Muhammad Rafique alias Neela and another vs State and others
This matter arose from petitions for leave to appeal filed by both the convict and the complainant against a High Court judgment. The convict challenged the confirmation of his conviction under Section 302(b) of the Pakistan Penal Code 1860, arguing that after the acquittal of three co-accused, the same prosecution evidence could not be relied upon to convict him. Conversely, the complainant sought the restoration of the convict's death sentence and the reversal of the co-accuseds' acquittals. The core legal question was whether the acquittal of co-accused based on the doctrine of abundant caution invalidates the entire prosecution evidence against the primary accused who was assigned a specific fatal role. The Supreme Court dismissed all petitions and refused leave to appeal. The Court held that the application of the doctrine of abundant caution to acquit co-accused does not automatically destroy the entire volume of evidence if it remains sufficient to prove the central charge against the primary accused beyond reasonable doubt.
- Does the acquittal of co-accused under the doctrine of abundant caution require the rejection of the entire prosecution evidence against the primary convict?
- Can a conviction for murder be sustained on the same evidence that was deemed insufficient to convict co-accused who played minor or distinct roles?
- Section 302(b), Pakistan Penal Code 1860
Qazi Muhammad Amin Ahmed, J.--Muhammad Rafique alias Neela, Muhammad Naveed and Muhammad Saeed, real brothers inter se, along with their father Jafar Hussain were indicted for homicide by the learned Sessions Judge Toba Tek Sindh; they were accused by Mushtaq Hussain (PW-11) for stabbing Nazim Hussain, deceased, 30, to death at 10:30 a.m. on 3.10.2009 within the precincts of Police Station Kamalia District Toba Tek Singh; Jafar Hussain accused was blamed to have instigated the crime; petitioner is attributed fatal hatchet blow to the deceased; remainders are assign ed abrasions on the back of left upper arm and below right knee,. respectively measuring 2 x 1 cm and 1 x 1 cm.
According to the prosecution, on the fateful day, deceased on a motorbike, was surprised by the accused, in the backdrop of a previous brawl.
The petitioner was returned a guilty verdict vide judgment dated 8.4.2010;. convicted under clause (b) of Section 302 of the Pakistan Penal Code, 1860 and sentenced to death whereas Muhammad Naveed and Muhammad Saeed, co-accused to imprisonment for life for being in the community of intention; Jafar Hussain was acquitted from the charge. The High Court maintained petitioner's conviction albeit with alteration of death penalty into imprisonment for life while acquitting Muhammad Naveed and Muhammad Saeed from the charge vide impugned judgment dated 30.10.2013, vires whereof, are being assailed both by the complainant as well as the convict.
Issues being inter linked, the captioned petitions are being decided through this single judgment.
2. Learned counsel for the petitioner/convict contends that after acquittal of three out of four accused, each assigned a distinct role, there was no occasion for the High Court to rely upon the same discredited evidence qua the petitioner to maintain his conviction. Learned counsel for the complainant, contrarily , not only prayed for reversal of death penalty but also acquittal recorded qua the co-accused on the ground that there was no occasion for the High Court, after it had believed the witnesses, to acquit the respondents assigned a role confirmed by medical evidence merely on a conjectural premise. Learned Law Officer wholeheartedly agreed with the conclusions drawn by the High Court.
3. Heard. Record perused.
4. Petitioner is assigned fatal blow. According to the autopsy report, conducted at 2:30 p.m. same day, it is an incised wound of quite an extensive nature, penetrating into brain cavity; it is consistent with hatchet P-3, found stained with blood, forensically opined that of human origin, recovered pursuant his disclosure on 6.11.2009.
Infliction of the fatal blow at petitioner's hand has unanimously been confirmed by the witnesses; occurrence being a broad daylight affair on a thoroughfare within .the vicinity of inhabitation, inculpatory investigative conclusions, being in line therewith, have not been found by us as open to any legitimate exception. Jafar Hussain, real father of the accused, is saddled with instigation ; he has rightly been acquitted by the trial Court; whereas triviality of abrasions, swayed on the High Court to exercise caution qua Muhammad Naveed and Muhammad Saeed is an equally expedient choice. Doctrine of abundant caution is a silver lining in our jurisprudence to ensure safe administration of criminal justice and application thereof does not necessarily imply destruction of entire volume of evidence, if otherwise found sufficient to sustain the centrality of the charge. Though, the Medical Officer has not been cross-examined during the trial, nonetheless, upon analysis, abrasions came about during the occurrence, admit possibilities, exculpatory in nature. The High Court has been well within remit to let off the respondents; wage settled is conscionable in circumstances. Scales are in balance. Petitions fail. Leave declined.