This criminal appeal and petition for leave to appeal arose from a murder case registered under Section 302/34 PPC. The trial court had convicted the appellant, sentencing him to death, and his father to life imprisonment. On appeal, the High Court reduced the appellant's sentence to life imprisonment and acquitted the father. The Supreme Court, upon reappraising the evidence, identified several critical flaws in the prosecution's case. These included an unexplained five-hour delay in reporting the incident despite the proximity of the police station, lack of credible evidence regarding the source of light in a nighttime occurrence, and significant contradictions between ocular accounts and medical evidence regarding the time of death. Furthermore, the prosecution failed to recover crime empties or provide a forensic report for the weapon, and the motive remained unproven. The Court also noted that evidence of abscondence was not put to the accused during his Section 342 Cr.P.C. statement. Consequently, the Court extended the benefit of doubt to the appellant, setting aside his conviction, and dismissed the complainant's petition for enhancement of sentence and against the co-accused's acquittal.
MANZOOR AHMAD MALIK, J.---Ghulam Abbas appellant in Criminal Appeal No.9-L of 2020 and respondent No. 1 in Criminal Petition No.223-L of 2014 along with his father Mulazim Hussain respondent No.2 in Criminal Petition No.223-L of 2014 faced trial before a learned Additional Sessions Judge-II, Bhakkar in case FIR No.283/2008 dated 19.06.2008 offence under section 302, P.P.C. read with section 34, P.P.C. registered at Police Station Saddar Bhakkar , District Bhakkar . After regular trial, Ghulam Abbas appellant was convicted under section 302(b)/34, P.P.C. and sentenced to death. He was also ordered to pay compensation to the tune of Rs.1,00,000/- (rupees one hundred thousand only) to the legal heirs of the deceased and in default of payme nt of the compensation amount to undergo six months' simple imprisonment. Through the same judgment Mulazim Hussain was convicted under section 302(b), P.P.C. and sentenced to imprisonment for life. He was also ordered to pay compensation to the tune of Rs.50,000/- (rupees fifty thousand only) to the legal heirs of the deceased. Against their convictions and sentences Ghulam Abbas and Mulazim Hussain filed a joint criminal appeal whereas Altaf Hussain complainant filed a criminal revision seeking enhancem ent of the sentence of Mulazim Hussain and also for enhancement of the amount of compensation imposed upon both the convicts. The learned trial court also transmitted murder reference for confirmation or otherwise of the sentence of death awarded to Ghulam Abbas convict. All these matters were taken up together by a learned Division Bench of the Lahore High Court and through the impugned judgment, appeal to the extent of Ghulam Abbas was dismissed, however , his sentence of death was reduced to imprisonment for life with benefit of section 382-B, Code of Criminal Procedure. The amount of compensation and the sentence of imprisonment in default thereof as ordered by the learned trial court was maintained. Murder reference was answered in the negative and the sentence of death awarded to Ghulam Abbas convict was not confirmed. The said appeal to the extent of Mulazim Hussain was allowed and he was acquitted of the charge while extending him benefit of doubt. Criminal revision filed by the complainant was dismissed. Being dissatisfied with the verdict of learned appellate court, Ghulam Abbas convict preferred a petition from jail wherein leave was granted vide order dated 16.01.2020 for reappraisal of the entire evidence. Through the same order , Crl Petition No.223-L of 2014 filed by the complainant for enha ncement of sentence of Ghulam Abbas and against acquittal of Mulazim Hussain was ordered to be heard along with the appeal arising out of the jail petition.
2. According to the prosecution case, on the lalkara of his father namely Mulazim Hussain, Ghulam Abbas appellant while armed with a rifle fired three shots at Muhammad Iqbal, brother of complainant, which proved fatal.
3. We have heard arguments of learned counsel for the appellant as well as learne d Additional Prosecutor General for the State assisted by learned counsel for the complainant and have also gone through the available record.
4. As per contents of FIR, the occurrence in this case took place on 19.06.2008 at 01.40 a.m. and the matter was reported to the Police on the same morni ng at 07.00 a.m. and as such there is a delay of more than five hours in reporting the crime to the Police whereas Police Station was situated at a distance of just six kilometers from the place of occurrence. No explanation whatsoever was furnished by the complainant for this delay in reporting the crime to the Police. Hameed Ullah Khan SI (PW.15) who investigated the case stated during his cross-examination that he reached at the place of occurrenc e at about 05.00 a.m. and he had completed the police proceedings by 06.30 p.m. In the circumstances, chance s of deliberations and consultations before reporting the matter to the Police cannot be ruled out.
5. Admittedly , it was a night time occu rrence. According to the contents of FIR and statements of both the witnesses of ocular account, they had witnessed the occurrence in the light of bulb erected at the place of occurrence. Hameed Ullah Khan SI (PW.15) admitted during his cross-examination that he had not recorded the availability of bulb in inspection note. He further admitted that in the scaled site plan (Exh.PE and Exh.PE/1) the Patwari had not shown the availability of bulb. Moreover , it was claimed by both the witnesses of ocular account that they were sleeping in the compound of their house with Muhammad Iqbal (deceased) and other family members and they gave the number of cots as ten, however , Hameed Ullah Khan SI (PW.15) admitted during his cross-examination that he had shown only one cot at the spot which was available there at the time of his visit.
6. This FIR was registered for the offence under section 302, P.P.C. read with section 34, P.P.C. but it was nowhere mentioned in the FIR that after how much time of receiving injuries Muhammad Iqbal died. Likewise, the complainant while making his statement before the learned trial court, in his examination in chief did not state that his brother died after receiving fire shots. The witness of ocular account namely Atta Muhammad (PW.11) while appearing before the learned trial court after narrating the episode of firing stated that Iqbal succumbed to the injuries at the spot. Incident took place at 01.40 a.m. Dr. Nazar Hussain MO (PW.6) who conducted autopsy on the dead body opined that probable time between injury and death was about 15 minutes. During his cross- examination he stated that in the post mortem report (Exh.PE) he had recorded the time of death of the deceased Iqbal at 06.30 a.m. If fifteen minutes are counted back from 06.30 a.m. then Iqbal might have died at 06.15 a.m. i.e. one hour and fifteen minutes after the arrival of Hameed Ullah Khan SI (PW.15) at the spot. Therefore, the medical evidence does not fully advance the case of prosecution rather creates dents in its veracity .
7. Motive behind the occurrence accord ing to the contents of the FIR was that Ghulam Abbas (appellant) had borrowed Rs.500,000/- (rupees five hundred thousand only) from Muhammad Iqbal (deceased) and had executed a pronote in this respect and on the basis of that pronote a civil suit against Ghulam Abbas had been filed by Muhammad Iqbal (deceased). The complainant during the course of cross-examination stated that money dispute was with Iqbal (deceased) and they (the complainant's side) were not present at the time of taking loan and execution of pronote. Hameed Ullah Khan SI (PW.15) stated during his cross-examination that neither the complainant had produced any copy of pronote to prove motive nor he (I.O.) had obtained or asked for the pronote from the complainant in respect of motive. The evidence of motive was, therefore, rightly not believed by the learned appellate court for valid reason s which are not open to any exception upon our of own independent reappraisal of evidence.
8. According to the prosecution the appellant was armed with a rifle at the time of occurrence and he fired three shots at the deceased but no crime empty was collected from the place of occurrence and no report of Forensic Science Laboratory is available on record even to establish whether the kalashnikov allegedly recovered from the appellant at the time of his arrest was in working order or otherwise.
9. It is case of the prosecution that after the occurrence, Ghulam Abbas and his co-accused Mulazim Hussain remained fugitive from law. Non-bailable warrants of arrest, reports thereon as well as the proclamation issued against the appellant and his co-accused and reports thereon were not put to Ghulam Abbas (appellant) while examining him under section 342, Code of Criminal Procedure, therefore, the same cannot be used against the appellant to maintain his conviction and sentence on a capital charge, which even otherwise is merely a supportive piece of evidence.
10.In view of the above, prosecution case against Ghulam Abbas appellant is doubtful in nature therefore this appeal is hereby allowed. Ghulam Abbas (appellant) is acquitted of the charge. He is in jail and is ordered to be released forthwith if not required to be detained in any other case.
11. Since we have concluded that the prosecution case is doubtful in nature, therefore, criminal petition filed by the complainant for enhancement of the sentence of Ghulam Abbas respondent No.1 and assailing acquittal of Mulazim Hussain respondent No.2 has no merit which is dismissed accordingly by refusing leave to appeal.