PLJ 2010 Cr.C. (
[
Present: Mazhar Iqbal Sidhu and
Muhammad Qasam Khan, JJ.
ABDUL HAMEED etc.--Appellants
versus
STATE--Respondent
Crl. Appeal No. 65 of 2005, M.R.
No. 11 of 2005, heard on 25.3.2010.
----Ss. 302(b)--Conviction and
sentence recorded against appellant by trial Court--Challenge to--Benefit of
doubt--Medical contradiction is irreconcilable with ocular account and has
created big doubt in the prosecution version--Co-accused whom same role was
attributed has been acquitted by trial Court--Court do not believe the
prosecution evidence to the extent of appellant as there was no independent
corroboration against him and as the appellant did not cause any injury to the
deceased during the entire occurrence, therefore, by extending them benefit of
doubt, appeal accepted--Conviction and sentence set aside. [P. 889] A
Mr. Sadiq Mehmood Khurram Malik,
Advocate for Appellants.
Mr. Abdul Sattar Zafar, Advocate
for Complainant.
Ch. Haq Nawaz, D.D.P.P. for State.
Date of hearing: 25.3.2010.
Judgment
Mazhar Iqbal Sidhu, J.--This
judgment will dispose of Criminal Appeal No. 65/2005 filed by Abdul Hameed and
Kaleem Ullah appellants who were convicted and sentenced by learned Addl.
Sessions Judge, Bahawalnagar vide impugned judgment dated 26-02-2005. Following
conviction and sentences were imposed on the appellants:--
ABDUL HAMEED APPELLANT
Death under Section 302(b) PPC and
a of fine Rs. 1,50,000/-, same shall be received by the legal heirs of the
deceased and in default thereof to further undergo R.I. for two years.
KALEEM ULLAH APPELLANT
Life imprisonment under Section 302(b)/34
PPC and a fine of Rs. 25,000/, in default thereof to further undergo R.I for
one year with benefit of Section 382-B of Cr.P.C.
Murder Reference No. 11 of 2005 for
confirmation of Death sentence of Abdul Hameed appellant or otherwise and
Criminal Appeal No. 93 of 2005 filed by Abdul Ghani against the acquittal of
Muhammad Jafar etc. being emanated from the same impugned judgment shall also
be disposed of through this single judgment.
2.
The prosecution case as disclosed by Abdul Ghani complainant (PW-9) is
that his land is situated near Killa No.21 of Rectangle No. 222/6, Mauza
Dogarwala. The said Killa is a state land. Their land is irrigated from the
watercourse which is situated on western side of Killa No.21. Abdul Hamid's
land is situated in Killa No.20 Rect. No.222/6 which is also irrigated through
same watercourse. The accused Abdul Hameed etc. used to demolish the
watercourse and waste their water. About 09-1/2 months ago i.e. on the date of
occurrence i.e. 24.3.2009 at about 7.00 p.m. he along with Muhammad Mumtaz was
present at the said watercourse, Abdul Hameed, Muhammad Jafar, Kaleem Ullah, he
again stated that at 7.00 a.m. Abdul Hamid appellant alone came. They asked him
about the demolishing of water course. He abused them. Muhammad Mumtaz deceased
also abused in retaliation. The said Abdul Hameed went away imparting threats
of dire consequences. At about 9.00 a.m., on the same day, he along with
Muhammad Mumtaz deceased, Liaqat Ali and Muhammad Saeed was present at the
spot. Abdul Hameed appellant, Muhammad Jafar accused (since acquitted) armed
with rifles, Kaleem Ullah appellant being a tractor driver on one tractor and
on the other tractor Irshad Ali armed with rifle, Qasim Ali armed with Gun,
Maqsood armed with Soti, Shafique armed with hatchet alongwith Amjad tractor
driver came on the spot Irshad Ali and Qasim raised lalkara to murder Mumtaz
deceased. Abdul Hameed made first fire shot which hit on the left hip of Mumtaz
deceased. Second fire was caused by Muhammad Jafar which also hit on the left
hip of Muhammad Mumtaz deceased. The other co-accused made aerial firing.
Mumtaz deceased fell on the ground. The occurrence was seen by the witnesses
Muhammad Saeed (given up PW) and Liaqat Ali including complainant. The accused
fled away from the spot. The complainant and PWs took the deceased to Rural
Health Centre, Mandi Sadiq Gunj in an injured condition. The police came in the
RHC Mandi Sadiq Gunj and recorded his statement Exh. PE and he signed the same
in token of its correctness. His brother Mumtaz who was in injured condition
was referred to DHQ hospital, Bahawalnagar where he died. They took the dead
body of deceased Mumtaz back to RHC Mandi Sadiq Gunj.
3.
Prior to the death of deceased, on receipt of information of occurrence,
Ghulam Rasool ASI at 11.30 a.m. went to RHC Mandi Sadiq Gunj where Mumtaz
injured was present. He prepared a docket for his medical examination Exh.PA/1
and handed over it to M.O. for his medical examination. The injured was
unconscious at that time. He inquired from Medical Officer through application
Exh.PA/1 as to whether the injured was fit to make statement or not and the
doctor opined that injured was not fit to make statement being unconscious.
After that he recorded the statement of Abdul Ghani complainant Exh.PE and sent
it to police station for registration of formal FIR. The injured later on was
referred to
4.
At the trial the prosecution in order to prove its case produced 12
witnesses in all. Learned DDA Vide his statement dated 11.12.2004 renounced PWs
namely Jafar Hussain 1122/C and Muhammad Ismail as being unnecessary. He again
vide his statement dated 29.1.2005 on written application of complainant gave
up Muhammad Saeed and Abdul Majid as being unnecessary, hereafter, learned DDA
after tendering in evidence report of Chemical Examiner Exh.PL and that of
Serologist Exh.PM and report of Forensic Science Laboratory, Exh.PN, closed the
prosecution case. Then the statements of the accused were recorded under
Section 342 Cr.P.C wherein they professed their innocence and they also opted
to produce defence evidence. The accused-persons by examining Abdul Hafeez
DSP/PTS,
5.
At the opening of arguments, learned counsel for appellants has
contended that co-accused Jafar was acquitted by the learned trial Court and on
the same evidence conviction and sentence of appellant Abdul Hameed cannot be
sustained. Learned counsel has argued that there is no independent
corroboration from any source against Abdul Hameed appellant, therefore, he is
entitled for same relief which had already been extended to Muhammad Jafar
co-accused. Learned counsel has submitted that post-mortem report does not
support the ocular version in its entirety. Learned counsel with reference to
the post-mortem examination report of the deceased has argued that tracks of
the injuries of the deceased have been shown by the doctor from downward to
upward whereas case of the prosecution is that the appellant Abdul Hameed
alongwith his co-accused as well as the deceased were standing on equal
pedestal at the time of occurrence when firing was made at the deceased
Muhammad Mumtaz. It has been argued that this medical contradiction cannot be
reconciled by the ocular account. Learned counsel has referred to certain
portions of the statements of the eye-witnesses in which PWs have tried to
improve upon their statements in order to make their evidence in line with the
medical evidence. Learned counsel to the extent of Kaleem Ullah has argued that
Kaleem Ullah did not cause any injury to the deceased, therefore, it is a case
of no evidence to his extent. Learned counsel for appellants has submitted that
prosecution case is highly doubtful and nobody has seen incident, therefore,
appeal may be accepted and both the appellants may be acquitted.
6.
Learned DDPP assisted by learned counsel for complainant has vehemently
opposed the contentions of learned counsel for appellants on the grounds that
occurrence had taken place in the day light, parties were known to each other
prior to the occurrence, matter was reported to the police without any loss of
time and there is no conflict in between the ocular account and the medical
evidence. It has been argued that nobody can judge the posture of an under attacked
person. Learned counsel on behalf of the complainant has argued that
irregularities or some minor discrepancies occurred during investigation or in
statements of the PWs may not be considered sufficient to provide benefit of
doubt to the appellants. Eye-witnesses have supported the prosecution version;
therefore, appeal of the appellants may be dismissed.
7.
We have heard learned counsel for parties and have also minutely gone
through the record.
8.
We have taken very much care in going through the MLR Exh.PA of Muhammad
Mumtaz as well as his post-mortem examination report Exh,PB and
cross-examination on doctor Muhammad Sharif PW.1 who examined Muhammad Mumtaz
deceased while in an injured condition on 24.3.2004 at about 11.00 a.m. and
found following injuries:--
INJURY NO. 1.
An oblique wound with inverted
margin on lateral size of upper third of left thigh measuring 5 cm x 2 cm.
Wound track was leading upward into abdomen. Abdomen was distended. This was
entry would of fire-arm weapon.
INJURY NO. 2.
An oblique wound with inverted
margin on front of upper third of left thigh near Injury No.1 measuring 4 cm X
2 cm. Wound track was leading upward to abdomen. This was also entry wound of
fire-arm weapon. These injuries were dangerous to life. These injuries were
K.U.O for X-Rays. The duration of these injuries was within 6 to 8 hours. All
injuries were caused with fire-arm weapon.
The same doctor after his death
performed post-mortem examination on 24.3.2004 at 5.00 p.m. and found following
injuries:--
INJURY NO. 1
An oblique wound on lateral side of
upper third of left thigh with inverted margin measuring 5 cm x 2 cm wound
track was leading upward into abdomen. There was corresponding holes in Shalwar
and Qameez at the side of the wound. On exploration of abdomen, the abdominal
cavities were full of blood. Small and large intestines were injured at
different sides. Left aliac vessel and aorta was also damaged. About 05 liters
of blood was recovered from abdomen. One piece of bullet recovered from
abdomen.
INJURY NO. 2
An oblique wound with inverted
margin on front of upper third of left side measuring 4 cm x 2 cm. Wound track
was leading upward into abdomen. This was entry wound of fire-arm bullet. There
were corresponding holes in Shalwar and Qameez.
9.
In both the documents i.e. medico-legal report and post-mortem report we
have carefully observed that tracks of the inverted injuries on the person of
Muhammad Mumtaz deceased have been shown from downward to upward. In this
context we have gone through the contents of FIR, examination in chief of the
eye-witnesses, site-plan prepared by the I.O. without scale Exh.PH and also
scaled site-plan Exh.PF and Exh.PF/1 prepared by PW.7 Muhammad Saeed Rana
drafts man and have found that at the time of occurrence deceased as well as
appellants alongwith their co-accused were standing on the same level. During
cross-examination the doctor has categorically answered as under:
"It is correct that if
assailants and victim are standing on ground and fired is made straight towards
the victim, nature of the tracks present in this case is impossible. It is also
correct that if assailant is on higher level and the victim is on lower level,
the injury and track which is present in this case is not possible".
10.
Thus medical contradiction is irreconcilable with ocular account and has
created big doubt in the prosecution version, it is also noteworthy that
Muhammad Jafar co-accused whom same role was attributed, has been acquitted by
the learned trial Court, therefore we do not believe the prosecution evidence
to the extent of Abdul Hameed appellant as there is no Independent
corroboration against him and as the appellant Kaleem Ullah did not cause any
injury to the deceased during the entire occurrence therefore, by extending them
benefit of doubt, their appeal is accepted, consequently conviction and
sentence of the appellants is set aside; appellant Abdul Hameed is in jail,
therefore, he is ordered to be released from jail forthwith if he is not
required in any other case. Since sentence of appellant Kaleem Ullah has been
suspended by this Court vide order dated 2.11.2005 and he was released on bail
subject to furnishing two sureties, so his sureties stand discharged from their
liabilities. Murder reference is answered in negative. Criminal Appeal No. 93
of 2005 is also dismissed as we have accepted the appeal of the
convicts/appellants. Case property shall be disposed of in accordance with law.
The record of the trial Court shall be remitted immediately.
(A.S.) Appeal
accepted.