MANZOOR AHMAD MALIK, J.---Criminal Petition No. 80-L of 2016: Petitioner Umer Khurseed and his co-accused Nashit Masood faced trial in a private complaint instituted by the complainant Syed Tufail Ahmad, offence under sections 302, 109, 34, P.P.C., for the murder of his son Sheryar. On conclusion of the trial, the learned trial Court, vide its judgment dated 31.05.2014 convicted the petitioner under section 302(b), P.P.C. and sentenced him to suffer imprisonment for life. He was also directed to pay compensation of Rs.500,000/- to the legal heirs of the deceased, under section 544-A, Code of Criminal Procedure, in default whereof to undergo SI for six months. Benefit of section 382-B, Code of Criminal Procedure was extended to him. The learned trial Court, however, acquitted the co-accused of the petitioner namely Nashit Masood, by giving him the benefit of doubt. Aggrieved of his conviction/sentence, the petitioner filed a criminal appeal, whereas the complainant filed a criminal revision for enhancement of sentence of the petitioner before the learned Lahore High Court, Lahore. Both the matters were heard together and through the impugned judgment, the criminal appeal of the petitioner as well as the criminal revision filed by the complainant stands dismissed. It is relevant to mention here that the complainant did not file any appeal against the acquittal of co-accused Nashit Masood and his acquittal has attained finality.
2. We have heard learned counsel for the petitioner, learned counsel for the complainant and learned Additional Prosecutor General at length and have perused the available record with their assistance.
3. Initially the matter was reported to the police by the complainant through his written complaint (Ex.DA) on the basis whereof formal FIR was registered. However, afterwards being dissatisfied with the investigation of the case, the complainant filed a private complaint (Ex.PA), wherein after conducting preliminary enquiry, the learned trial Court, vide order dated 09.02.2010, summoned the petitioner and his co-accused Nashit Masood (since acquitted) to face trial. The contents of the private complaint have been given in Para 5 of the judgment of the learned trial Court, which reads as under:- "5. Complainant filed this private complaint on 03.12.2009 against three accused mentioning therein that his son Sheryar was serving in apex call center, accused Nashit Masood and Tayyaba Sohail were also serving in the same office. Umer Khursheed had illicit relation with Tayyaba Sohail, who used to visit apex call center to see Nashit Masood and also used to cut dirty jokes with Tayyaba Sohail. Sheryar deceased as well as his other fellows used to forbid the deceased, upon which Umer Khursheed used to threaten the deceased. Some days prior to the occurrence, deceased Sheryar and his fellows disgraced Umer Khursheed accused on his visit to the office and Umer Khursheed had issued threat of murder to Sheryar. On 21.02.2009 Sheryar deceased had not visited his office due to holiday but accused: Tayyaba Sohail, Umer Khursheed and Nashit had already hatched up a conspiracy of the murder of Sheryar and according to their plan Umer Khursheed and Nashit accused reached in the park where Nashit had informed Umer Khursheed that Tayyaba Sohail had called her that she was bring (sic) Sheryar upon which Umer Khursheed while tapping his pocket asked Nashit Masood to tell her that they were ready. The said conversation was heard by P.W. Sohail (sic.) a security guard of the park as soon as Sheryar along with his friends Jawad Malik and Ali Zeeshan arrived in the park, Tayyaba Sohail accused in the company of one Sadia, who also accompanied Sheryar to, the park went forward and while reaching near her co-accused Umer Khursheed and Nashit told them that Sheryar was approaching and they should complete their task upon, which Nashit Masood took Sheryar into clasp and Umer Khursheed while bring out a pistol from his pocket made a fire at Sheryar which had hit him who fell down on the ground. The ,occurrence was witnesses by Ali Zeeshan, Jawad Malik, Abdul Ghefar, Sami Ullah and Sohail lqbal. All the said witnesses tried to apprehend the accused but both the accused while brandishing their weapons succeeded to flee away with their co-accused Tayyaba Sohail, the other girl also vanished from the place of occurrence. The occurrence was reported to the complainant by Jawad Malik and Sohail lqbal upon which complainant reached in Jinnah Hospital, where he found Sheryar unconscious due to the shock, the complainant was not in complete senses. The police officials of PS Model Town got drafted an application and after obtaining signatures of the complainant got registered FIR. Subsequently, Sheryar had succumbed to the injuries on 23.09.2009, after getting free from the burial rituals he came to know that police while joining hands with the accused persons had not attributed any specific role to Nashit Masood and had also not implicated Tayaba Sohail as accused. The complainant remained asking the I.O. to arrest Tayyaba Sohail but in vain, thereafter the complainant being aggrieved of the investigation had opted to file the private complaint............."
4. After scrutiny of evidence and hearing learned counsel for the parties, it has been observed by us that the prosecuticn in order to prove the ocular account against the petitioner produced Jawad Malik (PW2) and Sami Ullah (PW3). Jawad Malik (PW2) is the friend of the deceased Sheryar.
Sami Ullah (PW3) was allegedly working as a security guard at the place of occurrence i.e. at the Parking Gate of Central Park Model Town, Lahore, at the relevant time. He was not cited as a witness in the FIR and was introduced by the complainant Syed Tufail Ahmed for the first time in the private complaint. The learned trial Court has already given valid reasons in Para 18 of its judgment for not believing this witness. The said reasons, on our own independent evaluation of evidence available on record, are valid and convincing. Moreover, the other three eye-witnesses cited in the private complaint who allegedly witnessed the occurrence namely Syed Sohail lqbal Rizvi, Ali Zeeshan and Abdul Ghaffar were given up by the prosecution as being unnecessary which is evident from order of the learned trial Court dated 05.07.2011, whereas the complainant Syed Tufail Ahmed, admittedly, is not an eye-witness of the occurrence. Therefore, the most crucial star witness in the matrix of the case is Jawad Malik (PW2) who, as per prosecution, was accompanying the deceased at the relevant time. It is, therefore, imperative to scrutinize the statement of Jawad Malik (PW2) recorded before the learned trial Court with great caution and care particularly keeping in view the fact that he was not believed by the learned trial Court to the extent of acquitted co-accused Nishat Masud, who according to complainant had clasped the deceased Sheryar when the petitioner fired at him.
As earlier discussed, the acquittal of Nish et Masud was not challenged by the complainant any further.
5. Jawad Malik while appearing before the learned trial Court stated that on the day of occurrence at 4.30 p.m. he along with his friend Syed Sheryar Ahmad (deceased) went to K.F.C. at Gulberg, Lahore for lunch; that Mst. Tayyaba (since P.O.) and Mst. Sofia were also with them; that after one hour, Mst. Tayyaba asked them to drop her at Model Town Park; that when they all reached at Model Town Park, two other guys were standing there; that in the car the deceased Sheryar told him the names of those persons as Umer Khursheed and Nishat Masud; that the deceased told him that it would take him fifteen minutes to discuss some misunderstanding with Umer Khursheed; that PW2 Jawad Malik parked his car; that PW2 and deceased alighted from the car; that they went over towards the petitioner and his acquitted co-accused to discuss the misunderstanding; that another person Zeshan (given up PW) also joined them; that within two minutes of the occurrence, acquitted co-accused Nishat Masud caught hold of Sheryar from his shoulder and the petitioner fired with his revolver which hit on the front side of head of Sheryar; that the petitioner also fired at PW2 but he luckily escaped; that he (PW2) ran to a nearby school to save his life; that thereafter he called at 15 and narrated the occurrence to the police; that he also made a telephonic call to the house of the deceased.
6. In his cross-examination, Jawad Malik (PW2) has, stated that despite the fact that police station was about 5 minutes walking distance from the place of occurrence; he did not report the matter to the police. He, however, volunteered that he telephoned on Rescue 15. However, the prosecution has not brought anything on record to establish that any report was made to Rescue 15 by Jawad Malik (PW2). As per his stance, when the petitioner made a second fire at him, he ran for his life and took shelter in a nearby school. During trial he did not disclose the name C of the school. He has admitted in his examination in chief that he did not take the deceased to the hospital in injured condition. He also stated that he did not know as to who had taken the deceased to the hospital in injured condition. According to him, he went to the General Hospital for the purpose of his own treatment and that he went to the General Hospital on a Rickshaw. In his cross-examination he had stated that he parked his vehicle at the Central Park Model Town and also obtained a token in lieu thereof. The said token was not produced by him during investigation or before the learned trial Court. Even otherwise, it seems quite strange as to why he hired a rickshaw after the occurrence to go to General Hospital when his own car, as per his own stance, was available and parked at the place of occurrence. It is his stance that while waiting for his medical checkup, the police reached the hospital where his statement was recorded. It is relevant to mention here that the FIR, which was later own disowned by the complainant, was registered on 22.02.2009, therefore, it seems highly improbable that the statement of an eye-witnesses would have been recorded by the police on the night of occurrence prior to the registration of FIR. Moreover, the prosecution has failed to bring on record any medical certificate which could substantiate the stance of Jawad Milk (PW2) that after the occurrence, he was medically treated at General Hospital, Lahore. In these circumstances, the presence of Jawad Malik (PW2) at the place of occurrence at the relevant time is not free from doubt and his conduct is highly improbable.
7. It has also been observed by us that the motive behind the occurrence has already been disbelieved by the learned trial Court and even the learned High Court has not given any definite finding qua the same. On our own independent evaluation of evidence, it has been observed by us that the prosecution has failed to produce any independent evidence to establish the motive set out in the private complaint. So far as the recovery of revolver at the instance of the petitioner is concerned, the same has also been disbelieved by the learned trial Court in Para 30 of its judgment and for valid reasons. Although, learned High Court while reappraising the evidence has taken an exception to the findings of learned trial Court qua the recovery, but it has been observed by us that as per settled principles of criminal justice, the alleged recovery of pistol and the positive report of the FSL is of no avail to the prosecution primarily for the reason that the crime empties and the revolver were sent to the office of FSL on the same day i.e. 11.03.2009 after the arrest of the petitioner.
8. Medical evidence is merely a supportive/confirmatory piece of evidence because it may give the time of occurrence, seat of injuries, weapon used during the occurrence and time between death and the post mortem examination but it would not tell the name of the culprit who inflicted the injury.
9. In the afore-discussed circumstances coupled with the fact that the FIR was lodged with a delay of more than 18 hours; the private complaint was instituted by the complaint on 03.12.2009 i.e. after more than 9 months of the occurrence; and the acquittal of co-accused Nashit Masood, who was also given a specific role by the complainant in the private complaint, was not challenged by the complainant any further, we are of the considered view that prosecution has failed to prove its case against the petitioner beyond reasonable doubt and the findings of guilt rendered by the learned Courts below against the petitioner are not unexceptionable.
10. For what has been discussed above, the instant criminal petition is converted into an appeal and the same is allowed. The impugned judgments of the learned Courts below are set aside to the extent of appellant Umer Khursheed. He is acquitted of the Charge against him. He shall be released forthwith, if not required to be detained in any other criminal case.
11. The observations given in the instant judgment wilt not, in any manner, prejudice the case of the absconding co-accused of the petitioner-appellant, if any, after his/her arrest before the learned trial Court.
Criminal M.A. No. 37-L of 2018
12. Since vide Para 10 above, the criminal petition filed by the applicant Umer Khursheed has been allowed by us and he has been acquitted of the charge, therefore, the instant criminal miscellaneous application filed by him for suspension of his sentence has lost its relevance, which is dismissed accordingly.
Criminal Petition No. 151-L of 2016
13. Through this petition, the complainant has sought enhancement of sentence of respondent No.2 Umer Khursheed. Since the criminal petition for leave to appeal filed by respondent No.2 against his conviction/sentence has been allowed vide Para 10 above and he stands acquitted of the charge, therefore, the instant petition for enhancement of his sentence has become infructuous which is dismissed accordingly. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.