Najaf Ali Shah vs The State

SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Petitioner along with two co-accused was tried in the case registered vide FIR No.03 dated 02.01.2009 under sections 302, 449, 148, 149, P.P.C. at Police Station Saddar Lalamusa, District Gujrat for committing triple murder . The learned Trial Court vide judgment dated 20.11.2013 while acquitting one co-accused namely Muhammad Razzaq, convicted the petitioner and co-accused Tanveer Hussain Shah under sections 302(b)/34, P.P.C. and sentenced them to death on three counts. They were also directed to pay compensation of Rs.300,000/-- on three counts to the legal heirs of each deceased or in default thereof to further undergo six months' SI on three counts. The learned Lahore High Court, Lahore, vide impugned judgment dated 16.02.2017 while maintaining the conviction of co-accused Tanveer Hussain Shah, altered the death sentence awarded to the petitioner into imprisonment for life. He was also given the benefit of section 332-B, Cr.P.C., co-accused Tanveer Hussain Shah had filed Jail Petition No. 159 of 2017 before this Court but since he had died on 06.01.2018, his jail petition stood abated by this Court vide order dated 23.01.2019.

2. Briefly stated the prosecution story is that on the fateful day and time the complainant along with some other women folk and deceased Touqeer Hussain Shah, Shabbir Hussain Shah and Ashiq Hussain Shah were sitting in their Dera when petitioner along with co-accused while armed with firearms entered into their Dera. Tanveer Hussain, co-accused, raised lalkara that the deceased be done to death as they are not giving him his share in inheritance. Thereafter , he made a fire shot his pistol hitting Ashiq Hussain Shah at his nose. The petitioner made fire shot which landed on the head of Ashiq Hussain Shah. Tanveer Hussain made fire shots which landed on the right shoulder , back side of left wrist, left and right knees of Touqeer Shah. Anothe r shot made by the petitioner hit Shabbir Hussain Shah on upper side of left eye, right eye brow and on back side of head. After sustaining injuries, the victims fell on the ground and the accused fled away from the scene of occurrence. Motive behind the occurrence was that co-accused Tanvir Hussain Shah was a man of criminal antecedents and the deceased used to forbade him from criminal activities. The co-accused Tanvir Hussain had also demanded share in the property .

Due to this grudge, they committed the aforesaid occurrence resulting into death of three innocent persons. During course of investigation, the Investigating Officer found the accusation against the accused as correct as such a report was prepared under section 173, Cr.P.C., which was en-routed to the court of competent jurisdiction in terms of section 190(2), Cr.P.C. The learned Trial Court on receipt of challan while taking cognizance of the offence framed charge against the accused perso ns placed in column No. 3 of the report vide order dated 20.05.201 1. The prosecution in order to prove its case produced as many as 16 prosecution witnesses. Thereafter , the petitioner got recorded his statement under section 342, Cr.P.C. wherein he categorically denied the allegations levelled against him and claimed that he has been falsely implicated in this case against the actua l facts and circumstances of this case. The petitioner answered the question "why this case against you" in following terms:- "As a matter of fact I have been falsely implicated in this case. Tanveer Shah accused is my real father . Due to nefarious activities of clan of my father my mother took divorce from Tanveer Shah and took me to their parents. I was brought up by my maternal grand parents residing at Lalamusa. Due to the family disputes. I have been falsely implicated in this case. Most of the legal heirs of deceased persons have forgiven me and got their statements recorded in the court."

3. The petitioner has also taken the first plea before the Investigating Officer in the abovesaid terms, which was duly reported by the investigating Officer. However , the petitioner opted not to appear in his defence as a witness under section 340, Cr.P.C. to disprove the allegations levelled against him and claimed his innocence as stated above.

4. Learned counsel for the petitioner inter alia contended that the petitioner has been falsely implicated in this case by the complainant due to male fide reasons; that the prosecution witnesses are related inter se and were inimical towards the petitioner; that there are major discrepancies in the statements of PWs, therefore, their testimony could not be relied upon to sustain conviction of the petitioner; that the occurrence took place in dark hours of the day but no source of light has been mentioned in the FIR; that there is a delay of about 16 hours in lodging the complaint and the postmortem examination and that the petitioner being innocent deserves to be acquitted.

5. On the other hand, learned Additional Prosecutor General supported the impugned judgment. He contended that the prosecution has successfully proved its case against the petitioner beyond any reasonable shadow of doubt; that the presence of the PWs at the scene of occurrence was natural as they were inmates of the house; that the PWs remained consistent on all material particulars of the case and there is no discrepancy in their statements and that empties recovered from the place of occurrence matched with the weapon of offence recovered at the instance of the petitioner .

6. We have heard 'learned counsel for the petitioner and have perused the record of the case.

7. Before proceeding further , it would be in order to reproduce paragraph 21 of the impugned judgment wherein the learned High Court has dealt with the discrepancies in the case of the petitioner , it reads as under:-

21. So far as Najaf Ali Shah appellant is concerned, no injury has been attributed to him (Najaf Ali Shah) on the person of Touqeer Hussain Shah in the FIR Exh.PC/1 recorded on the statement of Mst. Mobina Bibi complainant PW-9 and her attribution to Najaf Ali Shah appellant on the person of Touqeer Hussain Shah deceased in her statement (examination-in-chief) is result of dishonest improvements to his extent. Mst. Saghiran Bibi PW-I0 does not attribute any injury to Najaf Ali Shah appellant on the person of Touqeer Hussain Shah deceased. Likewise, Mst. Mobina Bibi complainant PW-9 and Saghiran Bibi PW-10 stated in their statements that Najaf Ali Shah appellant made fire shot which hit Shabbir Hussain Shah deceased on left and right eyebrow and on head. We have perused Postmortem Report Exh.PF pertaining to Shabbir Hussain Shah deceased and found that medical officer has observed injury No. 1 a lacerated wound on right side of forehead and injury No. 2 a lacerated wound on left side of forehead of Shabbir Hussain Shah deceased attributed to Najaf Ali Shah appellant, which injuries are not the result of firearm weapon rather are blunt edged weapons. Further medical officer did not observe any firearm injury on the head of Shabbir Hussain Shah deceased attributed to Najaf Ali Shah appellant. However , medical officer observed injury No. 1 firearm entry ' wound with blackening 2-cm x 1 cm on right partial region of Ashiq Hussain deceased attributed to Najaf Hussain Shah appellant, which injury is not exclusively cause of death of Ashiq Hussain deceased, but prosecution has proved that Ashiq Hussain deceased received this injury at the hands .of Najaf Ali Shah appellant through the evidence discussed earlier ."

8. We have specifically confronted the learned Law Officer with the above-said findings of the learned High Court but he could not controvert the same from the record. Admittedly , the complainant is the step paternal grandmother of the petitioner and step-mother of the co-accused Tanveer Hussain, who was father of the petitioner and has died in jail. The first plea of the petitioner before the Investigating Officer soon after his arrest was that infact his father , co-accused Tanveer Hussain, had asked him to come to the place of occurrence but he had reached after the incident. This very plea of the petitioner was never taken into consideration by the learned Courts below . According to the own showing of the complainant, the occurrence took place at shamwela in the peak hours of winter i.e. in the month of January whereas no source of light has been mentioned in the FIR. It seems odd that inspite of the arms carried by the accused being freely discharged their overt act at the place of occurrence, the complainant did not receive even a single scratch and instead in the midst of such commotion, she noted with great accuracy the persons who fired and the parts of the body where their respective fires hit the deceased. Close scrutiny of the site plan demonstrates that the dead body of Ashiq Hussain deceased was lying in the compound whereas the other two deceased were done to death in the adjoining room. The prosecution has neither established the source of light nor taken into possession the bulb to substantiate that the PWs had seen the occurrence in the light of the bulb. In this view of the matter , the presence of the PWs who claimed to have seen the occurrence without any hindrance appears to be doubtful. The prosecution story that the assailants had not even made an attempt to cause any injury to the prosecution witnesses enabling them to appear against them during trial also does not appeal to common sense, The brutality of the assailants can be gauged from the facts and circumstances which do not in our view leave any room to consider that they had no intention to cause any injury to the prosecution witnesses when they were so cruel towards the male members of the same family with the same gravity of motive.

The first plea of the petitioner , which was not taken into consideration by the courts below , being admissible evidence under Article 27 of the Qanune-Shahadat Order , 1984 carries weight wherein he has categorically denied the allegations leveled against him. According to Article 27 of the Order , "facts showing the existence of any state of mind, such as intention, knowledge, good faith, negligence, rashness, or good- will towards any particular person, or showing the existence of any state of body or bodily feeling, are relevant, when the existence of any such state of mind or body or bodily feeling is in issue or relevant." The said section renders certain facts relevant, if such facts show the existence of any state of mine indicating one's intention "when the existence of any such state of mind is in issue or relevant. This Court in the case of Raza v. The State (PLD 2020 SC 523) while elaborating the scope of Article 27 of the Qanun-e-Shahadat Order , 1984, has held as under:- "It is an admitted fact that first plea of the accused is admissible in evidence under Article 27 of the Qanun-e- Shahadat Order , 1984 (Order of 1984"). Article 97 of Order 1984 is general principle enabling the Investigating Officer to record the same whereas Article 28 is mere an exception. As a general rule evidence not forming part of the transaction is not admissible wherea s Articles 27/28 are an exception to the said general principle by laying down a rule that admissibility of those facts which might not be tendered in evidence to prove it but these are relevant to prove the status/mind of the person committing it."

9. Mere heinousness of the offence if not proved to the hilt is not a ground to avail the majesty of the court to do complete justice. This is an established principle of law and equity that it is better that 100 guilty persons should let off but one innocent person should not suffer. As the preeminent English jurist William Blackstone wrote, "Better that ten guilty persons escapq, than that one innocent suffer ." Benjamin Franklin, who was one of the leading figures of early American history , went further arguing "it is better a hundred guilty persons should escape than one innocent person should suffer ." All the contradictions noted by the learned High Court are sufficient to cast a shadow of doubt on the prosecution's case, which entitles the petitioner to the right of benefit of the doubt. It is a well settled principle of law that for the accused to be afforded this right of the benefit of the doubt it is not necessary that there should be many circumstances creating uncertainty and if there is only one doubt, the benefit of the same must got to the petitioner . This Court in the case of Mst. Asia Bibi v. The State (PLD 2019 SC 64) while relying on the the earlier judgments of this Court has categorically held that "if a single circumstance creates reasonable doubt in a prudent mind about the apprehension of guilt of an accused, then he/she shall be entitled to such benefit not as a matter of grace and concession, but as of right. Reference in this regard may be made to the cases of Tariq Pervaiz v. The State (1998 SCMR 1345 ) and Ayub Masih v. The State (PLD 2002 SC 1048 )."

The same view was reiterated in Abdul Jabbar v. State (2010 SCMR 129) when this court observed that once a single loophole is observed in a case presented by the prosecution, such as conflict in the ocular account and medical evidence or presence of eye-witnesses being doubtful, the benefit of such loophole/lacuna in the prosecution's case automatically goes in favour of an accused.

10. For what has been discussed above, we convert this petition into appeal, allow it and set aside the impugned judgment. The petitioner is acquitted of the charge. He shall be released, from jail forthwith, if not required in any other case.