S.I (PW-13). In documentary evidence, learned
DDPP
for state tendered the report of
Forensic Science
Laboratory Punjab Lahore (Ex:PO), report
Examiner (Ex:PQ), report
of
Chemical
of Serologist (Ex:PR) and closed
prosecution evidence. Thereafter the appellant Muhammad
Ayub and respondents Muhammad Afzal, Ghulam Madni,
Nasrullah and Abbas were examined under Section 342 Cr.P.C
and the entire evidence produced by the prosecution has put to
them in shape of questions, which they termed as incorrect and
claimed their
innocence.
The appellant and aforesaid
respondents, however, did not appear in rebuttal as their own
witnesses, as required under Section 340(2) Cr.P.C. In reply to
a question that why the prosecution witnesses have
deposed
against him, Muhammad Ayub, appellant replied as under:-
"All the prosecution
witnesses are inimical
towards me and are inter-se related so thev
have deposed falsely against me.
While in reply to question that why this case against him,
Muhammad Ayub, Wpellant replied as under:-
"It is an unseen occurrence. It is established
on the record that neither the complainant
nor any eye-witness was present at the time
of occulrence. Concerned PWs had not seen
the occuffence with their own eyes. I have
been falsely involved in this case due to
previous enmity of murder cases between
the parties. During investigatioo, my coaccused namely Muhammad Afzal, Ghulam
Madni, Nasrullah and Kausar Abbas have
Crl. Appeal No.1 I 412009
Crl. Appeal No J2012009
already been declared innocent making the
whole prosecution story as very highly
investigation, it was
confirmed that infact the accused Ghulam
doubtful. During
Shabbir since P.O is the main accused, who
caused the murder of the deceased."
In reply to question that why the PWs deposed against them
and why this case against them, respondents
Abbas,
Muhammad AfzaI, Nasrullah and Ghulam Madni replied in the
same line as replied by Muhammad Ayub, appellant. After
conclusion
of tial,
learned
trial Court convicted
the
accused/appellant Muhammad Ayub as mentioned above and
acquitted the respondents.
7.
Learned counsel for appellant has argued that prosecution
has miserably failed to prove its case beyond any shadow
of
doubt as there are material contradictions in the statement of
eye-witnesses; that learned
trial Court has convicted the
appellant and acquitted the respondents Abbas, Muhammad
Afzal, Nasrullah and Ghulam Madni on the same strength of
evidence and learned trial Court has disbelieved to the extent
of
one set of accused person by holding that PW-9 and PW-10
eye-witnesses of the occuffence have changed their version and
the statements of PW-9 and PW-10 are contradictory with each
other and with the statement of Munir Ahmad S.I/I.O (PW-13).
In-spite of this fact, learned trial Court had awarded sentence of
life imprisonment, which is not sustainable under the
h
law.
Even the alleged recovery of weapon has no value as the
Crl. Appeal No .ll4l2009
Crl. App eal No .12012009
alleged empty found from the place
of
occurrence was sent
with the alleged recovered weapon simultaneously
with
considerable delay. Thus the case of prosecution is not free
of
doubt and benefit of doubt must be extended in favour of the
accused. Lastly he prayed that appellant be acquitted from the
charge.
8.
Conversely, learned D.P.G assisted by learned counsel for
complainant vehemently opposed the appeal by contending that
prosecution has proved its case with cogent evidence. Learned
counsel for complainant funher pleaded that acquitted of the
respondents Abbas, Muhammad Afzal, Nasrullah and Ghulam
Madni from the charge has caused great miscarriage of justice
as the prosecution has proved its case through cogent and
reliable evidence and learned trial Court has not correctly
appreciated the evidence and disbelieved the statement to the
extent
of
acquitted accused. Therefore, respondents were
unj ustifi ably been acquitted.
9.
The case of prosecution has mainly based on ocular
account which has been furnished by Rajab
Ali,
complainant
(PW-9) and eye-wifiress Fida Hussain (PW-10), recovery of
weapon i.e. rifle 44bore and medical evidence.
10. After survey of record, evidence and impugned judgment,
with the assistance of learned counsel for parties, we observed
t-Y-
that learned trial Court has not appreciated the evidence and
Crl. Appeal No .ll4l2009
Crl, Appeal No. 12012009
relevant law on the subject in its true perspective. The case of
prosecution
attributed
is not free of
doubts.
In the F.I.R, the role
to the appellanVconvict and his co-accused
Muhammad Afzal and Ghulam Madni was that they made the
firing which hit on the legs of the deceased Barkat Ali. Almost
the same role has been deposed by Rajab Ali, complainant
(PW-9) and Fida Hussain
(PW-
10), eye-witness
of
the
occuffence. PWs had not specified any specific injury to any
of the accused persons as described in the F.I.R. In para No.l8,
while analyzing the prosecution evidence, the learned trial
Court in its judgment observed as under:o'The complainant PW-9 has been found to
have been changing his version during every
step of his evidence. His statement is full of
contradictions and
made dishonest
improvements about the accused causing the
injuries. The statements of PW-9 and PW10 are contradicting each other and both
these witnesses have been contradicted by
he
the I.O Munir Ahmad PW-13. Only
favourable facts going in his favour were
by PW-9 as correct. The major
portion of the evidence of the complainant
PW-9 is therefore found not true. Only the
portion of his evidence has been found by
accepted
this Court as correct."
Similarly in para No.19 of its judgment, the learned trial Court
observed as under:-
"It
has been found that the complainant PWmade dishonest improvements
the
extent of the involvement of the accused
9
to
Muhammad Afzal, Nasrullah and Ghulam
Madni, who have been declared innocent in
the investigation. It is in the F.I.R that the
CrI. Appeal No.l 1 412009
Crl. Appeal No .12012009
bullets fired by the accused Muhammad
Ayub, Muhammad Afzal and Ghulam
Madni hit the deceased Barkat Ali on his
legs. One unknown
accused has also been
named in the F.I.R causing firing on the
victim. In this respect, the complainant PW9 Rajab Ali is proved to have been a false
witness. During the investigation, he firstly
named the unknown accused making firing
on the deceased as Yar Muhammad brother
of Muhammad Ayub accused. In the
witness box he denied this fact but when
confronted with his statement recorded by
the police Ex:D.C, it proved on record that
earlier he clearly named Yar Muhammad
accused also."
In the same para of this judgment, the learned trial Court
also
observed as under:-
"The complainant PW-9 Rajab Ali admiued
that he had submitted this application to the
I.O on 01.06.2005. He admitted in his
statement that in this application, he
mentioned that Shabbir Ahmad is also his
accused but in next line of his statement he
denied that the accused Shabbir had also
made firing on the deceased."
Surprisingly, learned
trial Court had not believed the
testimonies of both the aforesaid eye-witnesses and acquitted
the co-accused of
appellant/respondents
and on the
same
testimonies, which do not inspire confidence, convicted and
sentenced the appellant for
life imprisonment. Now it is settled
by this Court as well as apex Court of Pakistan that if evidence
of the same witness has been disbelieved to the extent of
set
one
of accused persons then same can only be believed against
the other set of accused persons, if same was corroborated by
I
tL
any independent piece of evidence i.e. lacking in the present
Crl. Appeal No.1 1 412009
Crl. Appeal No .120 12009
case. In this regard we have fortified our view by case law
titled 'oRashid Masih Vs. The Stat{(2015 Y
L R 1293) and
"Ghulam Sikandar and another v. Mamraz Khan and others"
(PLD 1985 SC ll), "Iftikhar Hussain and othq
State" Q004 S C M R 1185) and "Sa(fraz alias Sq{f and 2
others Vs. The State"(2000 S C M R 1758).
11. The medical evidence produced by prosecution, in view of
the fact that the ocular account has been disbelieved, is also
inconsequential to establish guilt of the appellant because
it
is
now settled law that medical evidence is corroborative piece of
evidence which makes the ocular evidence with regard to seat
of injury and its duration, nature of injury and kind of weapon
used for causing such injury, but
accused
it would not connect an
with the commission of crime. In this regard,
reference may be made
to the case reported
as
"Ghulam
Mustafa and others v. State" (PLJ 2010 SC 522).
12. The recovery
of
evidentiary value as
it is born out from the evidence that two
weapon i.e.
rifle 44 bore has no
empties collected from the spot sent to laboratory alongwith the
recovered weapon with considerable delay. It has been held by
august Supreme Court of Pakistan in case
titled "Ali Sher and
others versus The State" (2008 S C M R 707) that:-
"The crime-empties having been allegedly
found at the place of occurrence and having
been retained for so long the police station
Crl. Appeal No.l I 412009
Crl. Appeal No .12012009
10
and having been sent to the F.S.L alongwith
the crime weapons and that also 12 days
after the alleged weapons of offence had
been allegedly recovered destroys and
evidentiary value of the said piece of
evidence. These recoveries, therefore,
cannot offer any corroboration to the ocular
testimony."
13. In view of above discussed facts, the case of appellant is
not free of doubts and it is settled principle of law that benefit
of
doubt must accrue
in favour of
accused as the august
Supreme Court of Pakistan has held in case titled "Muhammad
Khan and another vs. state" (PLJ 2000
sc
1041) that 65it is
axiomatic and universal recognized principle of law that
conviction must be founded on unimpeachable evidence
and certainty of guilt and hence any doubt that arises in
prosecution case must be resolved in favour of accused."
L4. Moreover it is cordial principle of criminal jurisprudence
that a single instance caused a reasonable doubt in the mind of
Court entitles the accused to the benefit of doubt not as a matter
of grace but as a matter of right. Reliance is placed on case law
titled
R
as
"Muhemmad Alcram versus The Stqte" (200e s
CM
230) and case titled "Tariq Perttaiz Vs. ,Tl?e State," (1ees
SCMR 1345).
15. In the light of above
discussed facts, we are
of the view
that prosecution has failed to prove its case beyond any shadow
of doubt against appellant and his co-accused, therefore,
we
accept instant criminal appeal and set-aside conviction and
Crl. Appeal No.1 1 4l2AA9 I 1
Crl. Appeal No .12012009
sentence
of appellant Muhammad Ayub awarded by learned
trial Court vide
impugned judgment dated 27.03.2009 and
acquit him of the charge by extending him the benefit of doubt.
Appellant Muhammad Ayub
is on bail, so his surety is
discharged from the liability
of his bail bonds. While the
appeal against acquittal filed by Rajab
Ali,
complainant is
hereby dismissed.
ta,4
(SADAQATALI KHAN)
JUDGE
(KHALID MAHMOOD MALIK)
JUDGE
APPROVED FOR REPORTIIVG,
l&"
JUDGE
L'Jt"t
JUDGE