PLJ 2022 Cr.C. 337
[Lahore High Court, Multan Bench]
Present:
Ali Zia
Bajwa, J.
IMTIAZ
AHMAD and another--Appellants
versus
STATE and
another--Respondents
Crl. A.
No. 191 of 2016 and Crl. Rev. No. 138 of 2016
decided on 8.11.2021.
Pakistan Penal Code,
1898 (V of 1898)--
----Ss. 302(b),
324, 34--Conviction and sentence--Challenge to--Qatal-e-Amd--FIR was recorded
against unknown accused persons but complainant nominated present appellant
along with his two co -accused, by contending that he had nominated these
accused persons in his complainant--Being dissatisfied by result of
investigation and alleged omission on part of Investigating Officer of not
nominating appellant and his co-accused in FIR, complainant filed private
complaint against three accused persons including present appellant--Complainant
tried to make up for this deficiency through supplementary statement--In crime
report complainant mentioned features of unknown assailants in detail
therefore, supplementary statement got recorded by complainant, seems to be
result of deliberation and consultation--Supplementary statement of
complainant, it can easily be inferred that statements of PWs were recorded after
due deliberation and nomination of appellant--Complainant did not bring factum
of dishonest investigation in notice of police high ups rather remained numb
for months--Motive is always considered as double edge weapon--Motive is not
substantive piece of evidence rather same is merely a circumstance, which might
lead accused to commit occurrence--Injuries on person of a witness establish his
presence at spot but his statement cannot be taken as a gospel truth--Medical
evidence is just a confirmatory piece of evidence--Concept of innocent until
proven guilty and proof of guilt beyond reasonable doubt are interlinked--Proof
beyond a reasonable doubt, therefore, must be a proof of such a convincing
character that a reasonable person would not be reluctant to rely and act upon
it to convict an accused--Prosecution evidence was not up to mark to convict
and sentence appellant--It is better to acquit a guilty person than to punish
an innocent--Appeal accepted.
[Pp. 339, 340, 341, 342, 343,
344, 345, 346 & 347] A, B, C,
D,
E, F, G, H, I, J, K, L, M & N
Malik Amir Manzoor Awan, Advocate for Appellant.
Mr. Ansar Yasin, Deputy Prosecutor General for State.
Sahibzada Muhammad Nadeem Fareed, Advocate for
Complainant (for Petitioner in Crl. Revision No. 138/2016)
Date of hearing: 23.9.2021.
Judgment
This single judgment shall decide the fate of Criminal Appeal No.
191/2016 preferred by convict Imtiaz Ahmad (hereinafter "appellant") against his
conviction and sentence and Criminal Revision No. 138/2016, filed by the
complainant Ghulam Sarwar, for enhancement of sentence of convict/Respondent
No. 2.
2. Appellant, who was tried by learned Additional Sessions
Judge Rajanpur, in private complaint No. 104/2012 titled as “Ghulam Sarwar
vs. Imtiaz Ahmad” for offences under Section 302, 324 and 34 of Pakistan
Penal Code, 1860 (PPC), has assailed his conviction and sentence passed vide
judgment dated 30.01.2016, in following terms:
Ø
Under
Section 302(b) of Pakistan Penal Code, 1860 to undergo Rigorous
Imprisonment for life, for causing Qatl-i-Amd of Ghulam Nazik deceased.
Ø
To
make compensation of Rs. 1,00,000/-to the legal heirs of the deceased
Ghulam Nazik.
Ø
Benefit
of Section 382-B, Cr.P.C. was also extended in his favor.
3. Facts germane to decide the criminal appeal and criminal
revision are that complainant got recorded FIR No. 445/2011 dated 11.11.2011
for offences under Section 302, 324, 337-F(iv) and 34, PPC at P.S. Fazilpur,
Tehsil & District Rajanpur, regarding murder of his son Ghulam Nazik
(hereinafter "deceased")
and for causing injury to his son namely Shahid Hussain. Complainant, in his
private complaint, narrated that on 11.11.2011 at about 12:30 a.m., he along
with deceased, Shahid Hussain injured, Ghulam Rasool and Malik Farooq PWs, went
to patrol his cotton crop. Appellant armed with rifle, co-accused Aftab (tried
separately being juvenile) armed with pistol .12-bore and co-accused Shifa
Ullah alias Shafa (declared P.O. during the trial of appellant) armed
with rifle were present in the cotton crop. On seeing them deceased and Shahid
Hussain injured raised lalkara on which Shifa Ullah co-accused made a straight
fire shot at the right side of chest of deceased and appellant made a fire shot
at the back side of head of deceased. Third fire shot was made by Aftab
(Juvenile co-accused) on the calf of right leg of injured PW Shahid Hussain.
Ghulam Nazik succumbed to the injuries at the spot and complainant along with
injured Shahid Hussain went to police station Fazilpur but I.O. met him at
Huzoori drainage canal and complainant got recorded his statement to him.
Motive behind the occurrence was alleged to be a suspicion by accused party
that Mst. Khalida, real sister of Juvenile accused Aftab Ahmad, was
abducted by Ghulam Rasool P.W. and also that cousin of accused Aftab Ahmad’s
father namely Bashir Ahmad was murdered by Aman Ullah real uncle of deceased.
4.
FIR was recorded against unknown accused persons but complainant nominated the
present appellant along with his two
co-accused, by contending that he had nominated these accused persons in his
complainant handed over to the Investigating officer (CW.1) but he, being in
league with the accused persons, didn’t name the accused persons in the FIR.
During the investigation of the case, a weapon, different from the one alleged
by the complainant in crime report, was recovered from the appellant. Being
dissatisfied by the result of investigation and alleged omission on the part of
Investigating Officer of not nominating the appellant and his co-accused in the
FIR, complainant filed private complaint against three accused persons
including the present appellant. After recording the cursory statements of
complainant and other prosecution witnesses, private complaint was admitted for
regular hearing and appellant along with his co-accused was summoned to stand
trial. One of the co-accused namely Shifa Ullah absconded and he was declared
P.O. and initially, appellant and co-accused Aftab Ahmad were tried jointly but
after recording of some PWs, co-accused Aftab Ahmad was declared juvenile and
he was tried separately.
5.
To prove its case against the appellant, prosecution produced as many as 11
witnesses and one witness i.e. I.O. of FIR was examined as Court
Witness. Ghulam Sarwar (PW-6) is eye-witness and complainant of the private
complaint. Shahid Hussain injured (PW.7) and Ghulam Rasool (PW.8) are also
eye-witnesses of the occurrence. Dr. Syed Izhar Ahmad (PW-10) is medical expert
who examined the injured Shahid Hussain and also conducted the autopsy of
deceased. Remaining witnesses are, more or less, formal in nature. Statement of
Mushtaq Hamid SI/IO was recorded as CW-1.
6. After closing of prosecution
evidence and statement of CW, statement of appellant was recorded as envisaged
under Section 342, Cr.P.C. In his statement, he professed his innocence by
contending that all the PWs are kith & kin and they have deposed falsely
against him due to previous enmity. Appellant neither appeared as a witness as
envisaged under Section 340(2), Cr.P.C. nor produced any evidence, oral or documentary,
in his defense. At the conclusion of trial, appellant was convicted and
sentenced as mentioned above.
7. Arguments heard. Record perused.
8. Perusal of the record transpires
that the prosecution case mainly hinges upon ocular account, motive, medical
evidence and recovery.
9. Ocular account consists of Complainant PW.6, inujred Shahid
Hussain PW.7 and Ghulam Rasool PW.8. Perusal of the record reveals that
contents of complaint filed by the complainant and that of the FIR are at
variance. It is straightaway observed by this Court that no one was nominated
by the complainant in crime report despite the fact that appellant and other
accused persons were very well known to the complainant.
10.
Although, complainant tried to make up for this deficiency through
supplementary statement and contended that he got recorded names of accused in
crime report too but investigating officer, with mala fide intention and
being in league with the accused persons, did not mention their names therein.
This contention does not attract to a prudent mind, as if investigating officer
was that much aligned with the appellant side then why would he record the
supplementary statement of complainant, having names of accused persons, on the
same day and also record statements of the other prosecution witnesses in line
with that supplementary statement. In the crime report complainant mentioned
the features of unknown assailants in detail therefore, supplementary statement
got recorded by the complainant, seems to be result of deliberation and
consultation, especially when it is an admitted fact that all the accused
persons nominated through supplementary statement were previously very well
known to complainant and other prosecution witnesses. This fact alone creates a
serious dent in the prosecution story and nomination of accused subsequently
through supplementary statement seems result of after-thought and concoction.
Where crime report is registered against the unknown accused person and
subsequently, those accused are nominated through supplementary statement, who
are already well-known to complainant and prosecution witnesses, it can be
considered a dishonest improvement and consequently not worthy of any credence.
Respectful reliance can be placed on the pronouncement of prestigious apex
Court of the Country in Akhtar Alis Case,[1]
wherein, after referring a chain of judgment,[2]
it was authoritatively held
that:
“It is, therefore,
established that the name of the appellants along with their acquitted
co-convict did not appear in the F.I.R., therefore, it is an improvement made
by the complainant in the supplementary statement, therefore, the statement of
the complainant involving the appellants in the case is obviously false and no
reliance can be placed therein in view of all attending circumstances available
on the record and learned High Court was, therefore, not justified to uphold
the sentence of the appellants.
Same view can be further strengthened
by the Kashif Ali's case,[3]
wherein apex Court after considering number of judgments[4]
held that:
“15. … that
supplementary statement recorded subsequently to the F.I.R can be viewed as
improvements made to the witness's statement …”
11.
As far as nomination of accused persons in statements of witnesses under Section
161, Cr.P.C. is concerned, perusal of record reveals that although PWs have
nominated the accused persons in their statements under Section 161, Cr.P.C.
but statement of PW.7 Shahid Hussain, as per his own version, was recorded on
17.11.2011, while as per the version of I.O./CW.1, statements of all the PWs
were recorded on the same date i.e. 11.11.2011. This aspect smashes the
credibility of statements of PWs and from recording of these statements after
the supplementary statement of complainant, it can easily be inferred that
statements of PWs were recorded after due deliberation and nomination of
appellant and other co-accused was result of forethought. Respectful reliance
is placed upon the decision of august Supreme Court of Pakistan in Muhammad
Rafique and others case.[5]
Relevant extract is reproduced hereunder:
“26. … Their
statements are in line with the supplementary statement of the complainant. The
record shows that their statements under Section 161, Cr.P.C. were recorded
after the recording of supplementary statement of the complainant, therefore,
the possibility of consultation and deliberation before recording statements
cannot be ruled out …”
12. It is also pertinent to mention
that grievance of complainant qua non-mentioning the names of accused had
arisen on 11.11.2011 but he fell into a deep slumber and opted to file private
complaint to get his alleged grievance redressed on 14.03.2012 i.e.
after more than four months of alleged mala fide act of I.O. and that
too, only after I.O. has opined that the appellant did not commit the said
occurrence in the manner as narrated by the complainant in the crime report. It
is also perceptible that complainant did not bring factum of dishonest
investigation in the notice of police high ups rather remained numb for months.
Neither it is mentioned in the complaint nor was it brought on the record
through any evidence that complainant made slightest of efforts for redressal
of his grievance against such grave alleged illegality and dishonesty of
police, which seems unnatural and unusual in a case of murder. Registration of
crime report against the unknown accused persons and subsequently nominating
the appellant and other co-accused through supplementary statement and in
private complaint, who are previously well known to the complainant and
prosecution witnesses, jolted the entire edifice of prosecution case.
13.
Complainant alleged, in his complaint and while deposing before the Court,
previous enmity inter se the parties to be the motive resulted in the
occurrence in question. Appellant and co-accused had no direct grudge against
the complainant, injured or deceased. Astonishingly appellant and other
co-accused did not target Ghulam Rasool PW.8 against whom actual rancor existed
despite of the fact that he was present at the place of occurrence empty
handed. Even otherwise, motive is always considered as double edge weapon, at
one hand if it gives a reason or motivation to the accused to commit the crime,
on the other hand, it equally provides impetus to the complainant to falsely
implicate the accused in the case. Guidance is sought from the decision of
august Supreme Court of Pakistan in Muhammad Ashraf alias Acchu's case.[6]
Motive alone, as a corroborative circumstance to support the ocular evidence
cannot be relied upon to convict an accused when the ocular testimony is
neither credible nor worthy of reliance. It is an established proposition of
law that motive is not substantive piece of evidence rather same is merely a
circumstance, which might lead the accused to commit
the occurrence. Reliance in this regard can be placed on Akbar Ali"s Case.[7]
“It is also a
settled law that the existence of motive/enmity is neither a substantive nor a direct
evidence. It is not corroborative piece of evidence either. The motive/enmity
is only a circumstance which may lead to the commission of an offence. It is a
starting point for committing a crime but under no circumstances it can be
taken as an evidence. Further, motive/ enmity is a double-edged weapon. Offence
may be perpetrated because of the existence of the motive/enmity and it can
also be a basis of a false charge.”
14.
Although it is vehemently argued by the learned counsel for the complainant
that one of the prosecution witnesses i.e. Shahid Hussain PW.7, received
injuries during the alleged occurrence, which proved his presence at the spot
but it is trite law that although, injuries on the person of a witness
establish his presence at the spot but his statement cannot be taken as a
gospel truth. Reference, if required, can be made to the decision of Amin
Ali and another's case,[8]
wherein it was categorically held by august Supreme Court of Pakistan that:
“12. Certainly, the
presence of the injured witnesses cannot be doubted at the place of incident,
but the question is as to whether they are truthful witnesses or otherwise,
because merely the injuries on the persons of P.Ws. would not stamp them truthful
witnesses”
When there is
contradiction between the statements of injured witness and I.O. of this case,
regarding date of recording of his statement, it can safely be inferred that
this witness got recorded his statement under Section 161, Cr.P.C. after due
deliberation and nomination of the appellant and other co-accused seems a
postscript.
15.
As far as medical evidence is concerned, although perusal of Exh.PH i.e.
Postmortem Examination Report transpires that injury attributed to the
appellant is present on the person of deceased but it is settled law that
medical evidence is just a confirmatory piece of evidence and it can only
declare seat and nature of injury, kind of weapon used for causing such injury,
probable duration between injury and death but it cannot identify the assailant
who caused such injury. Reference can be made to the decision of august Supreme
Court of Pakistan in Sajjan Solangi case,[9]
wherein said principle was elaborated as follows:
“4. The medical
evidence at the most could be a supporting evidence to the ocular account and
by itself cannot identify the assailant but as already discussed in this case
there is no ocular account, hence medical evidence is also not helpful to the
prosecution.”
16. Although .12-bore pistol was recovered on the disclosure
and pointing out of appellant on 21.12.2011 from his house but there is no
report of forensic analysis containing opinion of ballistic expert to the
effect that cartridge of .12 bore, taken into possession from the place of
occurrence, was fired from the pistol allegedly recovered on the pointing out
of the appellant. Alleged recovery of .12 bore pistol is also of no avail to
prosecution case as recovered weapon is different from the weapon, which was
shown to be carried by the appellant in the crime report at the time of occurrence.
17.
It is settled principle of criminal jurisprudence that in order to make out a
case of an accused for conviction, prosecution should prove its case beyond
reasonable doubt. Accused remains innocent until proven guilty by the
prosecution “beyond reasonable doubt”. The law does not require
an accused person to prove his innocence or produce any evidence at all to
negate the prosecution version. Presumption of innocence attached with an
accused alone is sufficient to acquit him, unless the Court is satisfied beyond
a reasonable doubt qua the guilt of the accused, after a watchful and impartial
consideration of all the evidence available on the record. In Muhammad
Asghar alias Nannah and another case,[10]
apex Court of the Country held that the concept of innocent until proven guilty
and proof of guilt beyond reasonable doubt are interlinked and it is the prime
duty of prosecution to prove its case against the accused persons and the onus
never shifts except the cases falling under Article 121 of Qanun-e-Shahadat
Order, 1984.
18.
Proof beyond reasonable doubt means that prosecution should produce such
evidence that no prudent mind would doubt about the guilt of the accused. A
reasonable doubt may be described as a doubt that would make a prudent mind
hesitant to act. Proof beyond a reasonable doubt, therefore, must be a proof of
such a convincing character that a reasonable person would not be reluctant to
rely and act upon it to convict an accused. However, it is to be understood
that proof beyond a reasonable doubt does not mean proof beyond all possible
doubts. Connotation of term “reasonable doubt” was elucidated in Muhammad
Asghar's Case[11]
as infra:
6. The meaning of reasonable doubt can be
arrived at by emphasizing the word "reasonable". It is not a surmise,
a guess or mere conjecture (State v. Griffin, 253 Conn. 195, 206 (2000). It is
not a doubt raised by anyone simply for the sake of raising a doubt. It is such
a doubt as, in serious affairs that concern any one and that such a doubt would
cause reasonable men and women to hesitate to act upon it in matters of
importance (State v. Morant, 242 Conn. 666, 688 (1997). It is not
hesitation springing from any feelings of pity or sympathy for the accused or
any other person who might be affected by the decision. It is, in other words,
a real doubt, an honest doubt, a doubt that has its foundation in the evidence
or lack of evidence (State v. Velasco, 253 Conn. 210, 249 (2000). It is
doubt that is honestly entertained and is reasonable in light of the evidence
after a fair comparison and careful examination of the entire evidence (State
v. Torres, 82 Conn. App. 823, 836-37 (2004).
However, no person
may be convicted for an offence unless the offence alleged to have been
committed and the fact of committing such an offence by that very accused is
established as independent fact beyond a reasonable doubt. Mere heinousness of
crime should not sway the Court to deviate from the settled principles of
criminal justice system.[12]
19. When factum of nomination of
appellant through supplementary statement is considered side by side with
admitted previous enmity inter-se the parties, it leads to an irrefutable
inference that possibility of false implication cannot be ruled out. In this
case, as discussed above, nomination of accused persons seems to be an
afterthought, due to previous enmity between the parties. As per above
discussion, this Court is compelled to hold that prosecution theory of case as
structured in the private complaint, when juxtaposed with crime report, is
unbelievable and creates serious doubts qua the culpability and involvement of
appellant in this case.
20.
Gamut of above said discussion and re-appraisal of prosecution evidence leads
the Court to the inexorable conclusion that prosecution evidence was not up to
the mark to convict and sentence the appellant. Story of prosecution, as
discussed above, is full of doubts regarding involvement of appellant in the
occurrence in question. To extend benefit of doubt to an accused person, it is
not necessary that there should be several circumstances creating doubt qua the
story of prosecution, rather one reasonable doubt is sufficient to acquit an
accused, not as a matter of grace but as a matter of right. This principle was
expounded by august Supreme Court of Pakistan in Najaf Ali Shah case[13]
after considering various Judgments,[14]
as infra:
“It is a well settled principle of law
that for the accused to be afforded this right of the benefit of the doubt it
is not necessary that there should be many circumstances creating uncertainty
and if there is only one doubt, the benefit of the same must got to the
petitioner”
Same view has been
rendered by apex Court of the country in Ahmed Omar Sheikh and others case[15]
by holding that:
“32 … it is settled since centuries that
benefit of doubt automatically goes in favour of an accused. Even if a single
circumstance create reasonable doubt in a prudent mind regarding guilt of an
accused then the Accused shall be entitled to such benefit not as a matter of
grace and concession but as a matter of right and such benefit must be extended
to the accused person(s) by the Courts without any reservation …”
21.
It is also an axiomatic principle of law that it is better to acquit a guilty
person than to punish an innocent. Reliance can be placed upon the decision of
august Supreme Court of Pakistan in Ayub Masih case,[16]
wherein this principle was authoritatively elaborated in following words:
“10. … The rule of benefit of doubt, which
is described as the golden rule, is essentially a 'rule of prudence which
cannot be ignored while dispensing justice in accordance with law. It is based
on the maxim, “it is better that ten guilty persons be acquitted rather than
one innocent person be convicted”. In simple words it means that utmost
care should be taken by the Court in convicting an accused. It was held in The
State v. Mushtaq Ahmed (PLD 1973 SC 418) that this rule is antithesis of
haphazard approach or reaching a fitful decision in a case. It will not be
out of place to mention here that this rule occupies a pivotal place in the
Islamic law and is enforced rigorously in view of the saying of the Holy
Prophet (P.B.U.H) that the "mistake of Qazi (Judge) in releasing a
criminal is better than his mistake in punishing an innocent.” (emphasis
applied)
22. With these observations, I am
of the considered view that prosecution has failed to prove its case against
the appellant beyond reasonable doubt and appellant has made out a good case of
acquittal, hence Criminal Appeal No. 191 of 2016 preferred by the
appellant is accepted and he is acquitted of the charge by
extending him benefit of doubt.