2024 M L D 359
[Lahore]
Before Aalia Neelum and Asjad Javaid Ghural, JJ
TAHA AZAAM ULLAH and others---Appellants
Versus
The STATE and others---Respondents
Criminal Appeal No. 27767, P.S.L.A. No. 41181 and Murder Reference No. 241 of 2019, decided on 26th June, 2023.
(a) Penal Code (XLV of 1860)---
----Ss. 302(b), 324 & 34---Police Rules, 1934, R. 24.5(1)---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Delay of one hour and fifteen minutes in lodging the FIR---Consequential---Accused was charged that he along with his co-accused committed murder of the brother of complainant by firing---Incident took place on 28.06.2017 at 6.00 p.m. in the area which was at a distance of three farlang from the place of occurrence---Complainant reported the incident through written complaint at Police Station, after that FIR was registered at 07.15 p.m.---Complainant took one hour and fifteen minutes to report the incident to the police---Complainant deposed during cross-examination that after about fifteen minutes of the occurrence, he went to bazaar and got drafted a written complaint---Said witness deposed that police arrived at the place of occurrence after about one and half/two hours after the occurrence---Upon arrival of the police, complainant got written the application for registration of case and went to police station and then police came at the spot and brought the dead body---Investigating Officer deposed during examination-in-chief that on receiving the complaint, moved by complainant, on his dictation, FIR was generated through the computer system---However, the written complaint was not recorded in the FIR register, which threw doubt on the time of reporting the incident to the police---Police did not register FIR in the book/register kept for registration of cases and instead entered the complaint in the computer and assigned a number---No explanation had been furnished regarding how the FIR registration number and E-tag number appeared on that document---Said fact led to only one inference that the document was prepared later---Evidential value of the FIR would be reduced if it was made after the unexplained delay, particularly when the same was not entered in the printed Form as provided under R. 24.5(1) of Police Rules, 1934---Thus, the mandatory provisions of the law were departed from which created doubt about the truthfulness of the allegation levelled in the FIR---When the incident was reported to the police and unexplained holes were left in the prosecution story, the benefit of same must accrue to the accused---Circumstances established that the prosecution had badly failed to bring home a charge against the accused beyond any reasonable doubt---Appeal against conviction was accordingly allowed.
(b) Penal Code (XLV of 1860)---
----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Presence of eye-witnesses at the spot not proved---Accused was charged that he along with his co-accused committed murder of the brother of complainant by firing---Investigating Officer prepared an inquest report, wherein the names of the complainant and eye-witness had not been mentioned in column No.4, and the inquest report was not signed by any of the eye-witnesses or the complainant---Although, the Investigating Officer had categorically asserted that he recorded the statements of the witnesses under S. 161 of Cr.P.C. and also made the investigation, which showed that the witnesses were not present at the place of occurrence---Complainant, after half an hour after the incident, went to the market and got drafted a complaint, and after that, he went to the police station to report the incident---Said deposition of the complainant revealed that before reporting the incident to the police, complainant managed two witnesses---Admittedly, one witness belonged to another district, which was about 70/80 kilometers, whereas other witness belonged to a place, which was 5/7 kilometers from the place of occurrence---Presence of both the said witnesses at the time of preparation of the inquest report at 07:15 p.m. on 28.06.2017 suggested that the FIR had been registered after due consultation and deliberation by the complainant and also created doubt regarding the actual time of proceedings of inquest taken by the Investigating Officer, as they were called by the complainant through a telephone call from their respective places--- Circumstances established that the prosecution had badly failed to bring home a charge against the accused beyond any reasonable doubt---Appeal against conviction was accordingly allowed.
(c) Penal Code (XLV of 1860)---
----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Delay of ten hours and forty five minutes in conducting the post-mortem examination not explained---Accused was charged that he along with his co-accused committed murder of the brother of complainant by firing---On perusal of complaint, FIR, it revealed that the same was lodged at 07:15 p.m. on 28.06.2017, and postmortem was conducted by Medical Officer on 29.06.2017 at 06:00 a.m., with a delay of about 10 hours and 45 minutes from the time of registration of FIR---Prosecution did not explain the delay in conducting the postmortem examination---Circumstances established that the prosecution had badly failed to bring home a charge against the accused beyond any reasonable doubt---Appeal against conviction was accordingly allowed.
Irshad Ahmed v. The State 2011 SCMR 1193 rel.
(d) Penal Code (XLV of 1860)---
----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Interested and related witnesses, evidence of---False implication---Accused was charged that he along with his co-accused committed murder of the brother of complainant by firing---Admittedly, the prosecution witnesses were interested and inimical towards the accused---Accused was the son of co-accused and brother of two acquitted accused persons---Complainant deposed during cross-examination that about six months earlier to the occurrence, he lodged FIR under S. 364, P.P.C., regarding the abduction of a witness against the co-accused and his sons---Similarly, the eye-witness deposed during cross-examination that a criminal case was registered against accused and his father etc regarding his abduction---Said case was registered by the complainant of the present case---So, all these facts suggested that both the prosecution witnesses were not only inimical towards the accused persons but were also closely related to the deceased, and they had reasons to implicate the accused persons falsely---Circumstances established that the prosecution had badly failed to bring home a charge against the accused beyond any reasonable doubt---Appeal against conviction was accordingly allowed.
(e) Penal Code (XLV of 1860)---
----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence and crime empties---Inconsequential---Accused was charged that he along with his co-accused committed murder of the brother of complainant by firing---Per the prosecution case, the Investigating Officer deposed that on 28.06.2017, he collected 13 crime empties of 9MM pistol which were secured from the place of occurrence and on the same day he handed over a sealed parcel of the 13 crimes empties to Head Constable for onward transmission to the office of Forensic Science Agency---HC deposed that he handed over a sealed parcel of the 13 crimes empties to the Investigating Officer, on 03.07.2017---Investigating officer deposed that on 03.07.2017, he received a sealed parcel of the 13 crimes empties from Head Constable and deposited the same on the same day with the office of Forensic Science Agency---Investigating Officer deposed that he arrested accused on 14.08.2017---On 24.08.2017, accused got recovered a pistol 9-MM along with two magazines and two live bullets and on the same day, the Investigating Officer handed over a sealed parcel of the pistol 9-MM (P-4) to Head Constable for onward transmission to the office of Forensic Science Agency---Head Constable deposed that he handed over a sealed parcel of the pistol 9-MM to the Investigating Officer on 29.08.2017---Investigating Officer deposed that on 29.08.2017, he received a sealed parcel of pistol 9-MM from Head Constable and deposited the same on the same day with the office of Forensic Science Agency---Sealed parcel of case property was handed over to the Investigating Officer, but he had not stated that he received back pistol 9-MM and the 13 crimes empties from the office of Forensic Science Agency---Entire prosecution evidence was silent on that aspect of the case---Thus, there was no link evidence to prove that the pistol 9-MM recovered from the accused and 13 crime empties secured from the place of occurrence were again received back from Investigating Officer or any other Police Officer by the moharrar Malkhana, and the same were re-deposited in the Malkhana or handed over to the Moharrar---On 01.09.2018, 13 crime empties and on 15.11.2018, the pistol 9-MM were produced in the testimony of witnesses---Head Constable or any other prosecution witness had not stated that they collected 13 crime empties and pistol from the office of Forensic Science Laboratory and re-deposited the same with the malkhana---Thus, it casted doubt whether it was the same case properties i.e. pistol and crime empties respectively, that were recovered from the accused and secured from the place of occurrence, and, after that sent to Forensic Science Laboratory or whether it was case property of some other case---Prosecution did not prove that case property 13 crime empties and pistol were kept in safe custody and its benefit would go to the accused---Circumstances established that the prosecution had badly failed to bring home a charge against the accused beyond any reasonable doubt---Appeal against conviction was accordingly allowed.
(f) Penal Code (XLV of 1860)---
----Ss. 302(b), 324 & 34---Qanun-e-Shahdat (10 of 1984), Art. 129(g)---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Bullet pulled from dead body not sent for forensics---Consequential---Accused was charged that he along with his co-accused committed murder of the brother of complainant by firing---Record showed that the Medical Officer, who conducted the postmortem of the dead body of the deceased, recovered one metallic bullet from the left lung and handed it over to the police---Said metallic body was neither sent to the Forensic Science Laboratory for its comparison with the pistol recovered at the pointing of the accused nor the same was exhibited in evidence of the prosecution---Thus, it was established from the evidence of Police Constable and postmortem report that Medical Officer recovered the metallic body from the left lung of the deceased and handed it over to the police, therefore, an adverse inference was to be drawn that had the metallic body been sent to Forensic Science Laboratory for its comparison then the said report would have been unfavorable to the prosecution---Circumstances established that the prosecution had badly failed to bring home a charge against the accused beyond any reasonable doubt---Appeal against conviction was accordingly allowed.
(g) Penal Code (XLV of 1860)---
----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Motive not proved---Accused was charged that he along with his co-accused committed murder of the brother of complainant by firing---Motive behind the incident was that brother-in-law of the complainant was a Police Officer and was martyred in 2010---Property left by said Police Officer was illegally possessed and usurped by co-accused and his sons, and the issues relating to said property were being looked after by the widow of the deceased and brother of the complainant/ deceased; and due to said grudge, all the accused persons, with a common object, murdered the deceased---Prosecution case in that regard was vague and could hardly inspire confidence---Complainant disclosed during cross-examination that some other litigation was pending before the Court---About 15/20 days earlier to the murder of the deceased, a compromise was effected before District Collector regarding land left between the parties---Documentary evidence on the record revealed that no litigation was pending between the accused persons and the widow of deceased---Investigating Officer admitted during cross-examination that he had not interrogated widow of the deceased---Investigating Officer deposed during cross-examination that the motive was stated to be the property of widow of deceased but he did not record the statement of that widow in support of motive part---Complainant deposed during cross-examination that both wives of deceased and his children were alive but they did not state any of them as his witness; that however, they produced one of the wives of deceased during the proceedings before the police---Thus, an adverse inference was to be drawn within the meaning of Art. 129(g) of Qanun-e-Shahadat, 1984 that had widow of deceased appeared in the witness box she would have been unfavourable to the prosecution---Alleged motive was an afterthought and had not been proved by any credible evidence---Circumstances established that the prosecution had badly failed to bring home a charge against the accused beyond any reasonable doubt---Appeal against conviction was accordingly allowed.
Lal Khan v. The State 2006 SCMR 1846 and The State and others v. Abdul Khaliq and others PLD 2011 SC 554 rel.
Ch. Muhammad Ashraf Kamboh, Amer Shahbaz Siddiqui, Ms. Maryem Yasin Khan and Sajid Hussain Chaudhary for Appellant.
Rana Ahsan Aziz, Additional Prosecutor General with Ashraf, ASI for the State.
Nasir-ud-Din Khan Nayyar for the Complainant.
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