LIAQAT ALI Versus State

SH. NAJAM-UL-HASAN, J .---Appellant Liaquat Ali son of Khan Muhammad along with five other co-accused was tried by learned Additional Sessions Judge, Okara in case F.I.R. No.174 of 2004 dated 28-7-2004 for the offence under sections 302/324/148/149, P.P.C. registered at Police Station Shahbor, District Okara. The learned trial Court vide judgment dated 12.12.2005 while acquitting all the co-accused convicted the appellant under section 302(b), P.P.C. and sentenced him to death. The appellant was also directed to pay Rs.100,000 (rupees one lac) as compensation under section 544-A, Cr. P. C. , to the legal heirs of the deceased and in default whereof to undergo six months S.I.

2. Challenging his conviction and sentence, the appellant has filed Criminal Appeal No.2041 of 2005, whereas the trial Court has sent a reference (M.R. No.831 of 2005) seeking confirmation of death sentence awarded to the appellant. Both these matters are being disposed of together through this single judgment.

3. In brief the case of the prosecution as narrated in the F.I.R. (Exh.PK) is that Akbar Ali complainant is resident of Chak No.139/10-R and is agriculturist by profession; he is owner of 7 acres of agricultural land which was leased out to Liaquat Ali and the lease period was uptil May, 2004. Upon the completion of said period the complainant asked Liaquat Ali to vacate the possession of the said land but Liaquat Ali got issued stay order from the court of Tehisaldar, Okara. The said stay order was vacated on 12-7-2004 and complainant got possession of his property. On 28-7-2004, complainant along with his brother Riaz Ahmed, Muhammad Arshad, Muhammad Iqbal and Muhammad Afzal resident of Chak No.139/10-R came to Chak No.39-A/4-L, for taking the turn of their water. They stayed on their land for the night and watered their land. At 7-00 a.m., when they were present on their land, Liaquat Ali, Muhammad, Aslam both armed with pump actions, Munir Ahmad armed with sota, Khan Muhammad armed with .12 bore gun, Zulfiqar armed with hatchet, all residents of 46/5-L, Faqiriya resident of 39-A/4-L, armed with Sota, riding on tractor trolley and motorcycle emerged there. Faqiriya accused raised lalkara that they be taught a lesson for occupying the property and for not giving the land on lease to them. Upon which Muhammad Aslam fired with his pump action which hit on the chest of Riaz Ahmed. On receiving fire-arm injury, he fell on the ground. Liaquat Ali fired which hit on the chest of Riaz Ahmed. Aslam fired second shot which landed on the head of Muhammad Arshad. Muhammad Aslam again repeated the fire hitting on the right shin of Muhammad Arshad. On receiving these fire-arm injuries, he fell on the ground. Faqiriya and Munir Ahmad accused inflicted injuries on his person. Zulfiqar son of Liaquat gave hatchet blow to Muhammad Iqbal, which landed on his waist. Khan Muhammad accused continued raising lalkaras and firing that if any body came near, he would be done to death. On hearing noise of firing, many persons of the village came there, who witnessed the occurrence and accused persons while making firing fled away from the spot. Statedly Muhammad Riaz succumbed to the injuries at the spot.

4. This matter was investigated by Muhammad Abbas S.-I. (PW.13). He prepared the injury statement, inquest report of the deceased and after complying with legal formalities got his postmortem examination conducted. He also took into possession blood stained earth from the place of occurrence vide recovery memo Exh.PU. During the spot inspection he took into possession three crime empties of .12 bore gun P.9/1-3 vide recovery memo Exh.PV. He, arrested the appellant Liaquat Ali on 18-9-2004. The matter was also investigated by. Muhammad Ashraf Lashari (P.W.14). On 1-10-2004 Liaquat Ali appellant led to the recovery of motorcycle P-10 and .12 bore gun double barrel P.11 along with his licence P.12 which were taken into possession vide recovery memo Exh.PY. Upon the completion of investigation, the challan was submitted before the trial Court against the appellant and his co-accused. At the inception of trial, Court framed charge against the appellant and his co-accused to which they pleaded not guilty and claimed to be tried. In order to prove the charge against the appellant and his co-accused, the prosecution produced as many as sixteen witnesses, out of them Akbar Ali complainant (P.W.10), Muhammad Arshad (P. W.11) and Muhammad Iqbal (P. W.12) appeared as eye-witnesses of the occurrence, whereas Dr. Sarfraz Ahmed Khan (P.W.7) proved the medical evidence.

5. The trial Court examined the appellant and his co-accused under section 342, Cr.P."C. The appellant while answering to question "Why the case against you and why the P.Ws, have deposed against you?" replied as under:--

"It is a false case. All the P.Ws are closely related inter se and with the deceased. They have made false statements against me and my co-accused. They are the residents of District Khanewal which is at a distance of 150 kilometers from the place of occurrence. They were not present at the spot at the time of occurrence. They have made false statement to support their false and twisted version of the occurrence. Muhammad Iqbal and Arshad P.Ws. did not sustain any injury in this occurrence being not present at the spot at the time of occurrence and they obtained their fictitious medico legal reports in connivance with the doctor and police."

While answering to question "Have you anything else to say?", the appellant made the following reply:--

"I am innocent. The Khasra No.24/1 where the occurrence took place was in my continuous peaceful physical possession on the day of occurrence. Riaz Ahmed deceased brother of Akbar Ali complainant was a police constable who being a desperate person along with others variously armed came to Square No.24 in the area of Chak No.39-A/4-L in order to forcibly take the possession of the disputed land from me which was on lease with me. Akbar Ali complainant has no concern with Khasra No.24/1 which was under my cultivation on the day of occurrence and I had sown Charri crop in that Khasra in those days. Riaz Ahmad deceased was not the owner of the disputed land and he had no agricultural land in Chak No.39-A/4-L where the occurrence took place. Similarly, Muhammad Arshad, Iqbal and Muhammad Afzal who are the residents of District Khanewal had no agricultural land in Chak No.39-A/4-L. Riaz Ahmad deceased and his companions travelled to the place of occurrence from their village in District Khanewal while armed with weapons to take forcible possession of the disputed land which was in my possession. It was a turn of water of the leased land from 4-00 a.m. to 6-15 a. m. My brother Maqbool Ahmad and his servants were watering the said land and were present in Khasra No.24/1. At that time Riaz Ahmad deceased etc., tried to divert our canal water forcibly which was resisted by my brother Maqbool Ahmad and my servants Iqbal and Nazir Ahmad on the day of occurrence at 4-00 AM and Riaz Ahmad deceased etc. made murderous assault on them who while exercising their right of private defence of person and property caused injury to Riaz Ahmad deceased who had a solitary injury on his chest but the complainant party dishonestly attributed this fire arm injury to me and my brother Muhammad Aslam co-accused but during the trial the complainant party exonerated Muhammad Aslam my co-accused of the infliction of the injury by Muhammad Aslam accused on the person of Riaz Ahmad deceased. The complainant party did not know 'Maqbool Ahmad my brother and our servants and as such they did not nominate them as accused in this case. The complainant party dishonestly spread a wide net and falsely involved all the other male members of my family including my father Khan Muhammad accused who is aged about 95/96 years and is an old and infirm person. The then DPO, Okara had been approached as well as highly bribed by the complainant party due to which the D.P.O. Okara was in league with the complainant party and under his order one sided and dishonest investigation was conducted in this case in order to favour the complainant party. Our correct version of the occurrence was not recorded by the police during the investigation. We agitated against the conduct of local police and DPO, Okara but all in vain."

6. The appellant did not make statement under section 340(2), Cr.P.C. however, he tendered in his evidence copy of Rozenamcha Waqiati regarding the incorporation of status quo order dated 14-7-2004 Exh. DC and certified copy of temporary injunction dated 14-7-2004 Exh.DD. The learned trial Court after appraisal of evidence available on the record vide judgment dated 12-12-2005 convicted and sentenced the appellant while acquitting all the other accused as narrated earlier, hence this appeal.

7. Learned counsel for the appellant contends that the occurrence took place at 7-00 a.m., and the place of occurrence is Khasra No.24/1, District Okara and the draftsman has admitted that at the relevant time the same was in possession of the appellant. It is contended that after the decision dated 12-7-2004 the appellant filed an appeal against the order of DDOR Okara in which the status quo order was granted on 21-7-2004; the prosecution has not produced any document to indicate that the possession was handed over to the complainant by the deceased, in these circumstances, the presumption shall be that the possession was with the appellant. He further contends that six persons were nominated in the F.I.R. with the specific role and out of them five were acquitted by the learned trial Court; the allegation of giving injury to Arshad and Iqbal P.Ws were specifically made on Munir Ahmed, Zulfiqar and Faqiria accused and they have been acquitted by the trial Court, charge was framed against the appellant under sections 302/324/337/148/149, P.P.C. and after recording of evidence the appellant was convicted only under section 302 (b), P.P.C., in these circumstances, it is clear that the trial Court did not believe the prosecution case regarding receiving of injuries by injured P.Ws Arshad and Iqbal and even according to the medico legal reports initially no injury with fire arms was found by the doctor on these injured persons but later on the doctor added the word "fire-arm" after going through the report of Radiologist. It is contended that no Radiologist was produced and as such the report regarding the existence of fire-arm injury is not worth relying and the same has not otherwise been believed by the learned trial Court. It is submitted that in fact it was the deceased who tried to trespass into land which was in possession of the appellant and iii that process brother of the appellant namely Maqbool fired in self defence in which the deceased received a single fire arm injury; the witnesses were present but the injuries have been fabricated. It is also contended that there is a contradiction between the medical and the ocular evidence especially with regard to the time of occurrence the medico legal reports of the injured indicate that the incident has taken place at 4-00 a.m., or 12-00 a.m., so in these circumstances these reports do not coordinate with the ocular account; the number of fires made in the F.I.R. were two i.e. one assigned to the appellant and other to acquitted accused Aslam but the doctor has observed only one fire arm injury on the person of deceased. It is contended that while appearing in Court the witnesses have tried to improve their case to bring the same in line with the medical evidence and has stated the fire made by Aslam passed nearby but did not hit the deceased. Learned counsel contends that such improvements by the witnesses is a circumstance which indicates that they are not coming with clean hand and are suppressing the truth; the injury attributed to Zulfiqar acquitted accused was found to have been inflicted by blunt weapon whereas the allegation against him is that he gave hatchet blow on the injured but while appearing in Court the witnesses while improving their statements stated that the hatchet blow was given from the wrong side and even this change in the statement was made just to bring the case in line with the medical evidence and the injury on the person of Iqbal was found to be with blunt weapon and was only an abrasion which was statedly inflicted by hatchet. Learned counsel further contends that even the distance from where the fire was made as mentioned in the site plan does not coordinate with the medical evidence; in the site plan it is stated that the fire was firstly made from thirty eight feet and then from eleven feet whereas the presence of wad underneath the, injury indicates that the fire was made from a close range. Learned counsel contends that the occurrence has taken place when the deceased tried to get illegal possession and in that process he received fire arm injury; the appellant on the very first day has taken a specific stance that the fire on the deceased was made in self defence by the brother of' the appellant namely Maqbool and his servant; the appellant has been falsely involved in this case; three crime empties were recovered from the place of occurrence which were sent to the fire-arm expert and later on the same matched with the gun recovered from Muhammad Aslam acquitted co-accused, the gun recovered from the appellant was his licensed gun and the report of the fire arm expert is only to the extent that it was in working condition, in such circumstances the gun recovered from the appellant has got no legal value, this is a case in which the motive, recovery and even the medical evidence does not coordinate with the ocular account and as the witnesses are police officials so they are not worth relying and the version put forward by the appellant is more plausible; co-accused of the appellant were acquitted and the appeal against their acquittal was filed by the complainant through Criminal Appeal No.215 of 2006 and the same was dismissed by this Court vide order dated 27-6-2006, in these circumstances the acquittal of the co-accused has attained finality. Learned counsel lastly submits that the appellant is entitled to clean acquittal.

8. On the other hand, learned D.P.-G. states that the role attributed to the appellant was that of firing at the deceased when he fell down the fire was made from a very close range and the doctor has observed the fire arm injury on the person of the deceased also contains a wad of cartridge which is a result of close fire and the same coordinates with the ocular account so far as the appellant is concerned; there was contradiction regarding the involvement of Aslam co-accused who had already been given the benefit of the same and was acquitted by the trial Court; the motive is attributed to the appellant, he was tenant of the land and admitted that the stay order was vacated; the doctor has observed that the medico legal reports and the report of the Radiologist indicate the presence of metallic piece underneath the injury of Arshad which coordinates with the ocular account; so far as the appellant is concerned, his case is distinguishable from the case of their acquitted co-accused, he was the main man and to his extent the medical evidence corroborates the ocular account; the recovery of gun at the instance of the appellant also supports the prosecution case; the crime empties were dispatched to the office of fire-arm expert after much delay and the prosecution does not rely on the report of the fire arm expert; the motor cycle was recovered from the appellant which connects him with the commission of offence; the defence taken by the appellant that in fact the fire was made by his brother Maqbool was not substantiated through any evidence and as such the appellant is not entitled to any benefit; in fact the onus was on the appellant to prove the version put forward by him but he has not discharged his duty, as such the appellant is not entitled to any exception.

9. We have heard the arguments of learned counsel for the parties and have also gone through the record.

10. In this case six persons were specifically nominated in the F.I.R. and out of them three were statedly armed with .12 bore guns, whereas the remaining two were armed with Sotas and one person was armed with hatchet. Riaz Ahmed brother of the complainant received a single fire-arm injury on his chest and he died at the spot. It is also the prosecution case that two persons namely Irshad (P.W.11) and Iqbal (PW.12) who were cousin and nephew of the deceased respectively also received injuries in the same occurrence. They were medically examined by the doctor through police at 4-00 p.m. i.e. after nine hours of the occurrence. The doctor observed one abrasion on the person of Iqbal, whereas seven injuries were found on the person of Irshad P.W. and out of them five were contusions, whereas two were the abrasions and one was found to be a lacerated wound which was only skin deep. Initially the doctor did not mention any fire arm injury in the medico legal report and similarly it was not mentioned that the wound was having any inverted or everted margins but later on after seeing the report of Radiologist the doctor declared one of the injuries to be the result of fire arm but no Radiologist was produced in court. The injury on the person of Iqbal injured was assigned to Zulfiqar Ali co-accused who was statedly armed with hatchet and the said injury was only abrasion. While appearing in court the witness stated that Zulfiqar used the hatchet from the wrong side but it was not mentioned in the F.I.R. or in the statements of the witnesses before the police. The injuries on the person of Irshad P.W. were assigned to Munir Ahmed, Faqir Muhammad and Muhammad Aslam acquitted co-accused. Muhammad Aslam was armed with pump action whereas the other two co-accused were armed with Sotas; the injuries on the person of both these injured were so simple in nature that the trial Court disbelieved these witnesses qua the presence of injuries on their person. It has come on record that the deceased, the complainant and even some other witnesses were police officials. No reason for their presence at the place of occurrence has come on record. All the witnesses were the residents of District Khanewal whereas the place of occurrence was in District Okara. So their presence at the relevant time was not natural especially when their residence was at a distance of more than 150 kilometers. The statements of these witnesses cannot be relied upon without any corroboration from an independent source which is missing in this case.

11. In the F.I.R., two fires were allegedly made on the deceased. Muhammad Aslam (co-accused) fired first shot from his pump action and after receiving the same on chest the deceased fell on the ground and thereafter Liaquat appellant fired a second shot on the chest of the deceased who died there and then. The doctor who conducted the postmortem examination on the person of the deceased clearly observed that there was only one fire-arm injury on the person of the deceased and the same was the result of cartridge fire made from a close range. There was blackening around the wound and a wad was also recovered underneath the injury. So the version of the prosecution coming on record through F.I.R. was found in contradiction with the medical evidence. If the deceased after receiving injury at the hand of Aslam co-accused had fallen on the ground and the fire was made by the appellant subsequently, then there should have been two fire arm injuries on the person of the deceased. In these circumstances, the prosecution case as brought on record during the whole investigation is clearly belied by the medical evidence. It has also been observed by us that while appearing in Court, the complainant (P. W.10) and both the injured witnesses P.W.11 and P. W.12 changed their stance and stated that the fire made by Aslam just passed by the deceased and did not hit him and the fire made by the n appellant hit the deceased, whereas in the F.I.R. and even in the statements of the witnesses under section 161, Cr.P.C. the complainant and the said eye witnesses have specifically stated that the fire made by Aslam co-accused hit the deceased on his chest and after receiving the same he fell down and thereafter the appellant Liaquat fired at him. Such a change in the statement of the complainant and the witnesses clearly lead to an inference that the witnesses are trying to improve their case to bring the same in line with the medical evidence. In case titled Akhtar Ali and others v. The State (2008 SCMR 6) the honourable Supreme Court held that:---

"It is also a settled maxim when a witness improves his version to strengthen the prosecution case his improved statement subsequently made cannot be relied upon as the witness has improved his statement dishonestly, therefore, his credibility becomes doubtful on the well know .principle of criminal jurisprudence that improvements once found deliberate and dishonest cast serious doubt on the veracity of such witness."

While guidance from the said dictum of the honourable Supreme Court, we hold that in the present case the improvements/contradictions made by the said eye witnesses while appearing in the trial Court have created serious dents in the prosecution case.

12. Even otherwise, Aslam co-accused who was assigned the same c role as that of the appellant has been acquitted by the learned trial Court, thus, the involvement of the appellant in the present case becomes doubtful and it is not possible to ascertain as to who was the person responsible for the death of the deceased. Said Muhammad Aslam during the investigation had got recovered a pump action gun. During spot inspection the investigating officer took into possession three crime empties of .12 bore gun. Said pump action and crime empties were sent to the fire arm expert and the report from the said office reveals that all the three crime empties secured from the spot matched with the pump action recovered at the instance of the appellant. Thus, the matching of all the crime empties secured from the spot with the gun recovered at the instance of Muhammad Aslam (co-accused) leads to an irresistible conclusion that there was only one assailant who fired at the deceased, as a result of which he sustained injuries and expired. Along with said Muhammad Aslam four other co-accused who were also assigned the specific injuries to the injured witnesses were acquitted by-'the learned trial Court and the appeal against their acquittal was filed by the complainant through Criminal Appeal No.215 of 2006 but the same was dismissed by this Court vide order dated 27-6-2006, thus, their acquittal has attained finality. It is golden principle of criminal law that ten guilty persons can be released but the Court cannot take risk 'of convicting an innocent person. In case titled Ayub Masih v. The State (PLD 2002 Supreme Court 1048), the honourable Supreme Court held that:--

"Prosecution being obliged to prove its case against the accused beyond any reasonable doubt and if it failed to do so the accused was entitled to benefit of doubt as of right---Rule of benefit of doubt was essentially a rule of .prudence which could not be ignored while dispensing justice in accordance with law---Doubt must be reasonable and not imaginary---Said rule was based on the maxim "it is better that ten guilty persons be acquitted rather than one innocent person be convicted" and occupied a pivotal place in the Islamic law and is enforced rigorously in view of saying of Holy Prophet (P.B.U.H.) that the "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent."

13. During investigation the appellant got recovered his licensed .12 bore gun and the report of the fire-arm expert is only to the extent that the same was in working order. In F.I.R. the appellant was stated to be armed with pump action gun. Thus, the recovery of said weapon at the instance of the appellant is not useful to the prosecution case.

14. As far as the motive part of the prosecution case is concerned, it has been admitted that the land was in possession of the appellant. Some case was filed after the tenure of the tenancy which ended in May, 2004 and status quo was granted and the stay was vacated on 12-7-2004. It is the prosecution case that the possession of the land was handed over to the complainant. There is nothing on record to show as to how the possession was handed over to the complainant. The defence has brought on record that just after the vacation of stay the appeal was filed and on 14-7-2004 another stay order was granted by the appellate court. No document or any evidence indicating that the possession was taken by the complainant has been brought on the record. Patwari while appearing in court had stated that at the time of occurrence the land was in possession of the appellant. Similarly during investigation the investigating officer (P.W. 16) has admitted that the land was in cultivation of Liaquat Ali appellant. The documents produced by the appellant in his defence also leads to an inference that the land was in possession of the appellant. In the absence of any proof regarding taking over of the possession by the complainant from the appellant the version put forward by the appellant appears to be more plausible. It was not possible for the complainant to have taken over the possession immediately after the stay was vacated. He was supposed to go through the legal process which has not been brought on the record. As such the prosecution has failed to prove the fact that the possession was taken over by the complainant. Even the complainant and other witnesses are police officials and were not the residents of the area where the occurrence took place. No plausible reason for their presence at the place of occurrence has been brought on the record. In these circumstances, we hold that the 'prosecution has failed to prove the motive part of its case.

15. For what has been discussed above, in this case the deceased and the eye witnesses were not the residents of the area and had come from a far off place, it was the prosecution case that the possession of the land had already been taken by the complainant but as discussed above, prosecution remained unable to provide the proof regarding the possession rather the defence has placed on record certain documents regarding the possession of the land which appears to be more plausible, the injuries on the person of injured P.Ws. were so simple in nature and do not coordinate with the ocular account, the learned trial Court has disbelieved the presence of the injuries on the person of the injured witnesses and have acquitted the accused who were assigned the role of inflicting injuries to the said P.Ws. So the ocular account brought on record in this case can easily be said to be not above board and in such circumstances the same can only be relied upon unless corroborated from an independent source is available regarding each aspect of their statements; the medical evidence is just in contradiction with the ocular account rather all the witnesses have changed their version and have tried to improve the case and bring the same in line with the ocular account. The co-accused Muhammad Aslam who was assigned the same role as that of the appellant was acquitted by the trial Court, so the medical evidence does not provide any corroboration to the ocular account qua the version of the prosecution brought on record during the whole investigation. The recovery of gun is not supportive to the prosecution, the crime empties recovered from the place of occurrence matched with the gun recovered from the acquitted co-accused and there was no other crime empty so even this circumstance goes in favour of the appellant and against the prosecution. In these circumstances, the prosecution case is based on evidence which is full of doubts. It has been held by the Honourable Supreme Court in case titled Muhammad Akram v. The State (2009 SCMR 230) that:--

"For giving the benefit of doubt it is not necessary, that there should be many circumstances creating doubts---Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefit, not as a matter of grace and concession, but as a matter of right."

16. Accordingly while extending benefit of doubt in favour of the appellant, the appeal filed by him (Criminal Appeal No.831 of 2005) i5 accepted, his conviction and sentence is set aside and he is acquitted of the charge. Appellant shall be released forthwith if not required to be detained in any other criminal case.

17. Resultantly the death sentence awarded to appellant IS NOT CONFIRMED and murder reference (M.R. No.831 of 2005) is answered in the NEGATIVE.

H.B.T./L-26/L Appeal accepted.