PLJ 2022 Cr.C. (Note) 184
[Lahore High Court, Multan Bench]
Present:
Sohail Nasir, J.
MUHAMMAD
YOUNAS--Petitioner
versus
STATE
and another--Respondents
Crl.
Rev. No. 285 of 2021, decided on 30.11.2021.
Testimony of witness--
----An injured witness and his presence cannot be disputed at
crime scene but these are recognized principles of law that this fact by itself
will not show that an injured witness has told truth in Court about occurrence;
injuries on his person are not per se tantamount to a stamp of credence on his
testimony; his statement is to be tested and appraised on principles applied
for appreciation of any other prosecution witness. [Para 19] A
1981 SCMR 795, 1996 SCMR
1411 & 1995 SCMR 127.
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 439
& 435--Pakistan Penal Code, (XLV of 1860), Ss. 324, 337-F(iii)--Criminal
revisions--Allegations of attempting to commit qatl-e-amd--Conviction and
sentence--Testimony of witnesses--Gun was recovered--It is case of prosecution
that gun recovered at instance of petitioner was barrel--None of witnesses
stated that petitioner had reloaded gun after each fire--If this fact is
ignored, even then question arises that if multiple fires were made by
petitioner, why only one empty was found at crime scene and not others
Prosecution stands still here--Reasonable doubt standard is a fundamental part
of jurisprudence means that prosecution must present propositions which once
arisen, cannot be refused and denied; this which preclude "reasonable
doubt" in mind of a reasonable person as to guilt of accused and that
beneficiary of this failure by prosecution under all circumstances shall be one
who is called favorite child of law--Revision was allowed.
[Para
23 & 24] B & C
Syed Jaffar Tayyar Bukhari Advocate for Petitioner.
Mr. Abdul Salam Alvi Advocate for Complainant.
Mr. Muhammad Laeeq-ur-Rahman Assistant Deputy Public
Prosecutor for State.
Date of hearing: 30.11.2021.
Judgment
Muhammad Younas (petitioner) had faced trial in First
Information Report (FIR) No. 161 (PA/1) recorded on 09.07.2017 under Section
324, PPC at Police Station Sheikh Fazil District Vehari on the complaint of
Muhammad Siddique (Pw-1) for the allegations of attempting to commit the
Qatal-e-Amd[1]
of Abid Majeed (Pw-2). On conclusion of trial vide judgment dated
29.05.2021 passed by the learned Judicial Magistrate with powers Section 30,
Tehsil Burewala district Vehari he was convicted and sentenced as under:
i. Under Section
324, PPC to undergo five years rigorous imprisonment and Fine of Rs. 200000/- (two
lacs). In default of payment of fine he was ordered to further undergo six
months simple Imprisonment.
ii. Under Section
337-F(iii), PPC to pay Rs. 20000/-(twenty thousand) as Daman for each injury
(total Rs. 100000/-) to Abid Majeed.
2. Benefit of Section 382-B[2]
of Code of Criminal Procedure, (V of 1898) {Cr.P.C} was also extended to
petitioner, who then, filed an appeal whereas complainant instituted a criminal
revision and both were dismissed vide a consolidated judgment dated
27.09.2021 passed by the learned Additional Sessions Judge Burewala.
3. Still feeling no satisfaction, petitioner has approached
this Court through the instant criminal revision.
4. Facts of the case are that Kazim Hussain Assistant Sub
Inspector (ASI) was present on duty at EB/100 where Muhammad Siddique (Pw-1)
submitted an application (PA). He maintained that on 08.07.2017 at about 10:30
pm he along with his nephew Abid Majeed (Pw-2) was present in their
fields and irrigating the land where all of a sudden Muhammad Younas
(petitioner) having the possession of 12-bore gun emerged; .he made four fires
one after the other which hit on the right shoulder, right arm, again right arm
and right side of abdomen of Abid Majeed; petitioner had been making straight
firing which hit on the different parts of the body of Abid Majeed; on arrival
of Ghulam Muhammad (Pw-3) and Muhammad Din (not produced) petitioner was
succeeded to escape; motive was that few days earlier there was a conflict
between petitioner and Abid Majeed over the dispute of irrigation of land and
at that occasion petitioner extended threats to him. The final words of
complainant in the application were that petitioner by way of firing had
injured him/complainant as well as Abid Majeed.
5. Above application was sent to police station on the basis of
which FIR was recorded by Muhammad Ashraf AS1 (Pw-6).
6. Case was investigated by Kazim Hussain Saqib Naseer
Sub-Inspector (SI) who had arrested the petitioner on 11.07.2017 and on
conclusion of investigation he got submitted the report under Section 173,
Cr.P.C. (Challan) in Court.
7. Initially a charge under Section 324, PPC only was framed
against petitioner on 16.10.2017 which he did not plead guilty and claimed his
trial. Later on, an amended charge was framed under Sections 324/337-F(iii),
PPC on 24.07.2019, which again was not pleaded guilty by petitioner whereafter
prosecution had produced Muhammad Siddique/complainant (Pw-1), Abid
Majeed/injured (Pw-2), Ghulam Muhammad/eye-witness (Pw-3), Dr.
Yaqoob Kamal (Pw-4), Muhammad Shameer ASI/Moharrar (Pw-5),
Muhammad Ashraf ASI/author of FIR (Pw-6), Dr. Aksum Ilyas (Pw-7),
Dr. Muhammad Zubair Siddique (Pw-8) and Kazim Hussain Saqib Naseer SI (Pw-9).
8. After giving up Muhammad Din being unnecessary prosecution's
evidence was closed by the learned Deputy District Public Prosecutor (DDPP).
9. In his examination made under Section 342, Cr.P.C., version
of petitioner was that occurrence took place in dark night where no source of
light was available; some unknown persons committed the occurrence during theft
when Abid Majeed/injured intercepted the thieves. He further pleaded that his
involvement in this case was false.
10. Learned counsel for petitioner contended that although it
is a case of single accused but if it is established that the prosecution's
evidence is suffering from conflicts, self-contradictions, inherent defects and
infirmities, the question to sustain conviction of petitioner does not arise.
11. On the other hand learned Assistant Deputy Public
Prosecutor (ADPP) and learned counsel for complainant jointly argued that it is
a case of single accused who is specifically nominated in FIR with specific
role of firing and causing multiple injuries on the person of Abid Majeed whose
identification was not a challenge as the parties were residing in the same
vicinity, therefore, petitioner has been rightly convicted by the learned trial
Court. They further added that the medical evidence has fully supported the
version of complainant and injured; no enmity whatsoever exists between the
witnesses and petitioner, therefore, issue of false involvement does not arise;
defence was unable to shatter the credibility of the witnesses during
cross-examination. They finally maintained that as prosecution had succeeded to
prove its case, therefore, petitioner has been validly convicted on the basis
of a well reasoned judgment by the learned trial Court which was ultimately
upheld by the learned appellate Court.
12. HEARD.
13. No doubt that it is a case of single accused but it is not
a universal principle that in case of single accused question of substitution
does not arise. It may be a case of single accused or otherwise, the duty of
prosecution shall remain there to prove its case beyond reasonable doubt, who
cannot take benefit from weakness of defence.[3]
14. Occurrence took place on 08.07.2017 at about 10:30 pm and
the application (PA) was first time presented before Kazim Hussain ASI on
09.07.2017 that was the next day at 03:05 pm. In that application not a single
instance was quoted for delay in reporting the matter to police. I am conscious
of the fact that the priority was to save the life of Abid Majeed but at the
same time it has been observed that in this era the communications are so fast
that there are many ways to inform the police one of which is using the mobile
phone and to call the local or the emergency police. By assigning no reason for
delay in fact complainant has invited a challenge but unable to meet it.[4]
15. In the application (PA) at the end, the version of Muhammad
Siddique was that the petitioner by way of firing had injured him/complainant
as well as Abid Majeed. Surprisingly there is no medical report showing that
Muhammad Siddique sustained any injury in this occurrence. In Court he also
deviated from that version when he stated that petitioner caused injuries only
on his nephew Abid Majeed.
16. Prosecution's case is that petitioner was in possession of
12 bore gun and he made four repeated fires those hit on Abid Majeed and
thereafter he had been making straight firing. Beside Abid Majeed/injured,
Muhammad Siddique/complainant and Ghulam Muhammad were also there in the fields
that means that they were too within the range of firing. Keeping in view the
use of 12 bore gun, the prudent mind cannot accept that Muhammad Siddique and
Ghulam Muhammad did not sustain even a scratch and for this reason their
presence at crime scene is under serious doubt.
17. The application for registration of FIR was not drafted by
complainant but by an Advocate as evident from cross examination of Muhammad
Siddique where he responded as under:
"Sardar Abdul
Razzaq Dogar Advocate wrote Exh.PA on my deposition. Sardar Abdul Razzaq
Advocate came to us know about the occurrence when I get written
application/Exh.PA. Sardar Abdul Razzaq Dogar Advocate came to us at his
own"
18. In view of above the fact cannot be denied that the
complaint was written after due deliberations, consultations and under best
legal advice, therefore, it has lost its veracity and it cannot be said to be
first information in its true sense.
19. Coming to the statement of Abid Majeed (Pw-2) I am
conscious of the fact that he is an injured witness and his presence cannot be
disputed at crime scene but these are the recognized principles of law that
this fact by itself will not show that an injured witness has told the truth in
the Court about the occurrence; injuries on his person are not per se
tantamount to a stamp of credence on his testimony; his statement is to be
tested and appraised on the principles applied for appreciation of any other
prosecution witness.[5]
20. The medical evidence of this case is very important. Dr.
Yaqoob Kamal (Pw-4) had medically examined him on 08.07.2017 at about
11:50 pm and observed following injuries:
i. Firearm
lacerated wound .75 cm X.5 cm X going deep on the back and middle of right arm.
Blackening present margins inverted. It was entry wound.
ii. Firearm
lacerated wound. 75 cm X. 5 cm x going deep on the back and upper part of right
arm. Blackening present margins inverted. It was entry wound.
iii. Firearm
lacerated wound .75 cm x .5 cm x going deep on the back and lower inner part of
the right arm. Blackening present margins inverted. It was entry wound.
iv. Three fire-arms
lacerated wound each measuring lcm X lcm x going deep on the front middle and
front lower, part of the right arm. No blackening margins inverted, these three
wounds were exit would of Injury No. 1, 2
& 3.
v. Firearm lacerated
wounds . 75 cm x .75 cm x going deep on the back of right flank. Blackening
present margins inverted. It was entry wound.
vi. Firearm lacerated
wounds 1.5 cm x 1 cm x going deep on front of right flank. No blackening
present margins inverted. It was exit of Injury No. 5.
vii. Firearm lacerated wound 1 cm x . 75 cm x going deep on
front and upper part of right side of chest. Blackening present margins
inverted. It was entry wound. (Emphasized)
21. Out of seven injuries, six injuries were having blackening
and it is an admitted proposition under the medical jurisprudence that
blackening occurs on a wound when fire is made from a close contact that is not
more than three feet and this fact was also admitted by the doctor in
cross-examination. Another important fact is that all the entry wounds were on
the back and right side of Abid Majeed.
22. It has been noticed that according to site-plan the firing
made by petitioner was from a distance of 25 feet. So even from this angle the
version of injured and private witnesses has been falsified.
23. On spot inspection an empty of 12-bore was taken into
possession. It is the case of prosecution that the gun recovered at the
instance of petitioner was single barrel. None of the witnesses stated that
petitioner had reloaded the gun after each fire. For the sake of arguments if
this fact is ignored, even then the question arises that if multiple fires were
made by petitioner, why only one empty was found at crime scene and not the
others? Prosecution stands still here.
24. The gun was recovered on 14.07.2017 which along with empty
were sent together for forensic examination on 06.08.2017, therefore, the
positive report of PFSA (PM) shall play no role in favour of prosecution.[6]
25. It has been repeatedly held that the reasonable doubt
standard is a fundamental part of jurisprudence which once arisen, cannot be
refused and denied; this means that prosecution must present propositions which
preclude "reasonable doubt" in the mind of a reasonable person as to
the guilt of accused and that the beneficiary of this failure by the
prosecution under all the circumstances shall be the one who is called favorite
child of law.
26. Concluding the discussion made above, I find no difficulty
to hold that the prosecution has badly failed to prove its case beyond
reasonable doubt against Muhammad Younas (petitioner) therefore, this criminal
revision is allowed. Impugned judgments are set aside. Petitioner
is acquitted from the case. He is in. custody and shall be released forthwith
if not required in any other case. Case property shall be dealt in the same
manners as directed by the learned trial Court.
(A.A.K.) Revision allowed
[1]. Murder.
[2]. The period of detention in jail.
[3]. Rehmat alias Rhaman alias Waryam alias
Badshah vs. The State PLD 1977 SC 515, Abdul Majeed vs. the State 2011 SCMR 941
and Nasrullah alias Nasro vs. The State 2017 SCMR 724.
[4]. Mehmood Ahmed & 3 other vs. The State
& another 1995 SCMR 127, Mehboob lqbal vs. The State 1996 SCMR 1910. Akhtar
Ali & others vs. The State PLJ 2008 SC 269, Asia Bibi vs. the State &
others PLD 2019 SC 64 and Ghulam Abbas & another vs. the State &
another 2021 SCMR 23.
[5]. Said Ahmad vs. Zammurcd Hussain 1981 SCMR
795. Muhammad Hayat v. State 1996 SCMR 1411 and Mehmood Ahmad vs. State 1995
SCMR 127.
[6]. Nawab Ali vs. The State 2019 SCMR 2009.