This matter originated from a murder conviction under Section 302(b) P.P.C., where the petitioner was initially sentenced to death, later converted to life imprisonment by the High Court. The Supreme Court considered a jail petition, converted into an appeal, and a criminal petition for enhancement of sentence. The core legal question revolved around whether the prosecution had proven its case against the petitioner beyond reasonable doubt, particularly concerning the credibility of eyewitnesses and the consistency of the motive. The Supreme Court held that the prosecution failed to establish its case beyond reasonable doubt, citing material improvements in eyewitness testimonies, inconsistencies between the FIR and trial statements, and uncorroborated motive. Consequently, the Court allowed the appeal, set aside the conviction and sentence of the petitioner, and acquitted him. The criminal petition for enhancement of sentence was dismissed as irrelevant after the acquittal.
MANZOOR AHMAD MALIK, J.---Petitioner Khalid Mehmood along with Muhammad Idrees, Fahad Mehmood, Muhammad Asghar , Muhammad Waris alias Shera, Abdul Sattar and Muhammad Sarwar faced trial in case FIR No. 39 dated 05.02.2007, offence under sections 302, 148, 149, P.P.C. registered at Police Station Phillora, District Sialkot. On conclusion of trial, the learned Additional Sessions (Judge, Sialkot, vide judgment dated 07.12.2013, convicted the petitioner under section 302(b), P.P.C. and sentenced him to death, with a direction to pay compensation of Rs.200,000/- to the legal heirs of deceased, in default whereof to undergo SI for six months.
Through the same judgment, the learned trial Court by giving benefit of doubt acquitted co-accused Muhammad Idrees, Fahad Mehmood alias Faku, Muhammad Asghar , Muhammad Waris, Abdul Sattar and Muhammad Sarwar .
Aggrieved of his conviction and sentence, the petitioner filed a criminal appeal before the Lahore High Court, Lahore. A murder reference was also sent by the trial Court for confirmation of sentence of death of petitioner or otherwise. Through the impugned judgment, the learned High Court dismissed the criminal appeal and by converting sentence of death of petitioner into imprisonment for life answered the murder reference in the negative.
Benefit of section 382-B, Code of Criminal Procedure was extended to him. Hence, the instant jail petition.
2. After hearing the learned counsel for the parties at length and perusal of available record with their assistance, it has been observed by us that the occurrence in this case, as per prosecution, took place on 04.02.2007 at Sham Waila. The matter was reported to police through a written application (Ex.PG) of complainant Rukhsana Bibi (widow of Muhammad Aslam), whereafter formal FIR was registered in the intervening night of 4/5-02-2007 at 12.30 hours. The distance between police station and place of occurrence is three kilometers. In the FIR, it is the case of complainant Rukhsana Bibi that after the occurrence, her husband Muhammad. Aslam in injured condition was taken to Sialkot by Muhammad Arshad and Rafaqat Ali for medical aid but he succumbed to injuries on his way to hospital. She (the complainant) has not mentioned in the application (Ex.PG) that she was also accompanying them. In her examination in chief, the complainant Mst. Rukhsa na Bibi (PW8) stated that they (complainant side) arranged a vehicle and shifted Muhammad Aslam (deceased) to Civil Hospital Sialkot where he was taken to emergency but doctor told them that Muhammad Aslam succumbed to injuries on his way to hospital.
In her cross-examination, the complainant (PW8) stated that she along with Arshad Ali (PW9) and Rafaqat Ali took Muhammad Aslam to the hospital. Arshad Ali (PW9) also endorsed this claim of the complainant (PW8). However , nothing is available on record to show that Muhammad Aslam in injured condition was shifted to Civil Hospital Sialkot and was medically examined by a doctor . The postmortem examination on the dead body of Muhammad Aslam (deceased) was conducted in the morning of 05.02.2007 at 7.00 a.m. i.e. after about fourteen hours of the occurrence and after about seven hours of registration of FIR. Dr. Gul Nawaz (PW7) who conducted autopsy of dead body of Muhammad Aslam stated in his cross examination that facility of postmortem examination was available in the hospital round the clock; that relevant police papers, injury statement, application and inquest report were produced before him about 30 minutes prior to autopsy; that delay in postmortem examination was caused due to non-availability of relevant police papers.
3. In the FIR (Ex.PG/2) which was registered on the written application (Ex.PG) of complainant Mst. Rukhsana Bibi, it is her case that she along with her Jaith Muhammad Arshad (PW9) and her Daiwar Rafaqat Ali was standing in front of house of Muhammad Arshad (PW9) and they were talking to each other , whereas her husband Muhammad Aslam (deceased) was proceeding towards cattle shed; petitioner Khalid Mehmoo d along with four co-accused all belonging to Khalid Party and co-accuse d Muhammad Sarwar , Babar Ali and Abdul Sattar belonging to Sarwar Party while armed with their respective firearm weapons were standing in front of house of Muhammad Javaid and hot words were being exchanged between them. Muhammad Aslam (deceased) tried to make them understand but the petitioner and accused of both the parties started straight firing at Muhammad Aslam. Petitioner Khalid Mehmood also fired at Muhammad Aslam . Due to firing of co-accused and Khalid Mehmood, Muhammad Aslam fell on the ground in injured condition, who later on succumbed to injuries. While appearing before the trial Court, complainant Mst. Rukhsana Bibi (PW8) made material improvements in her examination in chief and stated that she and her husband were proceeding to cattle shed; that: accused of both the parties Khalid Party and Sarwar Party were quarrelling with each other; that Muhammad Aslam tried to pacify them and asked petitioner Khalid Mehmood not to use abusive language, whereupon petitioner fired at Muhammad Aslam, which fire hit him on left side of his chest; that other accused resorted to aerial firing and raised lalkaras . She was duly confronted with improvements and the relevant portion of her cross-examination highlighting those improvements is as under:- "........... It got recorded in application Ex.PG that on the day of occurrence I and my husband were proceeding towards cattle-shed. Confronted with Ex. PG where it is not so recorded rather proceeding of my husband towards cattle-shed is mentioned I got recorded in application Ex. PG that my husband asked Khalid accused not to use abusive language whereupon Khalid accused present in court with his weapon fired at left side of chest of my husband. Confronted, where it is not so recorded. I got recorded in application Ex.PG that my husband sustained injury on left side of his chest. Confronted with Ex. PG where the seat of injury is not mentioned. I got recorded in my application Ex. PG that then all the remaining accused persons made aerial firing and manages escape while raising Lalkara. Confronted with Ex. PG, where it is not so recorded ......... I do not remember whether I got recorded in application Ex.PG that the reason for committing murder of my husband was that accused Khalid used abusive language and my husband restra ined him not to use abusive language. Confronted with Ex.PG, where it is not mentioned. I do not remember that whether I got recorded in application Ex.PG that we arranged for a vehicle and shifted my husband to civil hospital Sialkot where he was taken to emergency and doctor told that my husband was already succumbed to the injuries. Confronted with Ex.PG, where it is not so recorded .................."
The complainant Mst. Rukhsana Bibi (PW8) in her cross-examination admitted that the occurrence took place in front of house of Javaid who was Chachazad of her husband and said Javaid was never joined with the investigation of the case nor did they (complainant side) produce him before the police.
4. The other eyewitness Arshad Ali (PW9) who was brother of deceased Muhammad Aslam and faith of complainant went: a step further and in his examination in chief, gave full details of the weapons the petitioner and his co-accused were carrying. He also stated in his examination in chief that petitioner was using filthy language and when the deceased Muhammad Aslam forbade him, he in anger fired at him which fire hit Muhammad Aslam on left side of chest. He was confronted with his statement recorded by police (Ex.DA) wherein neither the details of weapons the petitioner and his co-accused were carrying, nor the fact that fire so shot by petitioner hit Muhammad Aslam on left side of chest or claim of complainant side that after the occurrence they took Muhammad Aslam in injured condition to hospital at Sialkot where he was examined by a doctor are mentioned. He was also confronted with his statement (Ex.DA) where he claimed that both the parties Khalid Party and Sarwar Party made firing at Muhammad Aslam (deceased). He (PW9) admitted in his cross-examination that it was in his knowledge that Sarwar etc were not found connected with the commission of offence. He further admitted that they (complainant side) did not make any application before higher of ficers against the highhandedness of police.
5. In the FIR, it is the case of prosecutio n that the petitioner and his co-accused (of both parties i.e. Khalid Party and Sarwar Party) made firing at deceased Muhammad Aslam. However , Dr. Gul Nawaz (PW7) observed a single entry wound on the front of left upper chest of deceased. The learned trial Court by giving benefit of doubt acquitted co-accused Muhammad Idrees, Fahad Mehmood alias Faku, Muhammad Asghar , Muhammad Waris alias Shera, Abdul Sattar and Muhammad Sarwar . No appeal or petition against that acquittal has been filed by the complainant or the State.
6. No empty was secured from the spot by the investigating agency , therefore, the report of FSL is confined to working condition of 44 bore rifle allegedly recovered at the instance of petitioner . This piece of evidence has rightly been discarded from consideration by the learned High Court in Para 13 of the impugned judgment.
7. A specific motive was set out by the prosecution in the FIR inasmuch as hot words were being exchanged between Khalid Party and Sarwar Party in front of house of Javaid. Muhammad Aslam tried to make them understand whereupon accused from both the parties including the petitioner started firing at deceased Muhammad Aslam and caused his death. In her examination in chief, complainant Mst. Rukhsana Bibi (PW8) changed the motive and stated that Muhammad Aslam tried to pacify both Khalid Party and Sarwar Party who were quarrelling with each other and asked the petitioner not to use abusive language, whereupon the petitioner in anger fired at him which hit Muhammad Aslam on left side of chest. There is no detail whatsoever why Khalid Party and Sarwar Party were quarrelling with each other; why both the parties at once started firing at the deceased; why and in which capacity deceased Muhammad Aslam intervened to pacify both the parties. The answers to these questions are not available on record. In these circumstances, the learned High Court has rightly not believed the motive set out by the prosecution in Para 12 of the impugned judgment.
8. All the circumstances highlighted abov e lead us to a definite conclusion that the presence of eye-witnesses at the place of occurrence at the relevant time is not above board and prosecution has failed to prove its case against the petitioner beyond reasonable doubt. Therefore, the instant jail petition is converted into an appeal and the same is hereby allowed. The conviction and sentence of appellant Khalid Mehmood is set aside. He is acquitted of the charge framed against him. He is behind the bars and is ordered to be released forthwith, if not required to be detained in any other case.
Criminal Petition No. 528-L of 2017
9. Since we have concluded in the preceding paragraph that prosecution case against respondent No.2 Khalid Mehmood is doubtful and have acquitted him of the charge, therefore, instant criminal petition for enhancement of his sentence has become relevant which is dismissed and leave to appeal is refused.
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