Muhammad Rafique alias Neela and another vs The State and others
This criminal petition arises from a judgment of the High Court maintaining the petitioner Muhammad Rafique alias Neela's conviction under Section 302(b) of the Pakistan Penal Code 1860 with an altered sentence of imprisonment for life for the murder of Nazim Hussain, while acquitting his co-accused brothers and upholding the acquittal of his father. The core legal question was whether the High Court could lawfully maintain the conviction of the principal accused based on ocular and medical evidence after acquitting the co-accused. The Supreme Court held that the doctrine of abundant caution permits the partial acquittal of co-accused based on minor injuries without necessitating the rejection of the entire prosecution case against the principal offender. The court laid down the principle that the acquittal of some accused does not invalidate the reliable and corroborated evidence establishing the guilt of the remaining principal accused.
- Whether the acquittal of co-accused mandates the acquittal of the principal accused relying on the same evidence?
- Can the doctrine of abundant caution be applied to sustain a conviction while acquitting other co-accused?
- 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 Singh; they were accused by Mushtaq Hussain (PW-11) for stabbing Nazim Hussain, deceased, 30, to death at 10:30 a.m. on 23.10.2009 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 assigned 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 in-habitation, 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.