RIAZ Versus State
This criminal appeal challenges the conviction and sentence of the appellants under section 302(b) and section 109 of the Pakistan Penal Code 1860, as handed down by the Sessions Judge. The core legal questions involve evaluating whether the prosecution successfully established its case beyond reasonable doubt in the face of discrepancies between the ocular account and medical evidence, delayed or deliberated lodging of the F.I.R., and pre-existing enmity between the parties. The Lahore High Court held that the presence of the eye-witnesses at the spot was doubtful, material contradictions existed between the medical report showing three fire-arm injuries and the single shot alleged in the F.I.R., and co-accused had already been acquitted on the same evidence. The court laid down the principle that where ocular testimony irreconcilably conflicts with medical evidence and is unsupported by independent corroboration in a background of deep-seated enmity, the conviction cannot be sustained, leading to the acceptance of the appeals and the setting aside of the convictions.
- Whether a conviction for murder can be sustained when there is a material conflict between the ocular account and the medical evidence?
- Does the acquittal of co-accused on the same evidence warrant the extension of the benefit of the doubt to the remaining appellants?
- Whether the presence of deep-seated enmity between the parties requires independent and robust corroboration of the prosecution witnesses?
- Section 302(b), Pakistan Penal Code 1860
- Section 109, Pakistan Penal Code 1860
- Section 382-B, Code of Criminal Procedure 1898
- Section 342, Code of Criminal Procedure 1898
KHAWAJA MUHAMMAD SHARIF, J .---This judgment will dispose of Criminal Appeal No.1485 of 2005 filed by Riaz appellant and Criminal Appeal No.1484 of 2005 filed by Waryam appellant. They were convicted under section 302(b)134, P.P.C. and sentenced to life imprisonment each and to pay Rs.200,000 each in default thereof two years' S.I. each with benefit of section 382-B, Cr.P.C. by learned Sessions Judge, Tandlianwala vide judgment dated 6-7-2005.
Waryam appellant was also convicted under section 109, P.P.C. read with section 302, P.P.C. and sentenced to life imprisonment. Both the sentences were ordered to run concurrently.
2. Occurrence in this case had taken place at Sham Wela on 14-1-2005 within the revenue estate of Chak No.399/GB which is at a distance of 14 kilometers from Police Station Tandlianwala, District Faisalabad while the matter was reported to the police by Mst. Sattan at 7-10 p.m., the same day and the formal F.I.R. Exh.PD/1 was recorded by Zulfiqar Ali 879/H.C.
3. Briefly stated the facts of the case as disclosed in the F.I.R. Exh.PD/1 are that daughter of complainant Mst. Bakhat alias Nanni was married with Waryam alias Dhoime. Mst. Bakhat alias Nanni had been enticed away with one Jaffar. She had returned after a few days. On the day of occurrence complainant along with Allah Yar and Iqbal P.Ws. had gone to see her daughter in Chak No.399/GB and all were present in her house. When in the evening the complainant and the P.Ws. were sitting in the house of Mst. Bakhat alias Nanni and were talking with each other, all of a sudden Riaz son of Shandat came there on a motorcycle armed with .12 bore gun and soon after his arrival he fired with his gun straight at Mst. Bakhat alias Nanni daughter of the complainant which landed on her chest and she died at the spot. This occurrence had taken place on the abetment of Waryam Zaman, Salabat and Mehra accused.
4. Sub-Inspector Nazar Hussain P.W.8 took over the investigation. He after sending the complainant to the police station for registration of formal F.I.R. went to the place of occurrence, prepared injury statement and inquest report, secured the blood-stained earth vide memo. Exh.P.I. On 8-2-2005 he arrested Waryam accused. On 14-2-2005 Waryam accused led to the recovery of .12 bore gun which was taken into possession vide memo. Exh.PE. On 28-2-2005 he also arrested Zaman accused. Finally, the accused mentioned above were sent to face the trial.
5. At the trial prosecution in order to prove its case produced 9 witnesses in all. The learned SPP closed the case of prosecution. The accused in their statements under section 342, Cr.P.C. pleaded false implication. After conclusion of the trial, present appellants were convicted and sentenced as stated above.
6. Learned counsel for the appellants submits that in all there are five accused; that according to F.I.R. only appellant Riaz was present at the spot at the time of occurrence; that there was single fire-shot on the dead body of the deceased while four accused namely Waryam, Zaman, Salabat and Mehra were named as an abettor; that Zaman and Salabat co-accused were acquitted by learned trial Court 'while Mehra accused is proclaimed offender; that no crime empty was recovered from the spot; that Riaz appellant was arrested on 28-9-2005 and no recovery was effected from him. He read before me statement of Dr. Shamim Akhtar P.W.1 and submits that there are three independent injuries on the person of the deceased. Had the eye-witnesses present at the spot they must had noticed three fire shots on the person of the deceased; that there is conflict between ocular account and medical evidence; that Mst. Sattan complainant P.W.6 real mother of the deceased and other witness namely Iqbal first cousin of deceased P.W.7 were not residents of place of occurrence; that the prosecution had miserably failed to prove its case against the appellants. Adds that enmity between the parties has been proved from the record; that in earlier case F:I.R. No.292 dated 24-4-2002 registered in Police Station Tandlianwala Exh.DB in which two brothers of Mst. Sattan complainant have been awarded death sentence; that Iqbal P.W.7 and Allah Yar given up were accused in that case.
7. Learned counsel for the complainant submits that this Court had dismissed application for suspension of sentence of the appellants and the same is sufficient ground for dismissal of appeals of the appellants.
8. Learned APG supports the judgment of learned trial Court.
9. I have heard learned counsel for the parties. Occurrence had taken place on 14-1-2005 at Sham Wela, matter was reported to the police on the same day at 7-10 p.m. Complainant in this case is Mst. Sattan Bibi real mother of the deceased. There are five accused named in the F.I.R. out of which two namely Riaz and Waryam had been convicted and sentenced while Salabat and Zaman were acquitted by learned trial Court. Mehra accused is still at large. Except Riaz appellant none of the accused was present at the spot according to F.I.R. Deceased is Mst. Bakhat alias Nanni who is real daughter of Mst. Sattan complainant. Mst. Sattan was not resident of place of occurrence. According to her statement appellant Riaz came on a motorcycle and fired a shot, which hit near the chest of the deceased. I have gone through the statement of Dr. Shamim Akhtar P.W. who conducted the post-mortem examination on the dead body of the deceased Mst. Bakhat alias Nanni. She had mentioned three independent fire-arm injuries on different parts of body of the deceased. Had the eye-witnesses present at the spot they must have not mentioned only one fire-shot. There is another important factor in this case, that two real bothers of Mst. Sattan complainant have been awarded death sentence in the earlier case. Iqbal P.W.7 and Allah Yar given up P.W. were accused in that case. Before the learned trial Court said F.I.R. was placed on record as Exh.BD. Riaz appellant was complainant in that murder case. Mst. Sattan also made dishonest improvement before the learned trial Court. On the same evidence two accused of abetment Salabat and Zaman have been acquitted by learned trial Court. There is no corroborated and independent evidence against the appellants. Parties were inimical to each other. There is conflict between ocular account -and medical evidence.
10. After having heard learned counsel for the ,parties I am of the considered opinion that eye-witnesses were not present at the spot at the time of occurrence, F.I.R. was lodged after due deliberation and consultation, no recovery was effected from Riaz appellant, two co-accused namely Salabat and Zaman had been acquitted by learned trial Court on the same evidence, both the appeals filed by Riaz and Waryam appellants are accepted and conviction and sentence recorded against them by learned trial Court vide impugned judgment is set aside.. They are behind the bars and they shall be released forthwith if not required to be detained in any other case.
H.B.T./R-21/L ???????????????????????????????????????????????????????????????????????? Appeal accepted.