Criminal Appeal No. 80-L of 2017, decided on 10th May, 2019.
(On appeal from the judgment dated 19.02.2014 passed by the Lahore High Court, Bahawalpur Bench in Criminal Appeal No. 142-J/ 2010/BWP and Murder Reference No. 14 of 2010)
Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ
Penal Code (XLV of 1860)—
—-S. 302(b)—Qatl-i-amd—Reappraisal of evidence—Conflict between ocular account and medical evidence—According to the complainant and another witness, the accused made two successive shots on the deceased, first landing on the right arm, while second hitting the back—Both said witnesses were in a diametrical conflict with the position taken in the crime report wherein the accused was assigned solitary shot landing on the deceased’s chest—Such confusion was further compounded by the statement of the medical officer who noted that there was an entry wound on the posterior aspect of left shoulder; that the bullet exited from the chest valve; and that the second fire shot was on the right upper arm with its corresponding exit—Such description was not in line with the prosecution case that the accused targeted the chest as the wound noted by the medical officer was an exit wound—Furthermore with somewhat trivial roles acquittal of eight co-accused persons on the same set of evidence was yet another factor casting doubt over the prosecution case—Prosecution case was fraught with doubts, thus it was unsafe to maintain the conviction of accused—Appeal was allowed, and the accused was acquitted of the charge.
Shahzad Hassan Sheikh, Advocate Supreme Court (State Counsel) for Appellant.
Nasib Masih, Advocate Supreme Court for the Complainant.
Mazhar Sher Awan, Additional Prosecutor-General for the State.
Date of hearing: 10th May, 2019.
QAZI MUHAMMAD AMIN AHMED, J.—Rustam Ali was shot dead at 4.00 p.m. on 14.9.2008 within the remit of Police Station Mecloed Gunj. Incident was reported by his father Muhammad Bilal. Besides Mansab Ali, appellant, Muhammad Ahmad, Muhammad Mazhar, Muhammad Wahid, Muhammad Saleem, Muhammad Ismail, Muhammad Ifrahim, Muhammad Yousaf and Muhammad Tahir, differently armed were arrayed as accused in the crime report. Fatal shot is attributed to the appellant, whereas Muhammad Yousaf accused is assigned a club blow to the complainant. Motive for the crime is dispute over distribution of water. The accused claimed trial which resulted into appellant’s conviction under clause (b) of section 302 of Pakistan Penal Code, 1860 with penalty of death by a learned Additional Sessions Judge vide judgment dated 17.3.2010; co-accused were acquitted from the charge. A learned division bench of Lahore High Court vide impugned judgment dated 19.2.2014 maintained the conviction, however altered the penalty of death into imprisonment for life.
2. Prosecution case is structured upon ocular account. According to Muhammad Bilal, PW-6, the appellant made two successive shots on the deceased, first landing on the right arm, while second hitting the back; Muhammad Mansha, PW-7 took the same position. Both of them are in a diametrical conflict with the position taken in the crime report wherein the appellant is assigned solitary shot landing on the deceased’s chest. Confusion is further compounded by the statement of Dr. Javid Ahmed, PW-3, who noted an entry wound on the posterior aspect of left shoulder; the bullet exited from the chest valve; the second fire shot was on the right upper arm with its corresponding exit. This is not in line with the prosecution case that the appellant targeted the chest as the wound noted by the Medical Officer is an exit wound. Both the witnesses have been duly confronted with their deviation from previous statements. From amongst the acquitted accused, Muhammad Yousaf was assigned a club blow to Muhammad Munawar, PW-8, noted by the Medical Officer as a painful swelling; his acquittal went without challenge. The learned Law Officer has not been able either to justify witnesses’ departure from previous statements or to explain conflict between ocular account and medical evidence. Though with roles somewhat trivial nonetheless, en bloc acquittal of co-accused on the same evidence is yet another predicament facing the State. The prosecution case is fraught with doubts, thus it would be unsafe to maintain the conviction. Resultantly, the appeal is allowed, the impugned judgment is set aside. The appellant shall be set at liberty forthwith, if not required in any other case.
MWA/M-21/SC Appeal allowed.