PLJ 2020 Cr.C. (Lahore) 897
Present: Muhammad Qasim
Khan, J.
MUHAMMAD ANWAR @ DHOLI and another--Appellants
versus
STATE and others--Respondents
Crl. A. No. 168 of 2009
& Crl. Rev. No. 227 of 2009,
heard on 5.3.2019.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(c) & 34--Criminal Procedure Code, (V of 1898),
S. 342--Sentence--Challenge to--Benefit of doubt--Joint role ocular
account--Appreciation of evidence--Legal position is well settled that it is
always for prosecution to establish its case against accused beyond any shadow
of doubt and, once it is established that prosecution failed in its obligation
then conviction cannot be recorded against an accused merely on basis of his
statement recorded under Section 342, Cr.P.C.--Statement of convict/appellant
recorded under Section 342, Cr.P.C. alone cannot be made basis to sustain
conviction--Prosecution has failed to prove its case beyond any shadow of doubt
against both accused through unimpeachable, trustworthy and independent
reliable evidence rather evidence produced by prosecution replete with doubts
and it is settled law that benefit of doubt how slightest will go in favour of
accused not as a matter of grace but as matter of right. [P. 904] D, E &
F
Criminal Procedure Code, 1898 (V of 1898)--
----S. 342--Pakistan Penal Code, (XLV of 1860), S. 302(c)--Sentence--Challenge
to--Statement of accused--Joint role was attributed--Benefit of doubt--It is
settled principle of law that statement of accused should be accepted or
rejected as a whole and it could not be accepted piecemeal--When he has denied
murder of deceased by causing injury to him, it could not be said that he
admitted
murder--It is settled position of law that prosecution has to prove case and if
prosecution fails then accused cannot be convicted merely on basis of statement
of accused u/S. 342, Cr.P.C--However, to extent of accused (MJ) trial Court
without taking into consideration stance taken m his statement u/S. 342,
Cr.P.C. has convicted and sentenced him along with co-accused but from perusal
of prosecution evidence it appears that prosecution cannot prove its case
beyond any shadow of doubt against both convicts/appellants and when
prosecution fails to prove its case, then mere on basis of defence version,
accused cannot be convicted and sentenced. [Pp.
903 & 904] A, B & C
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(c)--Sentence--Challenge to--Enhancement of sentence--Validity--As prosecution has failed to prove its case against both appellants through reliable confidence inspiring evidence, question for enhancement of their sentence does not arise--Resultantly, revision having no substance stands dismissed. [P. 904] G
Mr. Qaisar Mehmood Sra, Advocate for Appellants.
Ch. Sarfraz Ahmad Khatana, Deputy Prosecutor General for State.
Nemo for Complainant.
Date of hearing: 5.3.2019.
Judgment
For committing murder of Muhammad Rafiq brother of complainant
Muhammad Siddique @ Farooq (PW-1) Muhammad Anwar @ Dholi and Javed Ahmad/appellants,
along with Muhammad Boota and Mst. Rehman Bibi (since acquitted) faced
trial in case FIR No. 214 of 2007, registered at Police Station Kangan-pur,
Kasur, for offences under Sections 302 & 34, PPC, before learned Additional
Sessions Judge, Chunian, Kasur, who vide judgment dated 10-02-2009,
while acquitting Muhammad Boota and Mst. Rehman Bibi by extending benefit
of doubt in their favour, convicted Muhammad Anwar @ Dholi and Javed
Ahmad/appellants under Section 302(c), PPC and sentenced them imprisonment for
14 years with fine of
Rs. 50,000/-each, in default whereof both the convicts/appellants were to undergo
six months SI and benefit of Section 382-B, Cr.P.C. Criminal Appeal has been
filed by the appellant to challenge their conviction and sentence, whereas,
Muhammad Siddique, complainant has preferred Crl. Revision No. 227 of 2009
seeking enhancement of sentence imposed upon Muhammad Anwar @ Dholi and Javed
Ahmad/Respondents No. 1 & 2. Both these matters will be decided through
this single judgment.
2. There is no need to repeat the detailed facts of the case as well as summary of the prosecution evidence, as it has already been given by learned trial Court in the impugned judgment. However, relevant portions of the statements made by both the appellants under Section 342, Cr.P.C. are being reproduced hereunder.
3. Muhammad Anwar @ Dholi/Appellant No. 1 in answer to question “Do you want to say anything else?” replied as under:
“I am innocent I
have been involved in this case by the complainant with malafide intention on
the basis of false and concocted story narrated by the prosecution. The real
facts behind the occurrence are that in the year 2006 my daughter Mst. Sajida
Bibi was abducted by the accused mentioned above, in that regard I got
registered above said case. Mst. Sajida Bibi was restored back me with the
intervention of Sardar Hassan Akhtar Mokal and the matter was got patched up
and thereafter I got married my daughter Sajida Bibi with one Arshad, who is a
resident of village Jaurra, Tehsil & District Kasur. Two days prior to this
occurrence my daughter Sajida Bibi alongwith her husband came in my house at
Mokal for seeing us, on the day of occurrence I took my daughter alongwith her
husband to Basti Qutab Shah Railway Station on a Rickshaw and I returned back,
they were sitting for waiting of train. Meanwhile, One Bashar s/o Ranjha caste
Sheikh r/o Kull, came at the railway station, who on a
phone call informed to Muhammad Salim s/o Bagga, real paternal nephew of
complainant and deceased that Sajida Bibi is present at railway station. Upon
this information Muhammad Salim also came there and made immoral joke to my
daughter. Meanwhile my brother co-accused Muhammad Javaid also reached at the
said railway station, who wanted to go to Kasur for purchasing bleeching, when
Muhammad Javaid saw that Muhammad Salim is joking and teasing to his niece, on this
quarrel took place between Muhammad Javaid and Salim there, passenger of
railway station restrained them from quarrelling Later on train came and my
daughter alongwith her husband and Javaid went to Kasur. Later on when I came
to know about the occurrence of railway station through people, then I went to
the Dera of Sardar Imtiaz Ahmad Nikai and complained him against the said
Salim, who promised that he will advise them and in future Salim will never
again joke and chase my daughter. On 11-6-07 at about 8/9
P.M. I alongwith my father Qasim were sitting in our house, when deceased
Muhammad Rafique alias Bola, Muhammad Salim, Mst. Hamidan Bibi wife of
complainant and Mst. Baidan Bibi mother of Muhammad Salim while they were armed
with “Dandas” and “Sotas” forcibly tres-passed into my house and started
quarrel for taking the revenge of quarrel which was took place at railway
station with us, Muhammad Rafique deceased grappled with me while Muhammad
Salim started beating to my father, during grapping deceased fell down on a
bicycle standing there due to push and received some head injuries due to
fallen on bicycle and ground, when Muhammad Salim saw that Muhammad Rafique has
fallen on ground, then he left my father and attacked on me. Meanwhile,
Muhammad Rafique Bola attacked on my father and got fall down him on the ground
and started beating. During grapphng of deceased and me, Sota of deceased fell
down on the ground and when I saw that Muhammad Rafique is beating to my
father, who is an old man and his life is in danger in the. bands of deceased,
then I became provoked and only , for saving the life of my father in the hand
of deceased I pick up Sota of deceased from ground and gave a blow on his back,
upon the hue and cries, respectables of the locality came there and saved us
from hands of said assailants and made request to them to go back home. In this
way all assailants went back and after this quarrel I again went in the Dera of
Sardar Imtiaz Ahmad Nikai and complained regarding the said matter. After that
Muhammad Rafique died due to heart attack and the complainant by throwing a
wide net involved me alongwith my brother Muhammad Javaid, my mother Rehman
Bibi and my brother-in-law Muhammad Boota. In fact, three co-accused of case
were not present at the spot.”
4. Muhammad Javed/Appellant No. 2 in reply to question “Why this case against you and why the PWs have deposed against you? replied as under:
“The PWs are
inter-se related as well as staunch friends each other. They deposed falsely
and maliciously against me and my co-accused on the asking of complainant only
for involving us in the case. Real facts behind this false case are that in the
year 2006 the paternal nephew of deceased namely Muhammad Salim alongwith his
other companion abducted my paternal niece Sajida Bibi. In this regard a
abduction case was registered on behalf of ‘my brother co-accused Muhammad
Anwar against the said Muhammad Salim etc. later on Sajida Bibi was returned to
us due to the intervention of Sardar Hassan Akhtar Mokal, and and later on
Sajid Bibi was married with one Arshad r/o Jaurey Wala District Kasur, Two days
period to this occurrence, Sajida Bibi alongwith her husband came in the house
of her father to see him at Mokal. On the day of occurrence Sajida Bibi
alongwith her husband was sitting at Railway Station Basti Qutab Shah for
waiting train. I was also reached there because I was going to Kasur for
purchasing Bleeching. When I reached there I saw that Muhammad Salim is joking
and teasing to Sajida Bibi at the railway station. Upon this a quarrel took place
between me and Muhammad Salim. Passenger of railway station
interfere and restrained us from further quarrel. Later on train came, I Sajida Bibi and her husband went to Kasur, on a
train. After purchasing bleech I went to Hussain Khan Wala Tehsil &
District Kasur and remained whole night there in the house of my in-laws as my
wife and kids were already there. I was not present at the spot. I did not take
part in the occurrence. I am innocent. I have been involved in this case only
due to the reason that I am brother of co-accused Muhammad Anwar.”
5. Although prosecution tried to establish that FIR was registered without any delay, as occurrence was taken place on 11.06.2007 at 8:00 pm and FIR Ex.PA/1 was lodged on the same night at 9:30 pm, but post-mortem was conducted on 12.6.2007 at 11:00 am. At THQ Hospital, Chunian and Dr. Muhammad Arif Mahmood/PW-4 in his statement has categorically stated that the police papers were received by me about half an hour before conducting post-mortem examination. These facts create serious suspension qua registration of case without delay and possibility cannot be ruled out that police had stopped Roznamcha and FIR was registered after consultations and concoctions because in the THQ Hospital Doctors are available 24 hours and even from the morning i.e. from 8:00 AM Hospital runs with full force; hence, why post-mortem examination was not conducted at night or early in the morning at 8:00 or 9:00 AM. It appears that Doctor was waiting for the police papers and if FIR was registered promptly then for what reason the police papers were not submitted before the Doctor for about 13 hours after registration of the FIR. This aspect creates serious doubt qua promptly registration of FIR.
6. Another important aspect in this case is that as per statement of Irshad Hussain, SI/PW-7, he reached Police Station , and after drafting formal complaint, he wrote application for post-mortem examination and sent the dead body for autopsy through Muhammad Akram, HC to THQ Hospital Chunian. Thereafter he went to the place of occurrence. It means that dead boy and documents were sent to THQ Hospital at night but doctor states that he received police paper at about ½ hours before post-mortem examination. Another important aspect in this case is that inquest report is not available on the record, which was not exhibited during statement of the Investigating Officer or any other PW. This important document, which was prepared by the Investigating Officer immediately when he recorded complaint and inspected the dead body and surroundings. This fact also establish that certain facts have been improved/concealed and for some unknown reasons inquest report has not been placed on record.
7. As per FIR, two injuries of sota blows on the back of the deceased Muhammad Rafiq have been assigned to each of the appellants i.e. one to Muhammad Anwar @ Dholi/appellant No. 1 and second to Muhammad Javed/Appellant No. 2, while joint role of causing kicks and fists blows has been to all the accused but Dr. Muhammad Arif Mahmood/PW-4 in post-mortem examination report Ex.PB has observed one injury on front of forehead, one injury on back of head, one injury on left eyebrow and injuries No. 4 & 5, which are attributed to the appellants, are on the back, left and right side of the chest. All the injuries were contusions and abrasions but the tissues were not damaged. Although in his opinion Doctor stated that injuries No. 1, 2 & 4 are sufficient to cause death in ordinary course of nature but after examining injuries, it appears that either Injury No. 4 has been written due to error by Doctor or due to mala fide, so as to burden the convicts/appellants with the cause of death. From examining the post-mortem report Ex.PB in column of remarks of medical officer, it is written as:
“In my opinion the
deceased has died of shock and hemorrhage of brain due to injuries. Injury No.
1, 2, 4 are sufficient to cause death in ordinary
course of nature.”
But, injury Wo.4 appears to have been written by overwriting as even after examining the complete post-mortem report, Injury No. 3 appears to be relevant, because Injury No. 3 is contusion 3 x 2 cm on the left eyebrow. There was sub-conjunctival haemorrhage of the left eye ball. The fact that Injuries No. 1, 2 & 3 were sufficient to cause death, is sufficiently established on the basis of dissection notes wherein doctor has observed that there was haemorrhage present in the brain. About 200 cc blood was present on the brain cavity, all other organs were healthy. This witness i.e. Doctor during his cross-examination has admitted that there was no fracture under injuries No. 4 & 5 and these injuries are contusions and even muscle was not ruptured, hence, Injury No. 4 could be said to be the cause of death along with other head injuries.
8. The ocular account is based on the statement of Muhammad Siddique @ Farooq/PW-1 and Ali Muhammad/PW-2. PW-1 in his complaint Ex.PA and Muhammad Ali PW-2 in his statement under Section 161, Cr.P.C. stated that two injuries caused by convicts/appellants on the back of the chest of the deceased but both injuries were of simple nature but before the Court they improved their statement to the extent of both these appellants by stating that they inflicted sota blows on the victim on different parts of body. They did not state their earlier stance that all the accused caused kicks and fists blows to the deceased when he fell oh the ground and this part of their statement is duly confronted during cross examination and they have dishonestly improved this-portion of their statement in order to strengthen the prosecution story against the convicts/appellants.
9. Another important fact in this case is that the eye-witnesses mentioned the weapons of offence with which each accused was equipped and also attributed specific injuries to the accused persons. In this condition when they witnessed each and every injury being caused, then why they did not explain the injuries on the head and face of the deceased and why they kept mum in this respect in the FIR as well as in their statements recorded under Section 161, Cr.P.C. This fact creates doubt that either the witnesses were not present at the place of occurrence or there was dark night and they could not see the occurrence and identify the accused. It is pertinent to mention here that in FIR Ex.PA, neither any source of light has been mentioned nor any source of light i.e. blub was taken into possession by the Investigating Officer.
10. As per prosecution story, accused were not equipped with lethal weapons and the allegation is that they caused sota blows to the deceased; thus, in this background the conduct of the witnesses appears to be unnatural. Being real brothers, they did not try to intervene and protect their beloved brother from the clutches of the accused. This unnatural conduct of the witnesses makes their presence at the place of occurrence suspicious. Though PWs 1 & 2 have stated that Mst. Rehman and Muhammad Boota caught hold (جپھہ) of them but this fact was not recorded in their statements recorded under Section 161, Cr.P.C. or in the FIR Ex.PA/1 and they were duly confronted on this point. This is also dishonest improvement on the part of these witnesses, as by saying so they want to establish that for the same reason they could not rescue their deceased brother. This stance of Jappha (جپھہ) does not appeal to the prudent mind.
11.
From the perusal of record, it appears that trial Court convicted Muhammad
Anwar @ Dholi Appellant No. 1 by taking into consideration his statement under
Section 342, Cr.P.C. Although he admit the quarrel and causing of one injury on
the back of deceased and further states that later-on he died due to heart
attack. It is settled principle of law that statement of accused should be
accepted or rejected as a whole and it could not be accepted piecemeal. When he
has denied the murder of the deceased by causing injury to him, it could not be
said that he admitted the murder. Even if otherwise it is settled position of
law that prosecution has to prove it case and if the prosecution fails then the
accused cannot be convicted merely on the basis of statement of accused under
Section 342, Cr.P.C. However, to the extent of Muhammad Javed/Appellant No. 2,
learned trial Court without taking into consideration the stance taken in his
statement under Section 342, Cr.P.C. has convicted and sentenced him along with
Muhammad Anwar @ Dholi/Appellant No. 1 but from the perusal of prosecution
evidence it appears that prosecution cannot prove its case beyond any shadow of
doubt against both the convicts/appellants and when prosecution fails to prove
its case, then mere on the basis of defence version, accused cannot be
convicted and sentenced.
12. This Court is aware of the fact that in his statement under Section 342, Cr.P.C. the convict/appellant had not denied the occurrence, rather explained the same in his own manner as to how the occurrence took place, but he has not admitted that they caused head and face injuries, which in the facts and circumstance of the case have been found the cause of death, had been caused by him. The legal position is well settled that it is always for the prosecution to establish its case against the accused beyond any shadow of doubt and once it is established that prosecution failed in its obligation then conviction cannot be recorded against an accused merely on the basis of his statement recorded under Section 342, Cr.P.C. Reliance in this respect is placed on the case “Azhar Iqbal versus The State” (2013 SCMR 383). Here in the instant case, as detailed above the prosecution has miserably failed to establish its case, therefore, statement of the convict/appellant recorded under Section 342, Cr.P.C. alone cannot be made basis to sustain conviction.
13. The crux of the above discussion is that the prosecution has failed to prove its case beyond any shadow of doubt against both the appellants through unimpeachable, trustworthy and independent reliable evidence rather the evidence produced by the prosecution replete with doubts and it is settled law that benefit of doubt how slightest will go in favour of the accused not as a matter of grace but as matter of right. Consequently, this appeal is allowed and both the appellants Muhammad Anwar @ Dholi and Muhammad Javed are acquitted of the charge. Appellants are on bail; they are present before the Court today, their sureties are hereby discharged from liabilities.
14. As prosecution has failed to prove its case against both
the appellants through reliable confidence inspiring evidence, question for
enhancement of their sentence does not arise. Resultantly, Crl. Revision No.
227 of 2009, having no substance stands dismissed.
(S.A.B.) Revision dismissed