Accused persons acquitted in 4 murders Appeals
1. **پیش کردہ شواہد کی بے قاعدگی**: عدالت نے اشارہ کیا کہ مقدمے میں پیش کردہ شواہد میں تضاد پایا گیا ہے اور استغاثہ اپنے کیس کو معقول شک سے بالاتر ثابت کرنے میں ناکام رہا ہے۔
2. **گواہوں کی ناقابل اعتمادیت**: عدالت نے گواہوں کے بیانات کی صداقت پر سوال اٹھایا اور پایا کہ ان کی گواہی متضاد اور ناقابل اعتبار ہے۔
3. **مدعی اور ملزمان کے متضاد بیانات**: عدالت نے دونوں طرف کے بیانات کی تضاد کو تسلیم کیا اور ان کی حقیقت کو جانچنے میں دشواری کا سامنا کیا۔
4. **مبہم اور ناقص تحقیق**: عدالت نے پولیس تحقیق کی خامیوں اور ملزمان کی ضمانت کے حق میں بیان کیا کہ تحقیق کی بنیادی خامیاں اور شواہد کی ناکافی موجودگی نے عدالت کو ملزمان کی بے گناہی پر یقین دلایا۔
5. **دفاع کی بنیاد پر فیصلہ**: عدالت نے یہ نتیجہ اخذ کیا کہ چونکہ استغاثہ اپنے کیس کو ثابت کرنے میں ناکام رہا ہے، اس لیے ملزمان کو فائدہ دیا جاتا ہے اور انہیں بری کیا جاتا ہے۔
یہ ریمارکس عدالت کے فیصلے کی بنیاد فراہم کرتے ہیں اور مقدمے کی حقیقت اور گواہوں کی سچائی پر جج کی رائے کو ظاہر کرتے ہیں۔
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| Accused persons acquitted in 4 murders Appeals |
**مقدمہ کی کہانی:**
16 مئی 2015 کو میانوالی میں اپیل گزاروں عمر دراز، عبدالغفار، عبدالحفیظ اور محمد شوکت کے ڈیرہ کے قریب ایک واقعہ پیش آیا۔ شکایت کنندہ، رہتاس خان، اور اس کے ساتھی دو افراد، محمد اشرف اور محمد زمان کی مدد کے لیے گئے، جنہوں نے دعویٰ کیا کہ ان کی گاڑی (ڈالا) قریب ہی پھنس گئی تھی۔ پہنچنے پر، ان کا سامنا اپیل کنندگان اور دیگر مسلح افراد سے ہوا۔
جھگڑا ہوا، جس کے دوران مختلف ہتھیاروں سے لیس اپیل کنندگان اور ان کے ساتھیوں نے محمد اشرف، محمد اصغر، محمد زمان اور شیر عباس پر فائرنگ کر دی۔ محمد اشرف، محمد اصغر اور محمد زمان موقع پر ہی جاں بحق ہو گئے جبکہ شیر عباس شدید زخمی ہو گیا اور بعد میں زخموں کی تاب نہ لاتے ہوئے چل بسا۔
شکایت کنندہ رحمت خان نے اپیل کنندگان اور دیگر افراد پر قتل کا الزام لگاتے ہوئے ایف آئی آر درج کرائی۔ استغاثہ نے دلیل دی کہ ملزمان سابقہ واقعہ کا بدلہ لینا چاہتے تھے جس میں مقتول شریک ملزم عبداللطیف شامل تھا جس کے کپڑے مبینہ طور پر متاثرین نے چھین لیے تھے۔
ایک الگ لیکن متعلقہ کراس شکایت میں، اپیل کنندگان نے دعویٰ کیا کہ ان پر بھی شکایت کنندہ کی پارٹی نے حملہ کیا اور زخمی کیا۔ تاہم، عدالت نے استغاثہ کے مقدمے میں تضادات پایا، جس میں گواہوں کے ناقابل اعتماد اکاؤنٹس، محرکات میں تضادات اور فرانزک رپورٹس سے متضاد شواہد شامل ہیں۔
بالآخر، لاہور ہائی کورٹ نے اپیل کنندگان کو ناکافی شواہد کی بنا پر بری کر دیا جو ان کے جرم کو معقول شک سے بالاتر ثابت کرتے ہیں، اور سزائے موت کی تصدیق نہیں ہو سکی تھی۔
JUDGMENT SHEET
IN THE LAHORE HIGH COURT,
RAWALPINDI BENCH RAWALPINDI
JUDICIAL DEPARTMENT
Murder Reference No.223 of 2019
The State
Versus
1.Umer Draz
2.Abdul Ghafar
3.Abdul Hafeez
4.Muhammad Shoukat
Criminal Appeal No.44377 of 2019
Umer Draz etc
Versus The State etc.
P.S.L.A.No.55094 of 2019
Rahtas Khan
Versus Tariq Aziz etc.
Criminal Rev.No.55096 of 2019
Rahtas Khan
Versus Abdul Ghafar etc.
Date of hearing:
20.02.2024
Appellant by:
M/s. Azam Nazeer Tarar,
M. Irfan Malik and Rida
Noor, Advocates.
State by:-
Mr.
Naveed Ahmad
Warraich, DDPP.
Complainant by:- Mian Pervez Hussain,
Omais Nasir and Saima
Asif Rana, Advocates.
SADAQAT ALI KHAN, J. Umer Draz,
Abdul Ghafar, Abdul Hafeez and Muhammad
Shoukat (appellants) along with Muhammad Khan,
Ghulam Muhammad, Abdul Hameed, Muhammad
Sharif, Tariq Aziz and Abdul Rasheed (co-accused since
acquitted) have been tried by trial Court in private
complaint under sections 302/324/148/149 PPC
arising out of case FIR No.97 Dated 16.05.2015 P.S.
Wan Bhachran, District Mianwali, and were
convicted and sentenced vide judgement dated
26.06.2019 as under:-
Murder Reference. No.223 of 2019
Criminal Appeal No.44377 of 2019
P.S.L.A.NO.55094 of 2019
Criminal Revision No.55096 of 2019
Umer Draz, Abdul Ghafar, Abdul Hafeez and
Muhammad Shoukat (appellants)
u/s 302 (b) PPC
Sentenced to Death as ‘Ta’zir’ each on four
counts for the murders of Muhammad
Ashraf, Muhammad Asghar, Muhammad
Zaman and Sher Abbas along with
compensation of Rs.200,000/- (recoverable as
arrears of land revenue) each u/s 544-A Cr.P.C. to
the legal heirs of each deceased and in
default thereof to further undergo 6-months
S.I. on each count.
u/s 148 PPC
Sentenced to 3-years R.I. each for
commission of offence of rioting
Sentences of the appellants were ordered to
be run concurrently with benefit of section
382-B Cr.P.
2.
Appellants have filed this Criminal Appeal
against
their
convictions, complainant filed
Crl.P.S.L.A against acquittal of respondents/coaccused (discussed above) and Crl.Rev. for enhancement
of compensation whereas trial Court has sent
Murder Reference for confirmation of death sentence
of Umer Draz, Abdul Ghafar, Abdul Hafeez and
Muhammad Shoukat (appellants) or otherwise, which
are being decided through this single judgment.
3.
Brief facts of the case have been stated by the
complainant Rahtas KhanPW13
in his statement
before the learned trial Court, which is hereby
reproduced as under for narration of the facts:-
“Stated that I am resident of Muzaffarpur Janoobi,
Tehsil & District Mianwali. On 16-05-2015 I alongwith
Ameer Ahmad, Farhat Ullah were present at my dera,
where I received mobile phone call at about 01:45 pm
called by Muhammad Ashraf and Mohammad Zaman
that our dala loaded by wood stuck near the dera
Kalluanwala and asked for our help. On that account I
alongwith Ameer Ahmad, Farhatullah on one
motorcycle while Muhammad Asghar and Sher Abbas
on other motorcycle reached there at about 02:15 pm
where accused Umar Daraz, Abdul Ghafar armed with
repeaters, Muhammad Khan, Ghulam Muhammad
both armed with Kalashnikov, Waheed, Hafeez both
armed with Kalashnikovs, Hameed, Abdul Rasheed
both armed with Gun 12-bore, Abdul Lateef (since
dead) armed with rifle 44-bore, Shareef armed with
pistol 30bore, Shoukat armed with pistol 30bore and
Tariq armed with pistol 30-bore, came there and Abdul
Ghafar and others raised Lalkara that they are here to
teach lesson for striping off the cloths of Abdul Lateef.
Then Abdul Ghafar made fire with his repeater hitting
Muhammad Ashraf on his chin, Umar Daraz fired at
Murder Reference. No.223 of 2019
Criminal Appeal No.44377 of 2019
P.S.L.A.NO.55094 of 2019
Criminal Revision No.55096 of 2019
Muhammad Asghar hitting his chin. In retaliation
Muhammad Zaman made a burst fire towards Abdul
Lateef, Umar Daraz, Shoukat, Abdul Waheed and
Muhammad Hafeez. All the other accused persons
made indiscriminate firing hitting Muhammad Ashraf,
Asghar, Muhammad Zaman and Sher Abbas on
different parts of their bodies. The above stated
accused persons also made firing upon us but while
laying on ground we saved our lives. All the above
stated accused persons managed their escape good
towards their houses while saying that they had taken
revenge for striping off the cloths of Abdul Lateef. We
managed Muhammad Ashraf, Asghar, Zaman and
Sher Abbas in injured condition but Ashraf, Asghar
and Zaman succumbed to the injuries at the spot
while Sher Abbas was shifted to the DHQ Hospital
Mianwali in injured condition. I alongwith Farhatullah,
Ameer Ahmad P.Ws witnessed the occurrence. I was
proceeding to Police Station Wan Bhachran while in
the way at Chor-wala I met Abdul Ghafoor S.I who
recorded my statement Ex.P-X by my signatures which
was read over to me. My signatures are Ex.PX/1.
The motive behind the occurrence is that the
clothes of Abdul Lateef (deceased) were stripped off by
Muhammad Asghar (deceased) and Muhammad Ashraf
(deceased) due to that revenge accused persons above
stated have committed this occurrence.”
4.
Heard. Record. Perused.
5.
It is the case of two versions. The duty of a
Court in such like cases is to review entire evidence
and circumstances at the close, before arriving at a
conclusion regarding the truth or falsity of the
defence plea. All factors favouring belief in
accusation must be placed in juxta position to the
corresponding factors favouring the plea in defence.
It is worth mentioning that prosecution case and
defence plea are considered in juxta position with
each other to determine that which story is plausible
and near to truth. However, it is not ignored that
basic duty of the prosecution to prove its own case
beyond shadow of doubt against an accused. If
prosecution is failed to prove its case beyond shadow
of doubt against an accused then there is no need to
consider prosecution case and defence plea in juxta
position with each other rather an accused is to be
acquitted even if he had taken a plea and had
Murder Reference. No.223 of 2019
Criminal Appeal No.44377 of 2019
P.S.L.A.NO.55094 of 2019
Criminal Revision No.55096 of 2019
thereby admitted killing the deceased. It is also
settled by now that if an accused declines to be
examined on oath as his own defence witness, this
does not leave it open to presume that he is guilty
because it is the duty of only and only the
prosecution to prove its case against the accused
beyond shadow of doubt and that burden is not
reduced by not appearing an accused as his own
witness under section 340(2) Cr.P.C. to prove his
defence plea. In these circumstances firstly, we take
up the case of prosecution to consider as to whether
it has proved its case beyond any shadow of doubt
against the appellants or not.
6.
In present case, from one side Muhammad
Ashraf, Muhammad Asghar, Muhammad Zaman
were done to death and Sher Abbas sustained
firearm injuries but later on he also succumbed to
the injuries. During life time of Sher Abbas (deceased),
the then injured, his dying declaration was not
recorded. Muhammad Zaman and Sher Abbas
(deceased) had no relation inter-se as well as with
Muhammad Ashraf and Muhammad Asghar (deceased)
who were real brothers inter-se. Rahtas Khan/
complainantPW13 being paternal uncle of Muhammad
Ashraf and Muhammad Asghar (deceased) got lodged
FIR No.97 on 16.05.2015 at 3.50 p.m. against the
appellants and other co-accused (since acquitted
mentioned above) regarding the occurrence took place
on the same day (16.05.2015) at 02.15 p.m.,
who (Rahtas Khan/complainantPW13
) and Farhat Ullah
KhanPW14 claim themselves to be the eye-witnesses of
the occurrence.
Murder Reference. No.223 of 2019
Criminal Appeal No.44377 of 2019
P.S.L.A.NO.55094 of 2019
Criminal Revision No.55096 of 2019
7.
On the other side, Abdul Latif was done to
death, whereas Abdul Waheed (died before recording of his
statement before the trial Court), Muhammad Shaukat,
Abdul Hafeez and Umar Daraz (appellants) also
sustained firearm injuries during the same
occurrence for which cross-version/separate FIR
No.98 Dated 16.05.2015 u/ss 302/324/148/149
PPC P.S Wan Bhachran, District Mianwali was got
lodged on the statement of Abdul Sattar (father of Umer
Draz and Abdul Ghaffar, appellants) against Muhammad
Rahtas (complainant of instant FIR i.e.97/2015), Arshad
Khan, Akram Khan, Muhammad Aslam Khan,
Khalas Khan, Muhammad Farooq and Ghulam
Abbas @ Gaman (Ghulam Muhammad), who have been
acquitted by the trial Court through separate
judgment dated 26.06.2019. Appellants were the
injured eye-witnesses in support of their crossversion who have been disbelieved by the trial Court
against Rahatas Khan/complainantPW13 and Farhat
Ullah PW14 (who have not received any injury during the
occurrence) and have been disbelieved to the extent of
co-accused having effective role of firing on the
persons of all four deceased.
8.
Time, date, month, and year of occurrence
are not disputed. Place of occurrence is Kacha path
near the Dera of the appellants which is also not
denied, where the complainant party of the present
case had apparently no business as Muhammad
Ashraf and Muhammad Zaman (deceased) could go
through the different route leading to their houses
and selecting a “Kacha” path in question near the
Dera of appellants and summoning of the other
Murder Reference. No.223 of 2019
Criminal Appeal No.44377 of 2019
P.S.L.A.NO.55094 of 2019
Criminal Revision No.55096 of 2019
deceased (Muhammad Asghar and Sher Abbas) alongwith
Rahtas Khan/complainantPW13 and Farhat Ullah
KhanPW14 with the plea that they need their help as
their “Dala” loaded with wood had stuck off near
Dera of the appellants is neither plausible nor
believable. Abdul Ghafoor SI/CW-6 stated in his
cross examination that he had not mentioned in site
plan of the place of occurrence that Dala was stuck
off at point No.14 because complainant and
witnesses of case F.I.R. No.97/2015 had not pointed
out the same. He had not found helping machinery
such as tractor etc. at the place of occurrence to
remove Dala from there. He admitted in his crossexamination that complainant, witnesses and
deceased of case F.I.R.No.97/2015 were having no
landed property around or in the close vicinity of the
place of occurrence. He had found heavy arms and
ammunition including drum-magazines from near
the dead bodies of deceased persons of case
F.I.R.No.97. He had collected numerous crime
empties from the place of occurrence of deceased of
case F.I.R. No. 97. All these facts suggest that
occurrence had not taken place in the manner
alleged by the prosecution.
9.
Fazal Karim SI/CW-4 admitted in his
cross examination that previous I.Os. had deferred
the arrest of the accused and he did the same in view
of their versions. It is not denied that appellants
along with Abdul Waheed (since dead) and Lateef
deceased sustained fire arm injuries during the
occurrence rather it is mentioned in the FIR of the
present complainant with one difference that
Murder Reference. No.223 of 2019
Criminal Appeal No.44377 of 2019
P.S.L.A.NO.55094 of 2019
Criminal Revision No.55096 of 2019
Muhammad Zaman one of the deceased of this case
caused firearm injuries with Kalashnikov on their
persons which version is not believable.
10.
The trial Court itself has specifically
observed in para-10 of the impugned judgment that
“The Court has no hesitation to conclude that both
the parties have not come up with whole truth and
they have distorted some facts about the unfortunate
occurrence and the actual incident which resulted in
the occurrence”. It is further observed that “ it can
also be concluded that neither the complainant party
came there with specific motive after preparing itself
to launch the attack nor the complainant party
would have made any such efforts but in view of the
already existing tense relations between them, the
occurrence took place and the presence of weapons
with both the parties is natural”. It is also observed
in para-15 of the judgment “There appears to be a
strong probability that both the parties have
exaggerated about the numbers of the actual
participants from both sides in the occurrence. The
evidence of the prosecution from both sides reveal
that parties were inimical and in that perspective the
probability that parties have thrown wider net to
involve the maximum number of persons from both
sides cannot be ruled out. It is observed that all
Investigation Officers i.e. CW-1 to CW-6 have found
no incriminating material against accused persons
Muhammad Khan, Ghulam Muhammad, Abdul
Hameed, Muhammad Sharif, Abdul Ghafar, Tariq
Aziz and Abdul Rasheed and they have also verified
their pleas of alibi”. In last learned trial Court in
Murder Reference. No.223 of 2019
Criminal Appeal No.44377 of 2019
P.S.L.A.NO.55094 of 2019
Criminal Revision No.55096 of 2019
para 20 of the impugned judgment has also observed
that “In view of above discussion, it is held that
prosecution has failed to prove the charge against
accused persons Muhammad Khan, Ghulam
Muhammad, Abdul Hameed, Muhammad Sharif,
Tariq Aziz and Abdul Rasheed beyond the shadow of
reasonable doubt and they are hereby acquitted from
the charge by extending the benefit of doubt”. In
presence of above discussed observations of the trial
Court, the appellants could not have been convicted
while acquitting their co-accused with similar role by
disbelieving complainant Rahtas KhanPW-13 and
Farhat Ullah Khan
PW-14
.
11.
Dr. Anayt Ullah,PW-5 during post mortem
examination on the dead body of Muhammad Ashraf
alias Achhu observed firearm entry wound on left
side of his chin (Injury 1), on his left ear (Injury 3), a
firearm re-entry wound on front of his right shoulder
(Injury 5) and stated in his cross examination that
injury 5 mentioned above was the re-entry wound of
injury 1. The Medical Officer during post mortem
examination on the dead body of Muhammad Zaman
deceased observed single firearm entry wound on
back of his scalp (jointly attributed to appellants and their coaccused, seven in number since acquitted). Likewise, Medical
Officer during post mortem examination on the dead
body of Muhammad Asghar observed single firearm
entry wound on his chin. Medical Officer also
observed single firearm entry wound on the skull of
Sher Abbas deceased (jointly attributed to appellants and
their co-accused since acquitted) mentioned above. Above
discussed injuries on the persons of all the deceased
Murder Reference. No.223 of 2019
Criminal Appeal No.44377 of 2019
P.S.L.A.NO.55094 of 2019
Criminal Revision No.55096 of 2019
also negate the story of prosecution that ten accused
made joint effective firing on their persons.
12.
Abdul Ghafar (appellant), Tariq Aziz, Abdul
Hameed, Abdul Rasheed, Muhammad Sharif,
Muhammad Khan and Ghulam Muhammad (coaccused) have also been attributed role of firing on the
persons of all the four deceased i.e. Muhammad
Ashraf, Muhammad Asghar, Muhammad Zaman and
Sher Abbas (well mentioned in the FIR) but these accused
have been found not involved in the occurrence
during investigation as stated by Fazal Karim/S.I.CW4
in his cross-examination and except Abdul Ghafar
(appellant), the others accused mentioned above have
been acquitted by the trial Court through the
impugned judgment. (2019 SCMR 1978 “Safdar
Mehmood and others Vs. Tanvir Hussain and
others”).
13.
Statedly, Rahtas Khan/complainantPW13
and Farhat Ullah KhanPW14 (alleged eye-witnesses of the
occurrence) reached the place of occurrence and saw
the occurrence after receiving telephonic call made
by Muhammad Ashraf and Muhammad Zaman
(deceased) at 1.45 p.m. on 16.05.2015 when they were
sitting at the Dera of Rahtas Khan/complainant PW13
but call data in this respect has not been produced
to establish this fact. They are residents of Muzafar
Pur Janobi and village Gulmeeri respectively and are
not residents of Kalluwanwala where the occurrence
took place. They also did not receive any injury
during the occurrence despite cross firing claimed by
them in their story/statements which is neither
plausible nor believable and have already been
Murder Reference. No.223 of 2019
Criminal Appeal No.44377 of 2019
P.S.L.A.NO.55094 of 2019
Criminal Revision No.55096 of 2019
disbelieved by the trial Court to the extent of coaccused (since acquitted).
14.
Nothing was recovered on pointing out of
Abdul Ghafar (appellant). Recovery of 30-bore pistol,
Kalashnikov and 12-bore gun on pointing out of
Muhammad Shoukat, Abdul Hafeez and Umar Draz
(appellants), respectively in absence of positive report of
PFSA regarding matching of crime empties with
weapons of offence is inconsequential. It is important
to note here that on the other hand report of Punjab
Forensic Science Agency placed at page 108 of the
paper book of M.R.No.223 of 2019 Part-I shows that
pistol (P1) recovered from near dead body of
Muhammad Ashraf deceased has matched with
crime empties i.e. C3, C5, and C6 collected from
place of occurrence, pistol 30-bore (P2) recovered
from near dead body of Muhammad Asghar deceased
has matched with crime empties C1, C2 and C3
collected from the place of occurrence and rifle (R1)
recovered from near dead body of Muhammad
Zaman deceased has matched with crime empties
C8, C10, C11, C13, C16 and C23 to C33 collected
from place of occurrence and disbelieves the version
of present complainant.
15.
We are mindful that murder of four
persons is a crime of heinous nature but it is also in
our mind that in the same occurrence appellants
along with Abdul Latif (deceased) and Abdul Waheed
(since dead) also sustained firearm injuries statedly at
the hands of complainant party. Cases are to be
decided on the basis of evidence and evidence alone
and not on the basis of sentiments and emotions.
Murder Reference. No.223 of 2019
Criminal Appeal No.44377 of 2019
P.S.L.A.NO.55094 of 2019
Criminal Revision No.55096 of 2019
Gruesome, heinous and brutal nature of the offence
may be relevant at the stage of awarding suitable
punishment for conviction but it is totally irrelevant
at the stage of appraising or reappraising the
evidence available on record to determine guilt of the
accused persons as possibility of an innocent person
having been wrongly involved in cases of such nature
cannot be ruled out. An accused person is presumed
to be innocent till the time he is proven guilty beyond
reasonable doubt, and this presumption of his
innocence continues until the prosecution succeeds
in proving the charge against an accused beyond
reasonable doubt on the basis of legally admissible,
confidence inspiring, trustworthy and reliable
evidence which is missing in the present case. (PLD
2021 SC 600 “Naveed Asghar and 2 others Vs. The
State”).
16.
Considering above, we are of the view that
prosecution has failed to prove the case with its
version, so there is no need to discuss the version of
the appellants. As law is settled by now that if the
prosecution fails to prove its case against an accused
person then the accused person is to be acquitted
even if he had taken a plea and had thereby admitted
killing the deceased. (2013 SCMR 383 “Azhar Iqbal
vs. The State”).
17.
In view of the above discussion, we
entertain serious doubt in our mind regarding
participation of Umer Draz, Abdul Ghafar, Abdul
Hafeez and Muhammad Shoukat (appellants) as well as
co-accused since acquitted. It is settled principle of
law that for giving benefit of doubt, it is not necessary
Murder Reference. No.223 of 2019
Criminal Appeal No.44377 of 2019
P.S.L.A.NO.55094 of 2019
Criminal Revision No.55096 of 2019
that there should be many circumstances creating
doubt. If there is a circumstance which creates
reasonable doubt in the prudent mind about the guilt
of the accused, then he would be entitled to its
benefit not as a matter of grace or concession, but as
of right.
18.
For the foregoing reasons, this appeal is
allowed, convictions and sentences of Umer Draz,
Abdul Ghafar, Abdul Hafeez and Muhammad
Shoukat (appellants) awarded by trial Court through
impugned judgment are hereby set-aside. They are
acquitted of the charges and directed to be released
forthwith, if not required in any other case. Murder
Reference is answered in NEGATIVE and death
sentences of Umer Draz, Abdul Ghafar, Abdul Hafeez
and Muhammad Shoukat (appellants) on all counts are
NOT CONFIRMED.
19.
In view of above decision, PSLA filed by the
complainant against acquittal of respondents/
accused having no merits is dismissed whereas
Criminal Revision filed by him for enhancement of
compensation having become infructuous is disposed
of.
(Mirza Viqas Rauf)
Judge
(SADAQAT ALI KHAN)
Judge
Approved for Reporting
Judge
Judg
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