ZAFAR IQBAL Versus State
This criminal appeal challenges the conviction and death sentence of the appellant, Zafar Iqbal, for the murder of three individuals. The core legal question concerns whether the prosecution proved the guilt of the accused beyond reasonable doubt, given the inconsistencies between the ocular account and the medical evidence, and the reliability of the forensic reports. The Lahore High Court found that the complainant made significant dishonest improvements in his testimony compared to the FIR, which shattered his credibility. Furthermore, the medical evidence contradicted the ocular account, as the doctor observed no firearm injuries on two of the deceased, attributing death instead to asphyxia and thermal burns. Additionally, the court discarded the forensic report due to the delayed dispatch of crime empties, which created a possibility of fabrication. The court held that these discrepancies created reasonable doubt regarding the prosecution's case. Consequently, the court acquitted the appellant, set aside the conviction, and answered the Murder Reference in the negative, emphasizing that a single circumstance creating reasonable doubt entitles the accused to acquittal as a matter of right.
- Does a significant discrepancy between the ocular account and medical evidence entitle an accused to the benefit of doubt?
- Can a conviction be sustained when the complainant makes dishonest improvements in testimony that contradict the initial FIR?
- Is a forensic report reliable if crime empties are dispatched for analysis after the arrest of the accused and recovery of the weapon?
- Is it necessary to have multiple circumstances to create reasonable doubt for the acquittal of an accused?
- Section 302, Pakistan Penal Code 1860
- Section 460, Pakistan Penal Code 1860
- Section 436, Pakistan Penal Code 1860
- Section 201, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 544-A, Code of Criminal Procedure 1898
SADAQAT ALI KHAN, J .---Appellant (Zafar Iqbal) along with his co-accused i.e. Muhammad Rizwan (since acquitted) has been tried by learned trial Court in case FIR No.662 dated 21.12.2012 offences under sections 302, 460, 436, 201, 34, P.P.C. registered at Police Station Luddan, District Vehari and was convicted and sentenced vide judgment dated 27.04.2016 as under:-
Zafar Iqbal (appellant)
Under section 302(b), P.P.C.
Sentenced to DEATH on three counts for committing Qatl-i-amd of Allah Yar, Mst. Gaman Mai and Mst. Shahnaz Bibi (deceased) with compensation of Rs.1,00,000/- on each count payable to legal heirs of deceased under section 544-A, Cr.P.C. and in default whereof to further undergo simple imprisonment for six months on each count.
2. Appellant has filed this criminal appeal against his conviction whereas complainant (Muhammad Tahir) has filed Criminal Appeal against acquittal of co-accused (Muhammad Rizwan) and learned trial Court has sent Murder Reference for confirmation of death sentence of the appellant or otherwise, which are being decided through this single judgment.
3. Brief facts of the case have been stated by complainant Muhammad Tahir (PW-6) in his statement before the learned trial Court, which is hereby reproduced as under for narration of the facts:-
"States that I was working as labourer prior to the occurrence. I came back 6/7 days before the occurrence in my house situated in Mouza Ghulam Shah to see my parents. On 21.12.2012 at night I was sleeping in my house, my father Allah Yar, my maternal grand mother Mst. Gaman Mai and my sister Mst. Shahnaz Bibi were sleeping in other room. At 3:30 a.m. mid-night, I heard a noise of firing and came out from my room. Meanwhile, Muhammad Irshad and Ramzan PWs also came there. We saw that Zafar Iqbal accused were armed with pistol and Rizwan accused armed with pistol were present in the court. In our view the accused Zafar made firing which hit my father Allah Yar. The accused Zafar then again shot a fire which hit my maternal grand mother Mst. Gaman Mai. Then accused Muhammad Rizwan shot a fire which hit my sister Mst. Shahnaz bibi. We tried to stop the accused. They took to heals while pointing their weapons at us. We chased the accused. When we came back, we found the room had got fired. The fire was put by oil. We attempted to extinguish the fire but in vain. I witnessed whole of the occurrence with my own eyes. In our view dead bodies of all the three deceased were completely burnt. The bone of contention is that Zafar Iqbal accused demanded the hand of my sister Mst. Shahnaz bibi for the marriage of his brother but my father refused. Due to that grudge the accused have committed the occurrence. Police came on the spot. Investigating Officer recorded my statement Ex-P-G and obtained my thumb impression on it."
4. Arguments heard, record perused.
5. Allah Yar (father), Gaman Mai (maternal grandmother) and Shahnaz Bibi (sister) of complainant Muhammad Tahir (PW-6) were done to death in their house on 21.12.2012 at 3:30 a.m. (night), FIR was lodged on 21.12.2012 at 9:30 a.m. by him with the delay of six hours, in these circumstances, consultation and deliberation in this respect cannot be ruled out. It is mentioned in the FIR that complainant Muhammad Tahir (PW-6) on hearing the noise of firing woke up and saw his father Allah Yar lying dead, thereafter Zafar Iqbal (appellant) made fire shots upon Gaman Mai and Shahnaz Bibi (deceased) whereafter he and his co-accused Muhammad Rizwan fled away from the place of occurrence, they tried to apprehend them but could not do so; when they came back, they found dead bodies of Allah Yar, Gaman Mai and Shahnaz Bibi burnt. Muhammad Tahir (PW-6) before learned trial Court while making dishonest improvement stated that appellant (Zafar Iqbal) made firing hitting his father Allah Yar (it is not mentioned in the FIR); he further stated that fire shot of Zafar Iqbal (appellant) also hit on the person of Gaman Mai; he also stated while making dishonest improvement that Muhammad Rizwan (since acquitted) made fire shot which hit Shahnaz Bibi (deceased) whereas no firing was attributed to co-accused Muhammad Rizwan (since acquitted) on the person of deceased in the FIR. This witness made above dishonest improvements which shatter his credibility. Reliance is placed on case titled "Akhtar Ali and others v. The State" (2008 SCMR 06). Even otherwise, Dr. Shahana Waqar (PW-7) did not observe any firearm injury on the persons of Gaman Mai and Shahnaz Bibi (deceased) and stated in her opinion that death occurred due to asphyxia and 100 percent thermal burn. Above discussed conflict between the ocular account and medical evidence is not ignorable rather creates doubt in the prosecution story. It is important to note here that Muhammad Irshad (brother of the wife of Muhammad Tahir/PW-6) and his cousin Ramzan have been mentioned in the FIR as eye-witnesses but did not appear before learned trial Court in support of the complainant story rather were given up by learned trial Court on the request of the complainant.
6. Shahzad Ahmad, SI (PW-8) stated in his statement before learned trial Court that on 28.12.2012, he arrested Zafar Iqbal (appellant), during his personal search, pistol (P-1) was recovered. Report of Punjab Forensic Science Agency (Exh. PEE) shows that crime empties received in the office on 31.12.2012 after the arrest of the appellant and recovery of pistol i.e. 28.12.2012. In these circumstances, possibility of manufacturing of the crime empties before their dispatch to obtain positive report cannot be ruled out, hence, positive report of PFSA in this respect is not believable which is hereby discarded.
7. In view of the above discussion, we entertain serious doubt in our minds regarding participation of appellant and his co-accused Muhammad Rizwan (since acquitted) in the present case. It is settled principle of law that for giving benefit of doubt, it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in the prudent mind about the guilt of the accused, then he would be entitled to its benefit not as a matter of grace or concession, but as of right.
8. For the foregoing reasons, this appeal is allowed, conviction and sentences of the appellant (Zafar Iqbal) awarded by learned trial Court through impugned judgment are hereby set-aside and he is acquitted of the charges. He is directed to be released forthwith, if not required in any other case. Murder Reference is answered in NEGATIVE and death sentence of appellant (Zafar Iqbal) is NOT CONFIRMED.
9. In view of the above decision, Crl. Appeal filed by the complainant against the acquittal of co-accused i.e. Muhammad Rizwan having no merits is dismissed.
JK/Z-6/L Appeal allowed.