The court acquitted 302 accused due to insufficient evidence and doubts in the prosecution's case.
he prosecution failed due to unclear motive, inconsistent witness testimonies, doubts about the dying declaration, insufficient evidence, and benefit of doubt given to the accused.
The prosecution failed to prove its case against Haq Nawaz for several reasons:
1. **Motive:**
- The court found discrepancies in establishing a motive against Haq Nawaz. Despite allegations of animosity between the complainant party and certain individuals, including Irfan and Munawar, there was no clear evidence linking Haq Nawaz to the motive for the crime.
2. **Inconsistencies in Witness Testimonies:**
- There were inconsistencies between the witness testimonies and medical evidence. The court noted discrepancies in the ocular account and the medical examination, particularly regarding the nature and location of the gunshot wound inflicted on the deceased.
3. **Doubts Regarding Dying Declaration:**
- The court scrutinized the alleged dying declaration of the deceased and found lapses in its documentation and verification. The absence of proper procedures for recording and verifying the statement raised doubts about its reliability as evidence against Haq Nawaz.
4. **Insufficient Evidence:**
- The prosecution failed to provide conclusive evidence linking Haq Nawaz directly to the commission of the crime. The recovery of the alleged murder weapon did not yield conclusive proof, and the ballistic analysis did not match the empties recovered from the scene with the recovered pistol.
5. **Benefit of Doubt:**
- Considering the inconsistencies and gaps in the prosecution's case, the court applied the principle that if there is any doubt regarding the prosecution's case, the benefit of doubt should be given to the accused. In this case, the court found multiple circumstances that created serious doubts about the prosecution's story, leading to the acquittal of Haq Nawaz.
The court, after considering all aspects of the case, including witness testimonies, medical evidence, and the alleged dying declaration of the deceased, concluded that the prosecution failed to prove its case beyond a reasonable doubt against Haq Nawaz. As a result, the Lahore High Court accepted the Criminal Appeal No. 29448-J of 2022 filed by Haq Nawaz, set aside his conviction and sentence, and acquitted him of the charge. The court ordered Haq Nawaz's immediate release if not required to be detained in any other case. Additionally, it directed the preservation of case property until the arrest and trial of the co-accused, Liaqat Ali, who was still a proclaimed offender in the case.
C J D A 38.
JUDGMENT SHEET
IN THE LAHORE HIGH COURT, LAHORE
JUDICIAL DEPARTMENT
Criminal Appeal No.29448-J of 2022
(Haq Nawaz vs. The State)
J U D G M E N T
Date of hearing.
22.05.2024
Appellant by:
Mr. A.G. Tariq Chaudhry, Advocate
State by
Mr. Nisar Ahmad Virk, Deputy ProsecutorGeneral with Jafar SI
Complainant by
Mr. Ali Raza Khokhar, Advocate
Malik Shahzad Ahmad Khan, C.J:- This judgment shall dispose
of Criminal Appeal No.29448-J of 2022, filed by Haq Nawaz (appellant)
against his conviction and sentence. Haq Nawaz (appellant) along with
Shafique alias Rembo (co-accused since acquitted) and Shafaqat alias
Basharat (co-accused since acquitted), was tried in case F.I.R. No.460, dated
24.12.2019, registered at police station Satiana, District Faisalabad, in
respect of offences under sections 302/34 PPC and vide impugned judgment
dated 09.03.2022, passed by learned Additional Sessions Judge, Jaranwala,
he (appellant) has been convicted and sentenced as under:-
Under section 302(b) PPC to imprisonment for life
and to pay an amount of Rs.1000,000/- to the legal
heirs of the deceased, namely Muhammad Faryad,
as compensation under section 544-A of Cr.P.C. The
compensation shall be recoverable as arrears of
land revenue and in default thereof to further
undergo six months simple imprisonment.
2.
Brief facts of the case as given by Muhammad Mumtaz,
complainant (PW-1) in his complaint (Ex.PA), on the basis of which the
formal FIR (Ex.PM) was chalked out, are that he (complainant) was resident
of Chak No.35/GB and a labourer by profession. On 23.12.2019, at 3.30
a.m, the complainant along with Farman (PW-2) and Iqbal (PW since given
up), was sitting in his Haveli of cattle and were chatting with each other,
whereas the son of the complainant namely Muhammad Faryad deceased
Criminal Appeal No.29448-J of 2022
2
was constructing Khuda for hens. Suddenly on hearing hue and cry from the
chowk, the complainant along with Farman Ali (PW-2) and Muhammad
Faryad (deceased), went towards the chowk and saw that Haq Nawaz
(appellant) and his co-accused were giving beating to nephew of the
complainant namely Muhammad Shahban. Muhammad Faryad (deceased)
tried to intervene but Haq Nawaz (appellant), raised a lalkara that
Muhammad Faryad (deceased), be taught a lesson as he (deceased) had
stolen the cow of one Munawar. In view of the complainant party, Liaqat
Ali (co-accused since P.O), made a fire shot, which landed on the right thigh
of Muhammad Faryad (deceased). The deceased fell on the ground,
whereafter Haq Nawaz (appellant), made a fire shot with his pistol 30-bore,
while putting his pistol on the right thigh of Muhammad Faryad (deceased).
The remaining accused persons namely Shafique alias Rambo and Shafaqat
alias Basharat (co-accused since acquitted), made aerial firing. On raising
hue and cry by the complainant party, many people of the locality gathered
at the spot, whereas the appellant and his co-accused fled away from the
spot while making fire shots.
The motive behind the occurrence was that on the previous night of
occurrence a cow of one Munawar was stolen and the foot trackers led the
footprints of the accused towards Chak No.34/GB. In Chak No.34/GB, one
Irfan was residing, who was having enmity of murders with the complainant
party. The said Irfan told the abovementioned Munawar that his cow was
stolen by Muhammad Faryad (deceased). The abovementioned Munawar
and Haq Nawaz appellant etc. had close friendship with each other and due
to the above-mentioned grudge, the occurrence was committed by the
appellant and his co-accused.
3.
After completion of investigation, the challan was prepared and
submitted before the learned trial Court. In order to prove its case, the
prosecution produced eleven witnesses during the trial. The prosecution also
produced documentary evidence in the shape of (Ex.PA) to (Ex.PX). In
defence evidence Ex.DA, was produced. The statement of the appellant
under section 342 Cr.P.C, was recorded, wherein he denied the allegations
leveled against him. The learned trial Court vide its judgment dated
Criminal Appeal No.29448-J of 2022
3
09.03.2022, found the appellant guilty, convicted and sentenced him as
mentioned and detailed above.
4.
It is contended by learned counsel for the appellant that the
appellant is absolutely innocent and he has falsely been implicated in this
case being in league with the complainant party; that there is over-writing
in complaint (Ex.PA), regarding the role attributed to the appellant as
interpolation was made by the complainant while changing the words from
left to right thigh and words by putting the pistol on the thigh of the
deceased were also added; that there is conflict between the ocular account
and the medical evidence as Dr. Kashif Jameel (PW-9), did not note any
blackening, burning or tattooing on injury No.2, therefore, the stance of the
complainant in Ex.PA that appellant made a fire shot while putting his
pistol on the thigh of the deceased is contradicted by the medical evidence;
that the prosecution miserably failed to prove its case to the extent of the
appellant beyond the shadow of doubt; that pistol (P-6) was planted against
the appellant to strengthen the weak prosecution case and no motive was
proved against the appellant, therefore, the appeal filed by the appellant
may be accepted and the appellant may be acquitted from the charge.
5.
On the other hand, learned Deputy Prosecutor General for the
State assisted by learned counsel for the complainant has supported the
impugned judgment while controverting the arguments of learned counsel
for the appellant and argued that the prosecution has proved its case against
the appellant beyond the shadow of any doubt; that the prosecution eyewitnesses remained consistent on all material aspects of the case; that the
prosecution case is fully supported by the medical evidence and
corroborated by the recovery of 30-bore pistol (P-6), at the pointing out of
the appellant; that the motive was also proved against the appellant through
reliable evidence of the prosecution witnesses;, that there is no substance in
this appeal therefore, the same may be dismissed.
6.
Arguments heard and record perused.
7.
According to the prosecution case, the motive behind the
occurrence was that on the previous night of occurrence, a cow of one
Munawar was stolen and the foot trackers led the footprints of the accused
towards Chak No.34/GB. In Chak No.34/GB, one Irfan was residing, who
Criminal Appeal No.29448-J of 2022
4
was having enmity of murders with the complainant party. The said Irfan
told the abovementioned Munawar that his cow was stolen by Muhammad
Faryad (deceased). The abovementioned Munawar and Haq Nawaz
appellant etc. had close friendship with each other and due to the abovementioned grudge, the occurrence was committed by the appellant and his
co-accused. It is, therefore, evident that cow of the appellant was not stolen
in this case rather the cow of one Munawar was stolen. Learned counsel for
the complainant has conceded that Haq Nawaz (appellant), has no
relationship with the abovementioned Munawar. It is claim of learned
counsel for the appellant that as the appellant was a foot-tacker, who tried
to trace out the accused responsible for the theft of the cow of the
abovementioned Munawar, therefore, he has falsely been implicated in this
case. I have noted that Naseer-ud-Tariq SI (PW-8), who was first
Investigating Officer of this case has conceded that Haq Nawaz (appellant)
and Liaqat (co-accused since P.O), started foot-detection being footdetectors and the same reached to Shahbaz Phulawar at Chak No.34-G.B.
Relevant part of his statement made in this respect reads as under:-
“……………it is correct that accused persons Haq Nawaz and
Liaqat started foot detection being foot detector and the same
reached to Shahbaz Phulawar at chak No.34/GB……………”
As Haq Nawaz (appellant) was having no personal grudge or enmity against
Muhammad Faryad (deceased), therefore, he had no reason to commit the
occurrence. Even the learned trial Court in paragraph No.20, of the
impugned judgment has disbelieved the motive part of the prosecution case,
therefore, I am of the view that the prosecution has failed to prove any
motive against the appellant.
8.
Insofar as the ocular account of the prosecution case regarding the
role attributed to the appellant is concerned, in this respect, I have noted
that in the complaint Ex.PA, there is over-writing with regard to role
attributed to the appellant. It is evident from the perusal of the complaint
Ex.PA that initially it was alleged that Haq Nawaz (appellant), made a fire
shot with his pistol, which landed on the left thigh of Muhammad Faryad
(deceased) but after interpolation and overwriting the abovementioned
Criminal Appeal No.29448-J of 2022
5
words were changed from left thigh to right thigh and the words by putting
the pistol on the thigh were also added and as such the role attributed to the
appellant has been changed through interpolation and over-writing. It is
further noteworthy that in the contents of the FIR (Ex.PM) and in the
complaint (Ex.PA), it was alleged that Haq Nawaz (appellant), made a fire
shot with his pistol after putting the same on his right thigh but Dr. Kashif
Jameel (PW-9), who first medically examined Muhammad Faryad
(deceased) in injured condition, did not note any blackening, burning or
tattooing on injury No.2, which was on the right thigh of the deceased. He
further conceded that in case of a contact fire shot, there is possibility of
blackening, burning and tattooing. He also added that as there was no
blackening, burning or tattooing on the injuries of the deceased, therefore,
the said injuries were not contact wounds and the said injuries were caused
from the range of more than three feet. Relevant parts of his statement in
this respect reads as under:-
“………………………There is possibility of blackening, burning
and tattooing if fire shot is made by putting firearm weapon on
the person (contact fire)…………………………………………
……………………… ………………………….As per my MLC there
is no blackening, burning and tattooing on the injuries. Both are
not contact fires. PW volunteer that injured might sustained
firearm injuries out of the range of more than 03-
feet……………….”
I am, therefore, of the view that there is conflict in the ocular account and
the medical evidence of the prosecution to the extent of role attributed to
Haq Nawaz (appellant), of making a fire shot on the right thigh of the
deceased by putting his pistol on his right thigh.
Learned Deputy Prosecutor General assisted by learned counsel for
the complainant has next argued that there was a dying declaration of
Muhammad Faryad (deceased), wherein he fully implicated Haq Nawaz
(appellant), in this case but it is noteworthy that Dr. Kashif Jameel (PW-9),
who initially medically examined Muhammad Faryad (deceased) in injured
condition was not the medical officer, who allowed the Investigating
Officer to record the dying declaration of the deceased. He did not utter a
single word in this respect and the Medical Officer, who allowed to record
the alleged dying declaration of the deceased was not produced in the
witness box. Moreover, Dr. Kashif Jameel (PW-9), has further stated during
Criminal Appeal No.29448-J of 2022
6
his cross examination that the condition of the injured was critical and in
the column of history, he has mentioned that the victim did not name the
assailant. Relevant part of his statement made in this respect reads as
under:-
“I did not mention in my MLC due to critical condition the
patient was unable to speak. PW volunteer that I mentioned the
pulse 110 per minute and blood pressure 90/60 that shows the
critical condition. There is no scale mentioned in Medico-legal
Certificate as at what limit of blood pressure or pulse makes the
person unspeakable. It is mentioned in history that victim did not
state the name of any assailant……………………….”
In order to prove the dying declaration of the deceased, the prosecution has
only produced Muhammad Mansha retired SI (PW-11). He stated that he
recorded dying declaration of the deceased (Ex.PF) and he also produced
the abovementioned document to establish that the deceased was fit to make
statement but as mentioned earlier, the relevant Medical Officer, who gave
the abovementioned opinion that the deceased was fit to make statement has
not been produced in the witness box. It is further noteworthy that in the
examination-in-chief, Muhammad Mansha retired SI (PW-11), has stated
that at the time of joining Muhammad Faryad (deceased), the then injured
into the investigation of this case the father of the deceased namely
Muhammad Mumtaz, Mst. Mumtaz Bibi (mother) and Muhammad Tariq
(brother), were present, who joined the investigation but the
abovementioned witness namely Muhammad Mumtaz (PW-1), did not utter
a single word in his examination-in-chief that dying declaration of
Muhammad Faryad deceased was recorded in his presence and he only
denied a suggestion during his cross-examination that it was incorrect that
no such statement was recorded by the police. Remaining above-mentioned
witnesses of dying declaration were also not produced by the prosecution in
the witness box. Neither any member of the concerned hospital staff was
associated at the time of recording of statement of the deceased nor it was
got verified by any official of the hospital that the statement was actually
made by the deceased. Under the circumstances, the status of
abovementioned statement of the deceased was a statement under section
161 Cr.P.C and not the dying declaration of the deceased. If the
abovementioned statement is considered to be statement of the deceased
Criminal Appeal No.29448-J of 2022
7
under section 161 Cr.P.C, then the said statement without the test of crossexamination is not worthy of reliance. In the case of “Mst. Zahida Bibi Vs.
The State” (PLD 2006 Supreme Court 255), the Hon’ble Supreme Court
of Pakistan was pleased to held as under:-
“……………………………This is an admitted fact that the
statement of the deceased was not recorded by the Sub-Inspector of
police in hospital in presence of the doctor and further neither any
member of the hospital staff was associated at the time of recording
the statement nor it was got verified by any official of the hospital
that the statement was actually made by the deceased. Be that as it
may, the status of such a statement would be hardly a statement
under section 161, Cr.P.C. and not a dying declaration of the
deceased. This may be seen that the dying declaration or a
statement of a person without the test of cross-examination is a
weak kind of evidence and its credibility certainly depends upon the
authenticity of the record and the circumstances under which it is
recorded, therefore, believing or disbelieving the evidence of dying
declaration is a matter of judgment but it is dangerous to accept
such statement without careful scrutiny of the evidence and the
surrounding circumstances, to draw a correct conclusion regarding
its „truthfulness. The rule of criminal administration of justice is
that the dying declaration like the statement of an interested
witness requires close scrutiny and is not to be believed merely for
the reason that dying person is not expected to tell lie. This is a
matter of common knowledge that in such circumstances in
preference to any other person, a doctor is most trustworthy and
reliable person for a patient to depose confidence in him with the
expectation of sympathy and better treatment to disclose the true
facts. In the present case, in the manner in which the statement of
deceased was recorded by the Sub-Inspector, would seriously
reflect upon its correctness and consequently, could not be
considered worthy of any credit to be relied upon as dying
declaration………………..”
Similarly in the case of “Farman Ahmed Vs. Muhammad Inayaat and
others” (2007 SCMR 1825), the Hon’ble Supreme Court of Pakistan has
Criminal Appeal No.29448-J of 2022
8
held that dying declaration of the deceased requires independent
corroboration but as mentioned earlier, in the instant case, none from the
concerned hospital appeared to corroborate the abovementioned alleged
dying declaration of the deceased. I am, therefore, of the view that dying
declaration of the deceased has not been proved in this case in accordance
with the law.
9.
Insofar as the recovery of pistol (P-6), at the pointing out of Haq
Nawaz (appellant), is concerned, I have noted that the report of PFSA
(Ex.PV), is only regarding mechanical operating condition of the
abovementioned pistol and the empties recovered from the spot (C1 to C8),
did not match with the said pistol, therefore, I am of the view that the
recovery of pistol (P-6), at the pointing out of the appellant is of no avail to
the prosecution.
10.
I have considered all the aspects of this case and have come to this
irresistible conclusion that the prosecution miserably failed to prove its case
to the extent of Haq Nawaz (appellant) beyond the shadow of doubt. It is by
now well settled that if there is a single circumstance which creates doubt
regarding the prosecution case, the same is sufficient to give benefit of
doubt to the accused, whereas, the instant case is replete with number of
circumstances which have created serious doubts about the prosecution
story. Reliance in this respect is placed on the judgments reported as ‘Tariq
Pervez versus The State’(1995 SCMR 1345) and ‘Muhammad Akram
versus The State’(2009 SCMR 230).
11.
In the light of above discussion, I am of the view that the
prosecution has failed to prove its case to the extent of Haq Nawaz
(appellant) beyond the shadow of doubt, therefore, I accept Criminal
Appeal No.29448-J of 2022 filed by Haq Nawaz (appellant), set aside his
conviction and sentence recorded by the learned trial Court vide impugned
judgment dated 09.03.2022 and acquit him of the charge by extending him
the benefit of doubt. He is in custody, he be released forthwith if not
required to be detained in any other case.
12.
It is pertinent to mention here that Liaqat Ali (co-accused), is still a
proclaimed offender in this case, therefore, case property be kept intact till
his arrest and till decision of the case to his extent. The findings recorded in
Criminal Appeal No.29448-J of 2022
9
this case are only to the extent of Haq Nawaz (appellant) and the case of the
above-mentioned Liaqat Ali, co-accused (since P.O) shall be decided on its
own merits and on the basis of evidence recorded after his arrest.
(MALIK SHAHZAD AHMAD KHAN)
CHIEF JUSTICE
This judgment has been dictated
And pronounced on 22.05.2024 whereas
Prepared and signed on 29.05.2024.. *Aitazaz*
Approved for reporting.
(MALIK SHAHZAD AHMAD KHAN)
Chief Justice
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