MUHAMMAD ASLAM and 3 others Vs The STATE and another

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lahore high court
lahore high court

MUHAMMAD ASLAM and 3 others—Appellants

Vs

The STATE and another—Respondents

Criminal Appeals Nos. 915, 1011, Criminal P.S.L.A. No.114 and Murder Reference No.204 of 2014, heard on 15th November, 2018.

Before Sayyed Mazahar Ali Akbar Naqvi and Muhammad Waheed Khan, JJ

(a) Penal Code (XLV of 1860)—

—-Ss. 302, 428, 429, 395, 109, 148 & 149—Qatl-i-amd, mischief by killing or maiming animal of the value of ten rupees, mischief by killing or maiming cattle of any value or any animal of the value of fifty rupees, dacoity, abetment, rioting armed with deadly weapon, unlawful assembly—Appreciation of evidence—Benefit of doubt—Accused was charged that he along with co-accused persons while armed with deadly weapons assaulted on complainant party, made firing upon them, due to which four persons of the complainant party died—Motive behind the occurrence as disclosed in the crime report was that accused had suspicion that deceased persons had murdered their brother and children—Ocular account in the present case had come from the mouth of two witnesses including complainant—Said witnesses had claimed that they were present at the spot and they had seen the assailants while resorting to indiscriminate firing resulting into instantaneous death of all the four deceased—No denial was available to the effect that both the prosecution witnesses of the ocular account were related to the deceased as complainant was real brother of the deceased while he was son of other deceased whereas the other eye-witness was real brother of deceased—Where the ocular account was coming from a source, which was interested, related and biased, independent corroboration was always deemed essential for taking it into consideration—Facts and circumstances of the case showed that the case of accused-appellant was distinguishable from the other three co-accused persons-appellants—Co-accused persons had been assigned the role of generalized nature of causing fire-arm injuries while accused-appellant had been ascribed specific role of inflicting injury on the person of deceased/father of complainant—Prosecution witnesses could not establish the case against all the accused person on equal footing, in circumstances—Co-accused persons-appellants took specific plea during investigation that they were not present at the place of occurrence at the relevant time—Number of persons had appeared during the course of investigation in support of plea of alibi taken by co-accused persons-appellants, which was accepted by the Investigating Officer and even their arrest was deferred—No recovery of any sort of weapon was affected from co-accused persons-appellants—Case of co-accused persons-appellants was squarely distinguishable from the case of accused-appellant—Motive of previous enmity over murders had been alleged against the accused; however, during the course of trial, it had come to limelight that brother of the complainant was involved in murder case of brother of accused-appellant, wherein he was sentenced to death—Motive was not against the present co-accused-appellants—Similarly, prosecution had failed to substantiate its version with regard to abetment, which was discarded by the trial court—Record transpired that on the same set of evidence, five co-accused persons were acquitted of the charge—No allegation against co-accused persons-appellants was levelled about making firing upon the cattle-head, which might have constituted the offence under S. 429, P.P.C.—Prosecution had failed to prove its case against the co-accused persons beyond any shadow of doubt, in circumstances—Appeal was allowed and co-accused persons were acquitted by setting aside conviction and sentences recorded by Trial Court.

(b) Criminal trial—

—-Benefit of doubt—Principle—Single circumstance creating reasonable dent in the veracity of the prosecution version could be taken into consideration for giving its benefit to the accused, not as a matter of grace rather as a matter of right.

Tariq Pervez v. The State 1995 SCMR 1345; Riaz Masih alias Mithoo v. The State 1995 SCMR 1730 and Muhammad Akram v. The State 2009 SCMR 230 rel.

(c) Penal Code (XLV of 1860)—

—-Ss. 302, 428, 429, 395, 109, 148 & 149—Qatl-i-amd, mischief by killing or maiming animal of the value of ten rupees, mischief by killing or maiming cattle of any value or any animal of the value of fifty rupees, dacoity, abetment, rioting armed with deadly weapon, unlawful assembly—Appreciation of evidence—Sentence, reduction in—Mitigating circumstances—Accused was charged that he along with co-accused persons, while armed with deadly weapons assaulted on complainant party, made firing upon them, due to which four persons of the complainant party died—In the present case, accused was saddled with the role of making a fire short with .12-bore gun on the person of deceased father of complainant—Subsequent to the arrest of accused, .12-bore gun was recovered on his pointation—Medical evidence revealed that the dimension of injuries on the person of deceased father of complainant reflected that the same had been caused with a weapon having .12-bore caliber, which commensurated with the recovery from accused-appellant—Investigating Officer had opined that it was talk of the town that accused-appellant with one unknown accused had committed the murder—Witnesses of the ocular account remained consistent that accused-appellant had made fire-shot upon deceased/father of complainant and there was nothing on record to discard their statements to that extent—Dimension of injury on the person of deceased coupled with recovery of .12-bore gun further established link of accused with the occurrence—Statements of both the prosecution witnesses of the ocular account to the extent of accused-appellant seemed to be reasonable, trustworthy and confidence conspiring—Reports of the concerned quarter regarding bloodstained earth showed its origin was detected as human blood—Prosecution had succeeded in bringing home guilt against accused-appellant, in circumstances—Accused had been ascribed the role of single fire-shot upon the deceased and had not been ascribed any fire shot on rest of the deceased person—Although .12-bore gun was stated to have been recovered from accused-appellant during the course of investigation, however, report of Forensic Science Laboratory was negative—Said facts fell within the ambit of mitigation—Sentence of death awarded by Trial Court was modified to imprisonment for life by the High Court.

Muhammad Riaz and another v. The State and another 2007 SCMR 1413 and Muhammad Sharif v. The State PLD 2009 SC 709 rel.

Abid Saqi, Mudassar Farooq, Sohail Afzal Khan and Muhammad Usman Cheema for Appellants.

Saeed Ahmad Sheikh, Additional Prosecutor General for the State.

Rai Bashir Ahmed for Appellant/ Complainant (in Criminal Appeal No.1011) and for Petitioners (in P.S.L.A. No. 114 of 2014).

Date of hearing: 15th November, 2018.

JUDGMENT

SAYYED MAZAHAR ALI AKBAR NAQVI, J.—Mohammad Aslam son of Muhammad Din, resident of Ajjowal, Tehsil Malikwal, District Mandi Baha-ud-Din, Iftikhar Ahmad son of Fazal Ahmad, resident of Kakowal, Tehsil Malikwal, District Mandi Baha-ud-Din, Muhammad Afzal son of Ghulam Haider, resident of Kakowal, Tehsil Malikwal, District Mandi Baha-ud-Din, Gulzar Ahmad son of Ghulam Haider, resident of Kakowal, Tehsil Malikwal, District Mandi Baha-ud-Din, appellants along with Zafar Iqbal (convict), Mst. Razia Begum, Fazal Ahmad, Muhammad Aslam, Ghulam Haider and Mst. Azhra (all since acquitted) and Modassar, Muhammad Iqbal and Muhammad Ameer (all since P.Os) were involved in case FIR No.431/2010, dated 08.08.2010, offence under Sections 302, 427, 428, 109, 148, 149, P.P.C., registered with Police Station Malikwal, District Mandi Baha-ud-Din. During the course of investigation except Muhammad Aslam, appellant, rest of the accused were found innocent and their names were placed in column No.2 of the report prepared under Section 173, Cr.P.C. The complainant being aggrieved preferred to file private complaint titled:-

“Ghulam Abbas v. Muhammad Aslam, etc.”

under Sections 302, 109, 428, 429, 148, 149 and 395, P.P.C. On filing of complaint, learned trial court recorded preliminary/cursory statements of the prosecution witnesses and vide order dated 01.10.2011 issued process against the accused/respondents. After recording of evidence and taking into consideration the material available on record, learned trial court vide judgment dated 06.05.2014 concluded that charge against the appellants/convict was proved, hence convicted and sentenced them as under:–

Sr#Name of the appellant/ convictSentence/Conviction
1Muhammad Aslam> Under Section 302(b), P.P.C., sentenced to death as Ta’zir on four counts with direction to pay Rs.2,00,000/- as compensation to legal heirs of each of the deceased in terms of Section 544-A, Cr.P.C. and in case of default in payment thereof, to undergo S.1. for six months on each count > Under Section 429, P.P.C., sentenced to undergo five years R.I. with fine of Rs. 10,000 and in case of default in payment thereof, to further undergo S.I. for one month. > Under Sections 148/ 149, P.P.C. sentenced to undergo R.I. for three years.
2Iftikhar Ahmad> Under Section 302(b), P.P.C., sentenced to death as Ta’zir on four counts with direction to pay Rs.2,00,000/- as compensation to legal heirs of each of the deceased in terms of Section 544A, Cr.P.C. and in case of default in payment thereof, to undergo S.I. for six months on each count > Under Section 429, P.P.C., sentenced to undergo five years R.I. with fine of Rs.10,000 and in case of default in payment thereof, to further undergo S.I. for one month. > Under Sections 148/149, PPC, sentenced to undergo R.I. for three years.
3Muhammad Afzal> Under Section 302(b), P.P.C., sentenced to death as Ta’zir on four counts with direction to pay Rs.2,00,000/- as compensation to legal heirs of each of the deceased in terms of Section 544-A, Cr.P.C. and in case of default in payment thereof, to undergo for six months on each count > Under Section 429, P.P.C., sentenced to undergo five years R.I. with fine of Rs.10,000 and in case of default in payment thereof, to further undergo S.I. for one month. > Under. Sections 148/149, P.P.C., sentenced to undergo R.I. for three years.
4Gulzar Ahmad> Under Section 302(b), P.P.C., sentenced to death as Taizir on four counts with direction to pay Rs.2,00,000/- as compensation to legal heirs of each of the deceased in terms of Section 544A, Cr.P.C. and in case of default in payment thereof, to undergo for six months on each count > Under Section 429, P.P.C. sentenced to undergo five years R.I. with fine of Rs.10,000 and in case of default in payment thereof, to further undergo S.I. for one month. > Under Sections 148/149, P.P.C., sentenced to undergo R.I. for three years.
5Zafar Iqbal (convict)> Under Section 302(b), P.P.C., (convict) sentenced to death as Ta’zir on four counts with direction to pay Rs.2,00,000/- as compensation to legal heirs of each of the deceased in terms of Section 544-A, Cr.P.C. and in case of default in payment thereof to undergo S.I. for six months on each count > Under Section 429, P.P.C., sentenced to undergo five years R.I. with fine of Rs.10,000 and in case of default in payment thereof, to further undergo S.I. for one month. > Under Sections 148/149, P.P.C., sentenced to undergo R.I. for three years.

2. Feeling aggrieved by the judgment of the learned trial court, Muhammad Aslam, Iftikhar Ahmad, Muhammad Afzal and Gulzar Ahmad, appellants have assailed their conviction and sentence through filing Crl. Appeal No.915/2014. It is pertinent to mention here that at the time of pronouncement of judgment, Zafar Iqbal/convict slipped away and he did not file appeal against his conviction and sentence before this Court. Learned trial court forwarded Murder Reference No.204/2014 for confirmation of sentence of death inflicted upon the convicts. Ghulam Abbas son of Jalal Akbar complainant, filed Crl. Appeal No.1011/2014 against acquittal of Mst. Razia Begum, Fazal Ahmad, Muhammad Aslam son of Ghulam Muhammad, Ghulam Haider and Mst. Azhra/ respondents whereas he also filed Crl. PSLA No.114/2014 against acquittal of aforesaid respondents/accused. It is pertinent to mention here that as the judgment was passed in a complaint case, therefore, remedy provided under the law against acquittal of accused is to file petition for leave to appeal, hence, Crl. Appeal No.1011/2014 being on the same subject against same set of accused/ respondents is hereby dismissed. As all the remaining matters are arising out of one and the same judgment of the learned trial court, therefore, these are being disposed off through consolidated judgment.

3. Prosecution story as portrayed in the FIR (Exh.PI) lodged on the statement (Exh.PW) of Ghulam Abbas son of Jalal Akbar, caste Gondal (PW-11) is that the complainant is an employee of Pakistan Army and resident of Ajjowal. On 08.08.2010 the complainant had gone to his home to spend one month leave. At about 7.30 p.m., the complainant along with his father Jalal Akbar and brother Muhammad Anar, caste Gondal, Saifullah son of Maula Balksh, caste Muslim Sheikh, Bashir Ahmad son of Muhammad Din, caste Gujjar both residents of Ajjowal, Muhammad Walayat son of Ali Muhammad, his nephew Taimoor-ul-Hassan son of Muhammad Anar, both Gondal by caste, residents of Ajjowal were present at their ‘haveli’/cattle-shed for milking. All of sudden, accused (1) Muhammad Aslam armed with gun .12-bore, (2) Asad Nazir son of Muhammad Nazir, (3) Zafar Iqbal son of Muhammad Akbar, (4) Mudassar son of Muhammad Akbar, (5) Iftikhar Ahmad son of Fazal Ahmad, (6) Muhammad Afzal son of Ghulam Haider, (7) Muhammad Iqbal son of Ghulam Haider, (8) Gulzar Ahmad son of Ghulam Haider, all armed with firearms, (9) Mst. Razia Begum daughter of Muhammad Din carrying a bag of cartridges/bullets in her hand while raising ‘lalkaras’ entered the ‘haveli’ to teach lesson for murder of Ashraf and started straight/indiscriminate firing with their firearms. Muhammad Aslam accused made straight fire shot with his gun hitting Jalal Akbar father of the complainant on different parts of his body who fell down. Remaining accused persons made indiscriminate firing with their firearms and inflicted injuries to Muhammad Anar, Saifullah and Bashir on their different parts of bodies, who also fell down. The complainant, Muhammad Walayat and Taimoor-ul-Hassan saved their lives by hiding themselves in rooms. In the meanwhile on hearing the reports of firing, Ejaz Ahmad son of Muhammad Walayat, Nassar Iqbal son of Muhammad Hayat and Tanveer Abbas son of Maula Bakhsh arrived at the place of occurrence and witnessed the occurrence whereas the accused persons made their good escape while raising ‘lalkaras’. The complainant party attended Jalal Akbar, Muhammad Anar, Bashir Ahmad and Saifullah who succumbed to the injuries at the spot as a result of firing made by accused persons. The complainant alleged that due to firing of aforesaid accused two buffalos of the complainant also died at the spot whereas Muhammad Aslam accused took away licensed rifle .44-bore of his brother Muhammad Anar (deceased) with him. It was averred by the complainant that the aforesaid accused persons committed this occurrence on the abetment/instigation of (1) Fazal Ahmad son of Mirza, (2) Muhammad Aslam son of Ghulam Muhammad, (3) Muhammad Ameer son of Muhammad Din, (4) Ghulam Haider son of Motalli Khan and Azhra widow of Nazir and conspiracy was heard by Haji Ghulam Muhammad son of Mirza Khan, Mirza Khan son of Muhammad Hayyat, caste Gondal, residents of Badsha Pur made in the ‘baithak’ of Fazal Ahmad, some days prior to the occurrence.

Motive behind the occurrence as disclosed in the crime report was that accused had suspicion that Jalal Akbar and Muhammad Anar (deceased-persons) had murdered their brother Muhammad Ashraf and his children and in this regard a case stood registered at Police Station Civil Line, Mandi Baha-ud-Din. At the time of occurrence besides the above accused persons, two unknown accused were also accompanying them, who also made firing at the spot and killed father of the complainant, his brother and employees, as well as, buffalos.

4. On receipt of information regarding the occurrence, Riaz Hussain S.I. (CW-1) along with other police officials reached at the place of occurrence where Ghulam Abbas, complainant (PW-11) made his statement, which was reduced into writing (Exh.PW) and after endorsing police karvai the same was transmitted to Police Station through Shahid Imran 1557/C for registration of formal FIR. Thereafter Investigating Officer prepared inquest reports of deceased, Jalal Akbar (Exh.PO), Saifullah (Exh.PR), Bashir (Exh.PL) and Anar (Exh.PU). He also drafted injury statements of above mentioned four deceased viz. Jalal Akbar (Exh.PP), Saifullah (Exh. PS), Bashir (Exh.PM) and Anar (Exh. PL). Subsequently Investigating Officer secured blood stained earth from the places of murder of four deceased persons, made it into sealed parcel and took into possession vide recovery memos Exh.CW-1/A, Exh.CW-1/B, Exh.CW-1/C and Exh. CW-1/D respectively. He inspected the place of occurrence and collected four crime empties of gun .12-bore and thirty two empties of Kalashnikov vide recovery memo Exh.CW-1/E. He prepared rough site plan of the place of occurrence (Exh. CW-1/F). Investigating Officer dispatched the dead bodies of the deceased to mortuary under the escort of Mahroof Waheed constable. After postmortem examination last worn clothes of the deceased were produced before the Investigating Officer, which were taken into possession vide recovery memo Exh.PA, Exh.PB, Exh.PC and Exh. PD respectively. Upon the direction of Investigating Officer and pointing out of the PWs on 09.08.2010 Gulzar Ahmad, Draftsman (PW-09) took rough notes of the place of occurrence and thereafter prepared scaled site plan (Exh.PL), which was made part of the file. On 19.08.2010, Investigating Officer arrested Muhammad Aslam appellant and obtained his physical remand. During the course of interrogation in pursuance of disclosure on 25.08.2010, Muhammad Aslam appellant led to the recovery of rifle .44-bore (stolen at the time of occurrence) (P-13) along with a magazine containing five live bullets, which were taken into possession vide recovery memo Exh.PH. On 26.08.2018 Aslam appellant led to the recovery of gun .12-bore (P-13) which the Investigating Officer took into possession vide recovery memo Exh. PH.

5. After conducting the investigation, Investigating Officer submitted report under Section 173, Cr.P.C. while placing the name of Muhammad Aslam son of Muhammad Din appellant in column No.3, however, the names of remaining appellants along with co-accused were placed in column No.2 of the challan. The complainant preferred to file private complaint; wherein the accused were summoned. On 07.03.2012, learned Additional Sessions Judge formally charge sheeted the appellants to which they pleaded not guilty and claimed trial. Prosecution in order to substantiate its case produced as many as thirteen (13) prosecution witnesses while two court witnesses also made their statements.

6. Occular account in this case consists of the statements of complainant Ghulam Abbas (PW-11) and Muhammad Walayat (PW-13). Haji Ghulam Muhammad (PW-3) is the witness of abetment. Khalid Mehmood, ASI (PW.6) had chalked out formal FIR while Gulzar Ahmad, Draftsman (PW-9) had prepared scaled site plan of the place of occurrence. Dr. Muhammad Aslam (PW.12) is the veterinary doctor who conducted postmortem of one buffalo and examined four cattle. Investigation in this case was conducted by Riaz Hussain, S.I. (CW-1) and Shoukat Hayyat, S.P. (CW-2).

On 09.08.2010, Dr. Muhammad Sattar (PW-10) had conducted postmortem examination over the dead body of Bashir Ahmad deceased and observed following injuries on his person:–

“1-A. A firearm lacerated entry wound 1 x 1 cm, at the inner pinna of right ear going deep with inverted margins.

1-B. A firearm lacerated exit wound 2 cm x 5 cm on the posterior side of left ear.

2-A. A firearm lacerated entry wound 1 cm x 1 cm on the lower side of front of right chest, 18 cm below right nipple and 14 cm right to umbilicus with inverted margins.

2-B. A firearm exit wound 2 x 2 cm on right side of back of chest 8 cm below right lower border of right scapula with averted margin.

3-A. A firearm entry wound 1 x 1 cm at the umbilicus with inverted margins going deep.

3-B. A firearm lacerated exit wound 2 x 2 cm on the right side of back of abdomen, 4 cm right to vertebral column, 10 cm, above the right iliac crest with averted margins.

4-A. A firearm entry wound 1 x .5 cm on right front of lower abdomen, 3 cm above right iliac crest with averted margins going deep.

4-B. A firearm lacerated exit wound 4 x 1.5 cm on right side of back of abdomen, 15 cm lateral to veritable column with averted margins.

5-A. A firearm lacerated entry wound, 1 x 1 cm on right side of back of skull with averted margins going deep.

5-B. A firearm lacerated exit wound 2 x 1 cm on base of left ear, back side with averted margins.

6-A. A firearm lacerated entry wound on the lateral side of left upper arm in the center of shoulder and elbow with averted margins.

6-B. A firearm lacerated exit wound 2 x 2 cm on the medial side of left upper arm in auxiliary region with averted margins.

After conducting postmortem examination doctor rendered the following opinion: –

“After careful examination of dead body, I was of the opinion that all the injuries were ante mortem caused by firearm. Death had occurred collectively by all the injuries, leading to damage to vital organs, brain lung etc and excessive hemorrhage and shock, which leads to cardiopulmonary arrest and death. Injury Nos.1 to 5 were individually fatal in ordinary course of nature of death:

Probable time between injury and death was immediate, whereas probable duration between death and postmortem was 10-12 hours.”

On the same day, at about 7.40 a.m., he conducted postmortem examination on the dead body of Jalal Akbar deceased and observed following injuries on his person:–

“1. A firearm entry wound 6 x 4 cm, on front of right shoulder with inverted margins going deep.

2 A firearm entry wounds 9 in number, on front of chest, left side size being 1 x 1 cm and 1 x 1.5 cm going deep with averted margins.

3. A firearm entry wound 1 cm x 1 cm on the lateral aspect of upper end of upper right arm.

4. A firearm lacerated entry wound 4 in number, in front of neck size being 1 x 1 cm.

5-A. A firearm entry wound 1 x 1.5 cm below left side of mandibular margin going deep with inverted margin.

5-B. A firearm exit wound 1.5 x 1.5 cm on right side of neck below right side of chin with averted margins.

6-A. A firearm entry wound 1 x 1.5 cm, on left side of abdomen, 10 cm above left iliac crust with inverted margin going deep.

6-B. A firearm lacerated wound exit wound 2 x 1.5 cm, left side of lower part of abdomen, 3 cm above iliac crust with averted margins.

7-A. A firearm entry wound 1 x 1 cm on the right buttock with averted margin going deep.

7-B. A firearm lacerated exit wound 3 x 2.5 cm on the interior aspect of middle of right thigh.

8-A. A firearm lacerated entry wound 8 in number size being 1 x 1 cm each, on the posterior aspect of upper part of right forearm with inverted margins.

8-B. There is a shattered wound 8 cm x 7 cm with fracture of radius and ulna, all the muscles and bones were exposed.

9-A. A firearm entry wound on the front of abdomen with inverted margins in right iliac fossa.

9-B. A firearm lacerated wound 3 x 2.5 cm on the back of right side of midline with averted margins.

10. A firearm lacerated exit wound on back of chest, on right side 2 x 2 cm with averted margins.

After conducting postmortem examination doctor rendered the following opinion:-

“After careful examination of dead body, I was of the opinion that all the injuries were ante mortem caused by firearm. Death had occurred collectively by all the injuries, leading to damage to vital organs, lungs etc. and excessive hemorrhage and shock, which leads to cardiopulmonary failure and death in ordinary course of nature.

Probable time between injury and death was immediate, whereas probable duration between death and postmortem was 11-13 hours.”

On the same day, at about 8.25 a.m., PW-10 conducted postmortem examination on the dead body of Saifullah son of Maula Bakhsh and observed following injuries:–

“1 A firearm entry wound 1 x 1 cm, with inverted margins, with colour of abrasion on right side of chest, in right armpit going deep.

1-B. A firearm lacerated wound 2 x 2.5 cm, on the left side of chest with inverted margins.

1-C. A firearm lacerated entry wound 1 x 1 cm on medial side of left upper arm, on middle part with inverted margins going deep.

1-D A firearm lacerated 1.5 x 1.5 cm, on the lower 1/3 of upper arm, 10 cm about olecranian process of ulna, this is exit wound with averted margins.

2. A firearm entry lacerated wound on right side of abdomen, right iliac fossa with averted margins going deep, which was entry wound of 1 x 1 cm.

3-A. A firearm lacerated entry wound 3 x 2 cm on the left buttock going deep with inverted margins.

3-B. A firearm lacerated exit wound 4 x 3 cm on outer aspect of left thigh with averted margins 20 cm from left iliac fossa.

4-A. A firearm lacerated entry wound 2 x 2 cm, on buttock with inverted margins going deep.

4-B. A firearm lacerated exit wound with averted margins on medial side of right upper thigh, 4 x 3 cm.

5. A firearm lacerated entry wound 4 x 3 cm, on the outer aspect of lower 1/3 of left thigh going deep.

6-A. A firearm lacerated entry wound .5 x .5 cm with inverted margins in front of right knee going deep.

6-B. A firearm lacerated exit wound 1.5 x 1.5 cm with averted margins on medial side of right knee.

7 A firearm entry exit wound 1.5 x 1.5 cm, in front of lower leg 5 cm below left knee.

After conducting postmortem examination doctor rendered the following opinion:–

“After careful examination of dead body, I was of the opinion that all the injuries were ante mortem caused by firearm. Death had occurred collectively by all the injuries, leading to damage to vital organs, lungs etc and excessive hemorrhage and shock, which leads to cardiopulmonary failure and death in ordinary course of nature. Injuries Nos.1-A and 1-b are individually fatal in ordinary course of nature of death.

Probable time between injury and death was immediate, whereas probable duration between death and postmortem was 12-14 hours.”

On the same day, at about 9.30 a. m, doctor conducted postmortem examination on the dead body of Muhammad Anar son of Jalal Akbar and observed following injuries.–

“1. A firearm lacerated entry wound 2 x 1 cm, on occipital region, left side of head with inverted margins going deep.

2. A firearm lacerated entry wound on left side of perital region going deep.

3. A firearm lacerated entry wound 1 cm x 1 cm on the back of left ear with inverted margins going deep.

4. A firearm lacerated entry wound 3 in number, with inverted margins below left ear in a line anteroposterior in between distance of wound is 3 cm going deep.

5. A firearm lacerated shattered exit wound 15 cm x 20 cm with deformed skull and face on right side, brain matter pouring out.

6-A. A firearm lacerated wound 1 x 1 cm on back of chest just above left scapula going deep with inverted margins.

6-B. A firearm lacerated exit wound 6 x 3 cm, in front of right shoulder with averted margins.

7-A. A firearm lacerated entry wound 1 x 1 cm with inverted margins on back of chest, medial to left scapula going deep.

7-B. A firearm lacerated exit wound 3 x 3 cm, in front of right side of chest 6 cm above right nipple with averted margins.

8-A. A firearm lacerated wound 1 x 1 cm, going deep with inverted margins below left scapula.

8-B. A firearm lacerated exit wound 3 x 3 cm, with inverted margins on outside of right chest in armpit.

8-C. A firearm lacerated wound 1.5 x 1.5 cm, with inverted margins on medial side of right arm at the level of injury No.8-B going deep.

8-D. A firearm lacerated exit wound 2.5 x 2.5 with inverted margins in front of right upper arm.

9-A. A firearm lacerated entry wound 1 x 1 cm, going deep with inverted margins, lateral to left scapula on lower part.

9-B. A firearm lacerated exit wound 2.5 x 2.5 cm with averted margins 2 cm lateral to injury No. 7-B, in front of right side chest.

10-A. A firearm lacerated entry wound 1.5 x 1.5 cm with inverted margins going deep on back of upper part of left thigh.

10-B. A firearm lacerated exit, wound 3 x 3 cm with inverted margins on medial side of left thigh, on upper part.

11&12. Two firearms lacerated wounds 1 x 1 cm each, going deep with inverted margins between distance is 2 cm on back of left thigh.

13. A firearm lacerated entry wound 4 x 4 cm on antero medial side of left thigh with inverted margins.

14-A. A firearm lacerated entry wound 3 x 2 cm, on lower part in front of neck going deep 7 x 5 cm on outer aspect of left armpit with averted margins.

15. A firearm lacerated wound 7 x 5 cm on medial and back of right writ with fracture of underline bone and joint open.

16. A firearm lacerated entry wound at right little finger with fracture, only stump of skin present.

After conducting postmortem examination doctor rendered the following opinion:–

“After careful examination of dead body, I was of the opinion that all the injuries were ante motion caused by firearm. Death had occurred collectively by all the injuries, leading to damage to vital organs, lungs etc and excessive haemorrhage and shock, which leads to cardiopulmonary failure and death in ordinary course of nature.

Probable time between injury and death was immediate, whereas probable duration between death and postmortem was 13-15 hours.”

Statements of rest of the prosecution witnesses are formal in nature.

7. Vide his statement recorded on 23.10.2013 learned DDPP gave up Rizwan Faisal No.869/C, PW, being unnecessary whereas learned counsel for the complainant vide his statement recorded on 26.04.2014 gave up Taimoor, Ejaz, Tanveer Abbas, Nassar Iqbal, Muhammad Afzal, Mirza, Waqar Hussain Pigs being un-necessary and also gave up Anar son of Hayat being won over by the accused and Mahroof constable being unavailable having proceeded abroad. On 30.04.2014 after tendering in evidence report of Chemical Examiner (Exh.PZ), report of Serologist (Exh.PZ/1) and report of Forensic Science Laboratory (Exh.PZ/2) learned ADPP closed the prosecution evidence.

8. The appellants were examined under Section 342, Cr.P.C. wherein they refuted the accusations levelled against them in the prosecution evidence. While replying to the question why this case against him and why the PWs deposed against him, Muhammad Aslam, appellant, made the following deposition:-

“This case has falsely been registered against me, due to previous enmity. Complainant and PWs are inimical to me since long and they have made false statements in this case and involved me in this case just to pressurize and to affect compromise in case FIR No.278/09 under section 302, P.P.C., in which brother of the complainant has already been awarded death sentence.”

Iftikhar Ahmad, appellant, while replying to this specific question stated as under:-

“This case has falsely been registered against me, due to previous enmity. In fact I was not present at the time of alleged occurrence; rather I was present in marriage ceremony at Chak No.22 of Malikwal, on the day of occurrence. PWs deposed falsely against me.”

While replying to this specific question Muhammad Afzal made the following deposition:-

“In fact I was not present at the spot at the time of occurrence, rather I was present in Islamabad on my duty as constable and my non presence at the spot was also verified by CW-2 during investigation and also admitted by complainant before him. I have falsely been implicated in this case due to old enmity.”

Gulzar Ahmad, appellant, while replying to the question why this case against him and why the PWs deposed against him, stated as under:-

“This case has falsely been registered against me, due to previous enmity. In fact I was witness in case FIR No.278/09 under section 302, P.P.C., in which brother of complainant has already been awarded death sentence and to effect compromise in above said case, he has falsely been implicated in his case. PWs deposed falsely against me.”

9. Learned trial court after evaluating the evidence available on record found version of the prosecution proved beyond shadow of reasonable doubt against the appellants resulting into their conviction in the afore-stated terms.

10. Learned counsel for the appellants while advancing his arguments submitted that the impugned judgment has been recorded by the learned trial court in a slipshod manner without adverting to real facts of the case and material available on record. Learned counsel contended that story advanced by the prosecution in the crime report does not appeal to reason. It was vehemently argued that presence of the prosecution witnesses at the place of occurrence at the relevant time is highly doubtful. Had they been present over there, the accused having same degree of animosity against them must have treated them in the same manner. Main crux of arguments of learned counsel for the appellants is that during the course of investigation the version contained in the crime report was smashed as except Muhammad Aslam appellant, rest of the accused appellants were found innocent. So much so the Investigating Officer stated that he came to know on wireless message that two unknown accused persons had committed murder of four persons while the complainant and other prosecution witnesses reached at the place of occurrence after his arrival over there. Learned counsel vigorously contended that the medical evidence does not support the prosecution version on minute details. Further argued that due to previous enmity over murders between the parties while spreading wider-net the complainant involved number of accused. Moreover, during the course of investigation nothing was recovered from Iftikhar Ahmed, Muhammad Afzal and Gulzar Ahmed, appellants. As far as recovery of gun allegedly affected from Muhammad Aslam appellant is concerned, it was argued that the report of Forensic Science Laboratory in this regard is negative. It was further argued that during the course of trial nine accused were acquitted of the charge on the same set of evidence. Finally contended that as the prosecution case against the appellants is pregnant with material discrepancies/ doubts, therefore, the impugned conviction and sentence recorded by the learned trial court is not sustainable in the eyes of law, hence they are entitled to their clean acquittal of the charges.

11. Conversely learned Deputy Prosecutor General assisted by learned counsel for the complainant vehemently opposed the contentions raised by learned counsel for the appellants. It was argued that it is a heinous occurrence in which four innocent persons were done to death while the appellants are duly named in the promptly lodged FIR with their specific role. Further contended that the prosecution through adducing evidence of most natural witnesses established its case. Both the prosecution witnesses of the occular account viz. Ghulam Abbas (PW-11)/complainant and Muhammad Walayat (PW-13) gave true pen-picture of the occurrence and despite lengthy cross-examination nothing adverse to the prosecution version could be brought on record. Learned counsel for the complainant contended that medical evidence is in line with the occular account. It was argued that the appellants had committed the occurrence with strong motive of previous enmity. It was argued that there was no reason with the prosecution witnesses to falsely involve/ substitute the appellants in place of real culprits. Learned Law Officer contended that during the course of investigation gun was recovered from Muhammad Aslam, appellant. Moreover; rifle of Muhammad Anar, deceased, taken away from the place of occurrence was also recovered from him. Further submitted that as the investigation was not conducted in a transparent manner, therefore, the complainant opted to file private complaint. It was finally argued that keeping in view the tenor of evidence brought forth on record, the learned trial court was rightly justified in recording conviction against the appellants.

12. While arguing PSLA No.114/ 2014, learned counsel for the petitioner/ complainant stated that the prosecution also ably established its case against Mst. Razia Begum, Fazal, Muhammad Aslam son of Ghulam Muhammad, Ghulam Haider and Mst. Azhra/respondents through adducing independent and confidence inspiring evidence and the reasons advanced by the learned trial court while recording their acquittal are against the dictates of justice, therefore, they are liable to be dealt with in accordance with law.

13. Arguments advanced pro and contra have been heard. We have also minutely gone through the record available on file with the able assistance of learned counsel for the parties.

14. It is an established principle of law that each criminal case has its own peculiar facts and circumstances and the same seldom coincide with each other on salient aspects. As per prosecution version the occurrence in the instant case had taken place on 08.08.2010 at 7:30 p.m. while the same was reported to the police at 9:20 p.m. whereas inter se distance between the place of occurrence and the police station is 13-KMs. It is an unfortunate incident in which four persons were done to death in a brutal manner while resorting to indiscriminate firing. As far as the appellants are concerned they have been ascribed the role of firing, which ultimately resulted into death of four innocent persons. In order to substantiate its case the prosecution has led evidence qua occular account, medical evidence, motive, abetment, recovery of gun from Muhammad Aslam appellant, investigation, as well as, reports of Chemical Examiner and Serologist.

15. As far as occular account in this case is concerned that is coming from the mouth of Ghulam Abbas (PW-11)/ complainant and Muhammad Walayat (PW-B). Claim of both the prosecution witnesses of the occular account is that they were present at the spot and they have seen the assailants while resorting to indiscriminate firing resulting into instantaneous death of all the four deceased. There is no denial to this fact that both the prosecution witnesses of the occular account are related to the deceased as complainant is real brother of Muhammad Anar deceased while he is son of Jalal Akbar, deceased whereas Muhammad Wallayat (PW-13) is real brother of Jalal Akbar deceased. In such like cases where the occular account is coming from a source, which is interested, related and biased, independent corroboration is always deemed essential for taking it into consideration. Even otherwise while going through the material available on record minutely we have noticed that it is a case which is hit by salutary principle of law: “sifting the grain from the chaff’ as such the evidence led by the prosecution has to be evaluated keeping in view the above principle especially when none of the persons from the locality where the occurrence had taken place except the prosecution witnesses, has joined investigation before the Investigating Officer or appeared during the course of trial in support of the prosecution version. To evaluate the prosecution version as an abundant caution we have noticed certain aspects, which make the case of Iftikhar Ahmed, Muhammad Afzal and Gulzar Ahmed, appellants distinguishable from Muhammad Aslam appellant. They have been assigned the role of generalized nature of causing fire-arm injuries while Muhammad Aslam, appellant has been ascribed specific role of inflicting injury on the person of falai Akbar/father of the complainant whereas certain circumstances reveal that the prosecution witnesses could not establish the case qua all the appellants on equal footing.

16. As far as the case of Iftikhar Ahmed, Muhammad Afzal and Gulzar Ahmed, appellants is concerned although they were named in the FIR with the generalized role of making fire shots upon the deceased persons, however, during the Course of investigation they took specific plea that they were not present at the place of occurrence at the relevant time. Number of persons had appeared during the course of investigation in support of plea of alibi taken by Iftikhar Ahmed, Muhammad Afzal and Gulzar Ahmed, appellants, which was accepted by the Investigating Officer and even their arrest was deferred. This fact was admitted by the Investigating Officer while making his statement during the course of trial in the following terms:-

“So many people appeared before me in support of accused persons stating that accused have falsely been implicated in this case and they are innocent. Thereafter I found the evidence of the complainant against accused persons insufficient and deferred the arrest of above mentioned accused.”

Even names of Iftikhar Ahmed, Muhammad Afzal and Gulzar Ahmed, appellants were placed in column No.2 of the report prepared under Section 173, Cr.P.C., which fact was further admitted by the Investigating Officer while making his statement during the course of trial. Further no recovery of any sort of weapon was affected from Iftikhar Ahmed, Muhammad Afzal and Gulzar Ahmed, appellants. The investigation conducted by Riaz Hussain, S.I. (CW-1) was further verified/authenticated by Shoukat Hayat, S.P. (CW-2) to the extent of present appellants. Hence keeping in view all the facts and circumstances and putting it in juxtaposition with other independent circumstances, this Court is of the considered that the case of Iftikhar Ahmed, Muhammad Afzal and Gulzar Ahmed, appellants, is squarely distinguishable from the case of Muhammad Aslam appellant. Hence, statements of both the prosecution witnesses of the occular account are discarded to the extent of Iftikhar Ahmed, Muhammad Afzal and Gulzar Ahmed, appellants.

17. Moreover, while going through the record we have observed that although motive of previous enmity over murders has been alleged against the accused, however, during the course of trial it came to limelight that Zafar Iqbal brother of the complainant was involved in a murder case of Muhammad Ashraf brother of Muhammad Aslam appellant; wherein he was sentenced to death. Hence, the motive was not against the present appellants. Similarly the prosecution had failed to substantiate the prosecution version with regard to abetment, which was discarded by the learned trial court. There is no second cavil to this proposition that while spreading wider-net, fourteen accused persons were named including two women folk. However, during the course of investigation, thirteen accused including the appellants before us were found innocent. All these facts and circumstances when taken into consideration possibility cannot be ruled out that Iftikhar Ahmed, Muhammad Afzal and Gulzar Ahmed; appellants were brought in this case while spreading wider-net. Moreover, on the same set of evidence Mst. Razia Begum, Fazal Ahmed, Muhammad Islam, Ghulam Haider, Mst. Azhra, co-accused were acquitted of the charge. Moreover, there is no allegation against Iftikhar Ahmed, Muhammad Afzal and Gulzar Ahmed, appellants qua making firing upon the cattle-head, which may constitute an offence under Section 429, P.P.C.

18. All the above narrated facts and circumstances create reasonable doubt regarding the culpability of Iftikhar Ahmed, Muhammad Afzal and Gulzar Ahmed; appellants in this case. It is established principle of law that for extending the benefit of doubt in favour of the accused, so many circumstances are not required, rather one circumstance which creates reasonable dent in the veracity of the prosecution version, can be taken into consideration for the purpose, not as a matter of grace, rather as a matter of right. Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the cases of “Tariq Pervez v. The State” (1995 SCMR 1345) “Riaz Masih alias Mithoo v. The State” (1995 SCMR 1730) and “Muhammad Akram v. The State (2009 SCMR 230). In the case of “Tariq Pervez v. The State” (1995 SCMR 1345), the august Supreme Court of Pakistan has held as under:–

“—Art.4—Benefit of doubt, grant of—Forgiving benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubts—If a simple circumstance creates reasonable doubt in a prudent mind about the guilt of accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right”.

19. From the facts and circumstances narrated above, we are persuaded to hold that prosecution has badly failed to substantiate its case against Ifikhar Ahmed, Muhammad Afzal and Gulzar Ahmed; appellants as a consequence whereof conviction passed by the learned trial court against them in the circumstances is against all cannons of law recognized for the safe dispensation of criminal justice. As per dictates of law benefit of every doubt is to be extended in favour of the accused. Moreover, it is golden principle of law that the Court may err in letting off 100 guilty but should not convict one innocent person on the basis of suspicion. Resultantly while setting aside the conviction and sentence recorded by the learned trial court in terms of judgment dated 06.05.2014 to the extent of Ifiikhar Ahmed, Muhammad Afzal and Gulzar Ahmed; appellants Crl. Appeal No.915/2014 is partly accepted. Consequently Iftikhar Ahmed, Muhammad Afzal and Gulzar Ahmed; appellants are ordered to be acquitted of the charge and they are directed to be released forthwith if not required in any other case.

20. Now we take up the case of Muhammad Aslam, appellant, who according to prosecution version was saddled with the role of making a fire shot with gun .12-bore on the person of Jalal Akbar deceased and subsequent to his arrest, gun . 12-bore was recovered on his pointing out. The medical evidence further reveals that the dimension of injuries on the person of Muhammad Jalal deceased reflects that the same has been caused with a weapon having caliber of .12-bore, which commensurates with the recovery from Muhammad Aslam, appellant. Moreover, during the course of investigation, Investigating Officer opined that it was talk of the town that Muhammad Aslam appellant along with one unknown accused had committed the occurrence. Relevant extract out of his statement is reproduced as under:–

“It was talk of the town that unknown person was also present with Aslam accused during the occurrence.”

Admittedly such findings of Investigating Officer were not challenged by the appellant before any forum.

21. As far as occular account to the extent of Muhammad Aslam appellant is concerned, the same seems to be straight-forward, which has been substantiated in the manner inspiring confidence qua his participation in the instant occurrence. Both the prosecution witnesses of the occular account remained consistent that Muhammad Aslam appellant had made fire shot upon Jalal Akbar deceased and there is nothing on record which may persuade this Court to discard their statements to his extent. Dimension of injury on the person of Jalal Akbar deceased coupled with recovery of gun .12-bore further establishes his link with the occurrence. Hence, keeping in view the afore-stated facts and circumstances statements of both the prosecution witnesses of the occular account to the extent of Muhammad Aslam appellant seem to be reasonable, trustworthy and confidence inspiring.

22. Fact also remains that at the time of spot inspection the Investigating Officer had collected blood-stained earth where Jalal Akbar, deceased had received injuries, which was dispatched to the offices of Chemical Examiner and Serologist and according to respective reports of the concerned quarter (Exh.PZ and Exh.PZ/1), its origin was detected as human blood.

23. For the foregoing reasons we have been persuaded to hold that the prosecution has succeeded in bringing home guilt against Muhammad Aslant appellant through reliable, trust-worthy, substantive evidence on the record, which in other words is unshaken and confidence inspiring.

24. The learned trial court while adjudicating the matter has inflicted sentence of death on four counts upon Muhammad Aslam, appellant, however, while going through the record available on file we have noticed that in the crime report the appellant has been ascribed the role of single fire shot upon Jalal Akbar and he has not been ascribed any fire shot on rest of the deceased. Fact also remains that although gun .12-bore is stated to have been recovered from Muhammad Aslam appellant during the course of investigation, however, report of Forensic Science Laboratory (Exh.PZ/2) is negative. Both these facts when taken into consideration, we are of the considered view that case of Muhammad Aslam appellant falls within the ambit of mitigation. Guidance in this regard is sought from the ratio decidendi laid down by the august Supreme Court of Pakistan in the case of Muhammad Riaz and another v. The State and another (2007 SCMR 1413); wherein it was held as under:-

“No doubt normal penalty for an act of commission of Qatl-i-Amd provided under law is death, but since life imprisonment also being a legal sentence for such offence must be kept in mind wherever the facts and circumstances warrant mitigation of sentence, because no hard and fast rule can be applied in each and every case.”

Similar view was affirmed in the case of Muhammad Sharif v. The State (PLD 2009 Supreme Court 709); wherein it was held as under: –

“It has been seen and observed from the perusal of the various proceedings in relation to section 302 of P.P.C. in particular its clause (b), that there is a choice and discretion left with the Court to inflict punishment “with death or imprisonment for life as tazir having regard to the facts and circumstances of the case.”

25. For the foregoing reasons, Crl. Appeal No.915/2014 to the extent of Muhammad Aslam/appellant is dismissed. However, keeping in view fact that he has been assigned single fire shot on the person of Jalal Akbar deceased coupled with the fact that while adjudicating the prosecution case to the extent of rest of the appellants in the preceding paragraphs we have discarded the prosecution evidence to their extent, hence in our humble view the provisions of Sections 148/149, P.P.C., are not attracted in this case, therefore, for the safe administration of criminal justice it would be justified if sentence of death on four counts inflicted upon Muhammad Aslam appellant is converted into imprisonment for life on one count under Section 302(b), P.P.C. as Ta’zir. However, the burden of compensation in terms of Section 544-A, Cr.P.C. as imposed by the learned trial court and the effect in failure thereof, shall remain intact. Benefit of Section 382-B, Cr.P.C. is also extended in favour of Muhammad Aslam, appellant. As far as provisions of Section 429, P.P.C., are concerned, perusal of record available on file reflects that there is no allegation against Muhammad Aslam appellant for making firing upon the cattle-head, therefore, in absence of any cogent evidence available on record against Muhammad Aslam appellant on this score, he is acquitted of the charge under the provisions of Section 429, P.P.C.

26. Now the question arises what would be the fate of Zafar Iqbal/convict, who slipped away at the time of pronouncement of the judgment and is still fugitive from law and the reference in this regard forwarded by the learned trial court is pending before this Court. We may observe here that while exercising suo motu revisional jurisdiction in terms of Sections 435/439, Cr.P.C. this Court is empowered to examine the record and thereafter pass an appropriate order. This Court has examined the reference submitted by the learned trial court and also evaluated the whole record with the assistance of learned counsel for the parties. Admittedly the case of Zafar Iqbal/convict is on equal footing with that of co-convicts Iftikhar Ahmed, Muhammad Afzal and Gulzar Ahmed as he has also been ascribed the role of generalized nature. Moreover, during the course of investigation he took the plea of alibi, which was accepted by the Investigating Officer and not only his arrest was deferred rather having been found innocent, Investigating Officer placed his name in column No.2 of the report prepared under Section 173, Cr.P.C. It is also an admitted fact that motive was not alleged against Zafar Iqbal/convict. Hence, it can safely be held that the prosecution had also badly failed to bring an iota of evidence inspiring confidence against the convict to link him with the commission of offence. In view of facts and circumstances floating on the record referred to above coupled with the reasons given in the preceding paragraphs regarding acquittal of Iflikhar Ahmed, Muhammad Afzal and Gulzar Ahmed, appellants, this Court is of the considered view that no case of conviction against Zafar Iqbal/convict, who had not preferred appeal against his conviction and sentence recorded by the learned trial court, is made out and deeming it a fit case to exercise suo motu revisional jurisdiction while following the dictates of law laid down in the cases of Muhammad Ashiq Faqir v. The State (PLD 1970 Supreme Court 177), Muhammad Aslam and 5 others v. The State (1972 SCMR 194), Amin Ali and another v. The State (2011 SCMR 323), Muhammad Kassim v. Abdul Hamid Khan and others (PLD 1966 [W.P.] Karachi 331), Gauhra v. The State (1968 PCr.LJ 1118) and The State v. Muhammad Saleem and another (1985 PCr.LJ 960), we have been persuaded to acquit him of the charge.

27. As far as perpetual warrants of arrest issued against Zafar lqbal/convict by the learned trial court while announcing the impugned judgment are concerned, for the foregoing reasons, the same are ordered to be set aside. Office is directed to convey the order of this Court to the SHO of concerned Police Station through District Police Officer, Mandi Baha-ud-Din, in this regard.

28. Murder Reference No.204/2014 forwarded by the learned trial court in terms of Section 374, Cr.P.C. for confirmation of death sentence inflicted upon the convicts is answered in NEGATIVE. Death sentence is NOT CONFIRMED.

29. As far as PSLA No.114/2014 seeking leave to appeal against acquittal of Mst. Razia Begum, Fazal Ahmed, Muhammad Aslam, Ghulam Haider, Mst. Azhra is concerned, for the afore-stated we do not find any compelling circumstance warranting interference in the conclusion already drawn by the learned trial court. Therefore, the same being devoid of legal justification hereby stands dismissed. Resultantly leave to appeal is refused.

JK/M-3/L Order accordingly.

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