MUHAMMAD RIAZ and another vs THE STATE
This criminal appeal challenges the conviction and sentence of the appellants, Muhammad Riaz and Mukhtar Ahmad, who were convicted under section 302 read with section 34 of the Pakistan Penal Code 1860 for the murder of Tauraf Shah. The appellants were sentenced to life imprisonment by the Additional Sessions Judge, Kharian. The core legal question was whether the appellants, who were unarmed and only alleged to have raised a Lalkara (incitement), could be held liable for the murder committed by a co-accused who fired the fatal shot and remained an absconder. Upon review, the Court found that the prosecution failed to attribute any overt act to the appellants other than the Lalkara, and noted that the father of the deceased had explicitly stated he did not wish to pursue a criminal case. Consequently, the Court held that the prosecution's case against the appellants was of a doubtful nature. The appeal was accepted, the conviction and sentence were set aside, and the appellants were acquitted, establishing that a Lalkara alone, without further evidence of common intention or participation, is insufficient for conviction in such circumstances.
- Is a conviction under section 302 read with section 34 of the Pakistan Penal Code 1860 sustainable when the only role attributed to the accused is raising a Lalkara?
- Does the absence of an overt act by an accused, coupled with the complainant's desire not to pursue the case, render the prosecution's case of a doubtful nature?
- Can an accused be convicted for murder based solely on the allegation of raising a Lalkara when the fatal shot is attributed to an absconding co-accused?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 342, Code of Criminal Procedure 1898
' This judgment will dispose of Criminal. Appeal No,956 of 1998 MO by Muhammad Riaz and Mukhtar Ahmad, appellants. Both the appellants were convicted under section 302 read with section 34, P.P.C. And, sentenced to imprisonment for life and to pay compensation to the tune of Rs,30,000 each, in default two years' R.I. Vide judgment, dated 20-7-1998 rendered by learned Additional Sessions Judge, Kharian.
2. Briefly stated the facts of the case are that on 22-1-1995 at about 5-45 p.m., Muhammad Younas S.-I. (complainant) along with other police officials was present at Qasba Road near G.T. Road while on patrol duty when he heard the noise of firing. He along with his companions attracted towards the street and witnessed Abdur Razzaq, Tariq Mahmood, both armed with rifles 8 mm, Muhammad Riaz and Mukhtar Ahmad firing while standing on the roof of Abdur Razzaq. It was also alleged in the F.I.R. That Muhammad Riaz and Mukhtar accused were raising talkaras that Tauraf Abbass should be taught a lesson for breaking the legs of Abdur, Razzaq. A shot fired by Abdur Razzaq hit on the neck towards left of Tauraf Shah and he on his way to hospital, succumbed to his injury.
3. The investigation was taken over by Muhammad Younas S.I. (P.W.6). He prepared the injury statement (Exh.P.E.), inquest report (Exh.P.F.) of the deceased, from the place of occurrence, took into possession the blood-stained earth vide memo. Exh.P.C. And on 23-1-1995 arrested Abdul Razzaq. The accused while in custody led to the recovery of 8 mm rifle, which was taken into possession, vide memo. Exh.P.H. Tariq Mahmood accused also on the same day got recovered rifle 8 mm which was secured vide memo. Exh.P.I. Later on, the accused were put to face the trial.
4.. At the trial, prosecution in order to prove its case produced nine witnesses in all. The learned D.D.A. Tendered in evidence report of the Chemical Examiner (Exh.P.J.), report of the Serologist (Exh.P.K.), report of the Forensic Science Laboratory (Exh.P.L.) and closed the case of the prosecution. The accused in their statements under section 342, Cr.P.C. Denied the case of prosecution evidence and pleaded false implication. After conclusion of the trial, both the accused were convicted and sentenced as stated above.
5. Learned counsel for the appellants after having read the entire prosecution evidence and other material available on record submits that no overt act whatsoever except the Lalkara was attributed to the appellants; they were empty-handed at the time of occurrence; Abdur Razzaq, to whom the fatal shot was attributed is P.O.; the motive if any was with Abdur Razzaq and not the present appellants and that father of deceased Tauraf Shah had stated before the police (Exh.P.E.) that he did not want to get a case registered against anyone for the murder of his son.
6. Learned counsel for the State though supports the judgment of the trial Court but concedes that only Lalkara was attributed to the appellants.
7. I have heard learned counsel for the parties and have gone through the record with their able assistance. In the F.I.R., which was lodged by Muhammad Younas S.-I., the fatal shot was attributed to Abdul Razzaq accused who is still absconder. Both the appellants were empty-handed at the time of occurrence. The role attributed to both the appellants was that of raising Lalkara. The motive, if any, lay with Abdur Razzaq who is at large. Nothing was recovered from the appellants. I have gone through Exh.P.E., an application addressed to S.H.O. Police Station City Lalamusa wherein Syed Manzoor Hussain Shah, father of Tauraf Shah (deceased in the instant case) has stated that he did not want to get a criminal case registered against anyone for the murder of his son Tauraf Shah.
' Having taken into consideration the role of the appellants and statement made by father of the deceased (Exh.P.E.), I am of the opinion that case against both the appellants is of doubtful nature.
Resultantly, this appeal is accepted, conviction and sentence recorded against both the appellants is set aside and they are acquitted of the charge. Both the appellants are on bail. They shall stand discharged from their bail bonds.