2024 CCJ 30

Other citations: 2024 PCrLJ 306

[Lahore High Court]

Before Malik Shahzad Ahmad Khan and Muhammad Waheed Khan, JJ

Muhammad Azam and another—Appellants

versus

The State and another—Respondent

Criminal Appeals No. 132397, 135890 and Murder Reference No. 9 of 2018, heard on 7^th March, 2023.

HEADNOTES

(a)   Criminal trial —

— Benefit of doubt — Scope — Nobody is to be punished unless proved guilty on the basis of reliable, independent and truthful evidence and “benefit of reasonable doubt” when accruing must go to the accused. [Para. No. 9]

(b)   Criminal trial —

— Site plan — Scope — Although site plan can never be considered as substantive piece of evidence but its importance cannot be denied to determine the locations of the incident as well as the position of the witnesses particularly in those matters, where presence or otherwise, of the witnesses has been challenged. [Para. No. 10]

Muhammad Ahmad and another v. The State and others (1997 SCMR 89) relied.

(c)   Criminal trial —

— Motive — Scope — No doubt previous enmity can be a reason for the accused to commit the alleged crime but the same can equally be a reason for the complainant side to falsely implicate the accused in the case for previous grouse as motive is always considered to be a double edged weapon. [Para. No. 13]

Sahib Masih and others v. The State (1982 SCMR 178) relied.

(d)   Criminal trial —

— Absconsion, proof of — Scope — The process server neither appeared before the Trial Court nor submitted any report regarding the execution of notices — Additionally, the constable was given up by the prosecution as unnecessary — This implied that the prosecution failed to prove the fact of absconsion, as such, this piece of evidence was of no use to the prosecution. [Para. No. 15]

(e)   Criminal trial —

— Benefit of doubt — Scope — Benefit of doubt is to be given to the accused as of right and mistake in releasing a criminal is better than punishing innocent persons — “Any reasonable doubt” qua the veracity of the prosecution case or guilt of the accused when accruing shall be resolved in favour of the accused in all eventualities. [Para. No. 16]

Malik Asif Ahmad Nissonna and Muhammad Bilal Ijaz for appellant (Defence Counsel).

Muhammad Waqas Kahoot for the complainant (also in Criminal Appeal No. 135890 of 2018),

Munir Ahmad Sial, Deputy Prosecutor General for the State.

Date of hearing: 7^th March, 2023.

JUDGMENT

Muhammad Waheed Khan, J:—This judgment shall decide Criminal Appeal No. 132397 of 2018 filed by appellant Muhammad Azam (against his conviction and sentence), Criminal Appeal No.135890 of 2018 filed by the complainant (against acquittal of respondents Nos.1 to 5/co-accused persons, namely, Nasar Hayat, Muhammad Usman, Muhammad Shahzad, Muhammad Sher and Muhammad Nazir) and M.R. No.09 of 2018 forwarded by the learned trial Court for confirmation of death sentence awarded to the appellant or otherwise. As all the matters have arisen out of the same judgment dated 23.12.2017 passed by the learned Additional Sessions Judge, Shah Pur, District Sargodha in case FIR No.236 dated 19.10.2013 registered under sections 302/148/149/109, P.P.C. at Police Station Jhawanrian, District Sargodha, whereby appellant was convicted and sentenced as under;-

Under section 302(b), P.P.C. awarded death sentence as Ta’zir for committing qatl-i-amd of Shehbaz. He was also directed to pay compensation of Rs.3,00,000/- to the legal heir of the deceased under section 544-A, Cr.P.C, which shall be recovered as arrears of land revenue and in default thereof, to further undergo six months simple imprisonment.

Co-accused Rustam Shahzad being juvenile was tried separately and also convicted and sentenced by the learned trial Court/Juvenile Court, whose appeal is also being decided today. Whereas, co-accused persons Muhammad Sher, Nazeer, Nasar Hayat, Muhammad Usman and Muhammad Shahzad were acquitted of the charge by the learned trial Court vide the same judgment.

2.           Brief facts as narrated by the complainant Nazar Hayat son of Muhammad Hayat real brother of the deceased Muhammad Shehbaz are as under;-

“On 19/10/2013 at about 08:00 a.m. the complainant (PW9) along with Rab Nawaz (PW-10) and Safdar Hussain (given up PW) were ploughing in the land and in the adjacent land Muhammad Shahbaz deceased was cutting the fodder for his cattle in his agriculture land; that meanwhile accused Muhammad Azam armed with 12 bore repeater, Rustam Shehzad (being juvenile tried separately) armed with 44 bore rifle, Nasar Hayat armed with 12 bore double barrel, Muhammad Usman armed with 12 bore double barrel along with two unknown accused came there on two motorcycles. Accused Azam raised Lalkara that they had come to take revenge of his brother Samar Iqbal. Upon this juncture accused Azam made a fire shot with his 12 bore repeater which inflicted on the chest of Shehbaz deceased, accused Rustam Shehzad (tried separately being juvenile) made fire shot with his rifle 44 bore which hit Shehbaz deceased on his right armpit and chest. Then Muhammad Azam accused again made a fire shot with his .12 bore repeater which inflicted on the right calf, right thigh, left calf and left thigh of Shehbaz deceased, that Nasar Hayat made a fire with his gun which landed on left side of chin, right arm and left shoulder of the deceased, Muhammad Usman and two unknown accused persons threatened that if anybody will come near them, then he will face the same consequences. The occurrence was witnessed by Nazar Hayat complainant PW-9, Rab Nawaz PW-10 and Muhammad Safdar (given up PW), they all attended Muhammad Shehbaz who died at the spot due to sustaining of firearm injuries; that one day prior to the occurrence, Muhammad Mumtaz (given up PW) along with Ahmad Nawaz PW-11 heard accused Muhammad Sher and Muhammad Nazeer while abetting the co-accused Azam and Muhammad Rustam etc. for committing the murder of Shehbaz deceased. The motive behind the occurrence is that the complainant and the accused parties have, previous enmity of murder, due to this grudge the accused committed the murder of Shehbaz deceased.”

3.           Dr. Haseeb Ahmad MO, who conducted autopsy upon the dead body of deceased Muhammad Shahbaz on 19.10.2013 at 11:30 a.m., appeared as PW-19, he noted sixteen injuries on the person of the deceased and opined that probable time which elapsed between injuries and death was 3 to 5 hours, whereas between death and postmortem was 03 to 04 hours.

4.           After registration of the case, investigation was conducted and on culmination of the same, report under section 173, Cr.P.C. was submitted before the learned trial Court, wherein charge was framed, which was denied by the appellant and his co-accused, hence, trial commenced. In order to prove its case, the prosecution produced as many as nineteen witnesses. Ocular account was furnished by the complainant Nazar Hayat and one Rab Nawaz who appeared as PW-9 and PW-10, Ahmad Nawaz witness of abetment appeared as PW-11. Investigation of the case was conducted by Ahmad Yar ASI (PW-13), Sattar Gull SI (PW-15), Muhammad Riaz SI (PW-16) and Mushtaq Ahmad SI (PW-18). Whereas remaining PWs were of formal in nature. Thereafter, prosecution closed its evidence by producing certain documentary evidence. After recording the prosecution evidence, appellant was examined under section 342, Cr.P.C., wherein he denied all the allegations levelled against him. He neither opted to record his statement under section 340(2), Cr.P.C., nor produced any evidence in his defence. Learned trial Court after appraising of prosecution evidence convicted and sentenced the appellant in the above mentioned terms.

5.           In support of the instant appeal, learned counsel for the appellant submits that the impugned judgment is based on surmises and conjectures as material evidence in favour of the appellant had been mis-read; that in fact it was a blind murder and the police has cooked up a false story with connivance of the complainant by showing the availability of the eye witnesses at the crime scene, who otherwise have failed to prove their stance regarding their presence at the place of occurrence; that keeping in view the facts and circumstances of the case in all eventualities, it can easily be believed that neither both the eye-witnesses were available at the crime scene nor they had witnessed the incident; that even otherwise according to the prosecution’s own case, the alleged incident took place in sorghum (جوار) crop, which was 6/7 feet high and the eye-witnesses were available in the adjacent field, so, it was not possible for them to witness the incident; that motive of the incident remained far from being proved and the stated recovery of weapon of offence from the appellant is tendered inconsequential in absence of matching report with the crime empties; that there is contradiction in ocular account and medical that the prosecution remained failed to prove the alleged abscondence of the appellant according to the dictates of law on account of certain inherent defects in it; that evidence of the prosecution has already been discarded by the learned trial Court to the extent of acquitted co-accused persons. Lastly prays that since the prosecution remains failed to prove its case “beyond reasonable doubt” against the appellant, so, by accepting the instant appeal, he may be acquitted of the charge.

6.           In rebuttal, learned Deputy Prosecutor General assisted by the learned counsel for the complainant, has faithfully defended the impugned judgment and submits that the appellant is named in a promptly lodged FIR, in which names of the eye-witnesses are also mentioned; that the complainant Nazar Hayat (PW-9) is the real brother of the deceased, whereas Rab Nawaz eye-witness is also related to them, so, it cannot be expected from the close relatives of the deceased to let off the real culprit by implicating an innocent accused; that presence of both the eye-witnesses cannot be doubted on any hypotheses as both of them and the deceased were working in their fields when the unfortunate incident of murder of their brother took place, hence, they are the natural witnesses of the incident; that motive of the incident is also an admitted phenomenon as both the parties were previously indulged in a murder case; that long abscondence of the appellant of two years and the recovery of weapon of offence and report regarding its working condition provide sufficient corroboration to the ocular account and lastly submits that since the prosecution has proved its case to the hilt, hence, there is no substance in the assertions of learned counsel for the appellant and the instant appeal is liable to be dismissed.

7.           Learned counsel for the complainant in support of Criminal Appeal No.135890 of 2018 filed by the complainant against acquittal of respondents Nos.1 to 5/accused persons has submitted that there is sufficient incriminating material available on record against the acquitted accused persons and the learned trial Court while convicting co-accused admitted the evidence adduced by the prosecution and had relied upon it, so under the circumstances, there was no occasion for the learned trial Court to acquit the accused persons/respondents from the charge. Lastly, prays that the appeal against acquittal be accepted and the respondents/ accused persons be convicted and punished accordingly.

8.           We have heard the arguments of learned counsel for the appellant, learned Law Officer, learned counsel for the complainant and have gone through the record with their assistance. It is noticed that the unfortunate incident of murder of one Muhammad Shahbaz took place on 19.10.2013 in the agricultural land of the deceased situated in Mouza Sadal, the place three kilometers away from the Police Station. According to the contents of the FIR, lodged on the statement of Nazar Hayat (PW-9), he along with Rab Nawaz son of Allah Bakhsh (PW-10) was available at his own land, when accused persons mounted a murderous assault upon Muhammad Shahbaz and in their view, Muhammad Azam (Appellant), Rustam Shahzad (co-accused tried separately and convicted) and Nasar Hayat (since acquitted) started firing with their respective firearm weapons and fires hit on different parts of body of Muhammad Shahbaz, who succumbed to the wounds at the spot. The incident allegedly took place in the backdrop of motive of previous murder enmity between parties and though no detail in this regard has been mentioned in the FIR but record manifests that previously one Samar Iqbal brother of the appellant was murdered, in which Muhammad Shahbaz (deceased) and Nazar Hayat (complainant) were cited as accused. The evidence of the prosecution is structured upon ocular account provided by the above said two eye-witnesses i.e. Nazar Hayat (PW-9) and Rab Nawaz (PW-10), medical evidence provided by Dr. Haseeb Ahmad (PW-19), evidence of motive, the alleged abscondence of the appellant and the recovery of weapon of offence coupled with the report furnished by the Punjab Forensic Science Agency (PFSA).

9.           We have analyzed and appreciated the evidence of the prosecution in the light of above said criteria and observed that since the alleged incident took place in the backdrop of previous murder enmity between the parties, so in that eventuality, usually a strict standard of proof is required to be applied for determining the innocence or guilt of the accused and we are also mindful that nobody is to be punished unless proved guilty on the basis of reliable, independent and truthful evidence and “benefit of reasonable doubt” when accruing must go to the accused. Learned counsel for the appellant has strongly questioned the availability of both the eye-witnesses at the crime scene by stating therein that it was a blind murder and later on the complainant with connivance of the local police maneuvered the facts and the FIR was lodged with pre- consultation and due deliberation on part of the prosecution witnesses, including the eye-witnesses. We have noticed that the complainant claimed that he was cutting the fodder from his land when the assailants attacked upon his brother. We have gone through the scaled and un- scaled site plan (Ex-PB and Ex-PR respectively) and noticed that there is no doubt that point No.1, where Muhammad Shahbaz was done to death lying in field, which was shown under cultivation of the deceased as tenant and the said Killa No.5, Square No.15 was shown to be owned by one, Nazar son of Sohrab Rehan, and the claim of the eye-witnesses was that they were ploughing field at point No.6 but the name of the complainant is neither mentioned as a tenant nor as an owner because one, Iqbal son of Langer Khan Rehan was shown as owner of the said Jand i.e. Square No. 16, Killa No.6. Although learned counsel for the complainant has argued that the said land was under the possession of the complainant as he had got the same on lease but no such fact is mentioned on both the site plans. Yet, there is another aspect of the case which raises our eye-brows that according to the prosecution version, the complainant along with Rab Nawaz was ploughing the above said field i.e. Square No.16, Killa No.6 but as per site plan, the Investigating Officer Muhammad Riaz SI (PW-16) and Malik Muhammad Hafeez Draftsman (PW-2) observed and noted the lucerne (لہسن) crop in that field and they neither observed any sign of ploughing nor mentioned availability of any tractor in the site plan. Similarly, according to the record and version of PWs, there was a sorghum (جوار) crop in the field, where Muhammad Shahbaz was done to death. While elaborating this situation, Nazar Hayat complainant (PW-9) deposed before the learned trial Court in following terms;-

“The height of crop of Jawar might be around 6/7 feet. If a person is standing in the said crop then one cannot see from a distance.”

The distance between point No.1 (where the dead body was found) and points Nos 6 and 7 (where the PWs were available) was shown as 88 feet, so, we believe that if for the sake of arguments, the availability of the PWs is believed at the stated place, even then it was impossible for them to see the incident, which according to the prosecution took place in the field having 5/6 feet sorghum crop. When confronted, learned Law Officer assisted by learned counsel for the complainant has admitted that no sickle of the deceased or cutting fodder was shown available at the crime scene.

10.         So far as the contention of learned counsel for the complainant that site plan cannot be considered as a substantive piece of evidence, so, any entry adverse to the interest of the prosecution mentioned therein cannot damage and diminish the value of the prosecution evidence, we believe that although site plan can never be considered as substantive piece of evidence but its importance cannot be denied to determine the locations of the incident as well as the position of the witnesses particularly in those matters, where presence or otherwise, of the witnesses has been challenged. Reliance in this regard is placed upon the judgment passed by the top Court of the country in case of “Muhammad Ahmad and another v. The State and others” (1997 SCMR 89), wherein it is held that:-

“Learned counsel for the appellant was infirmity in the aforenoted observations/findings of the learned Judges of the High Court except their reliance on the site plan which according to the learned counsel was not a substantive piece of evidence. We have not been able to see any force in the objection of the learned counsel. The site plan was prepared by the Draftsman at the pointation of the eye-witnesses. It could, on therefore, will be referred to for determining the respective positions of the assailant/appellant and the deceased.”

11.         Likewise, we have observed that Rab Nawaz (PW-10) second eye-witness was not the resident of the village of the complainant and the deceased as the complainant (PW-9) while deposing before the learned trial Court himself admitted this factum in the following, words;-

“Rabnawaz PW is resident of village Kudlathi.”

The same address is given by Rab Nawaz (PW-10) while deposing before the learned trial Court. The PWs just stated before the learned trial Court that he along with Nazar Hayat and Safdar Hussain was present at Saidal and were ploughing agricultural land of Nazar Hayat complainant (PW-9) but no reason whatsoever has been explained by this PW qua his visit to the deceased or the complainant. So, this PW in all eventualities cannot be considered a natural witness and there is force in the arguments of learned counsel for the appellant that he (PW-10) can be categorized as chance witness.

12.         So far as the argument about contradiction between ocular account and medical evidence is concerned, we have undertaken in-depth analysis of the record and noticed that in the scaled site plan, the distance between appellant Muhammad Azam, with that of deceased Muhammad Shahbaz, was shown as three feet and according to the prosecution case, he was armed with 12 bore repeater gun but on going through the testimony of Dr. Haseeb Ahmad (PW-19) and postmortem report of the deceased (Ex-PS), sixteen firearm wounds were observed by the Medical Officer during the autopsy of the deceased, out of whom fifteen were declared as having the inverted margins (entry wounds) but none of the wound carried any blackening, burning, charring or tattooing. Meaning thereby that the Medical evidence is not in line with the prosecution case rather it contradicts the same as far as the distance of assailants and the deceased is concerned.

13.         Yet, there is another aspect of the case that evidence of the prosecution had been belied and discarded by the learned trial Court to the extent of five acquitted co-accused, especially to the extent of Nasar Hayat, who allegedly fired gun shot on the person of the deceased, which hit him on his chin, right and left arms. So, in the prevailing circumstances, strong and independent corroborative evidence is the required in support of the ocular account to maintain the conviction of the appellant. For this purpose, we have gone through the other pieces of evidence relied upon by the prosecution and noticed that previous enmity between parties is the admitted phenomenon. No doubt it can be a reason for the appellant to commit the alleged crime but the same can equally be a reason for the complainant side to falsely implicate the appellant in this case for previous grouse as motive is always considered to be a double edged weapon. Reliance is placed on the dictum laid down by the august Supreme Court of Pakistan in the case of “Sahib Masih and others v. The State” (1982 SCMR 178) wherein at page No.183, it had been observed as under;-

“The motive by itself in a case like this, serves as a double-edged weapon. It could prompt false implication. It could as well prompt revenge in the form of aggression. In determining the intrinsic worth or consistency of the statement of eye-witnesses, the mere presence of motive is not sufficient.”

14.         The next piece of evidence is the alleged abscondence of the appellant as according to the record, the appellant was apprehended by the police on 03.08.2015 almost about one year and ten months after the alleged occurrence and during the interregnum, he had been declared proclaimed offender. We have gone through the evidence in this regard and straightway observed that although the prosecution has exhibited the documents of proclamation proceedings initiated against the appellant but when confronted, learned counsel for the complainant has admitted that neither the process server had appeared before the learned trial Court nor any report qua the execution of notices had been brought on record. Learned Law Officer has also apprised that Muhammad Khan constable had been given up by the learned Prosecutor being un-necessary. Meaning thereby that the prosecution remained failed to prove the factum of abscondence and proclamation proceedings under sections 87/88, Cr.P.C., as per dictates of law. So, this piece of evidence is also of no avail for the prosecution.

16.         It is basic principle of criminal justice system that benefit of doubt is to be given to the accused as of right and mistake in releasing a criminal is better than punishing innocent persons. It is also cardinal principle of law that “any reasonable doubt” qua the veracity of the prosecution case or guilt of the accused when accruing shall be resolved in favour of the accused in all eventualities. So while relying upon the judgments passed by the august Supreme Court of Pakistan in cases of “Tariq Pervez v. The State” (1995 SCMR 1345), “Ayub Masih v. The State” (PLD 2002 SC 1048), “Muhammad Akram v. The State” (2009 SCMR 230), “Muhammad Ashraf alias Acchu v. The State” (2019 SCMR 652), “Munir Ahmad and another v. The State and others” (2019 SCMR 79) and “The State through P. G. Sindh and others v. Ahmed Omar Sheikh and others” (2021 SCMR 873), we reach to an irresistible conclusion that the prosecution remained unable to prove its case against the appellant according to the dictates of law.

17.         In view of the above, the conclusion is inescapable that no implicit reliance can be placed on the prosecution evidence to maintain the conviction and sentence in an offence which carries capital punishment. We, therefore, allow this appeal, set aside the conviction and sentence awarded by the learned trial Court through impugned judgment to the appellant Muhammad Azam and acquit him of the charge. He is in jail, so, he be released forthwith if not required to be detained in any other case. Resultantly, Murder Reference No.09 of 2018 is answered in NEGATIVE and death sentence of the appellant is NOT CONFIRMED.

18.         So far as Criminal Appeal No.135890 of 2018 filed by the complainant against the acquittal of respondents Nos.1 to 5/accused persons is concerned, we have perused the record and found that all of them have rightly been acquitted of the charge by the learned trial Court. hence, the same being without merits is hereby dismissed.

Order accordingly