IFTIKHAR AHMED alias Papu Versus State
MALIK SHAHZAD AHMAD KHAN, J.---
Criminal Appeal No.57 of 2021
Iftikhar Ahmed alias Papu (appellant), along with Muhammad Saleem alias Chheema, Zulfiqar Ahmad alias Qari, Muhammad Mohsin, Jahanzeb, Waseem, Muhammad Aslam, Pervaiz, Muhammad Saleem, Shehzad, Sajid (co-accused since acquitted) and Naveed ( co-convict regarding whom record is silent that as to whether or not the said co-convict challenged his conviction/sentence ), was tried by the learned trial Court (Additional Sessions Judge, Malakwal), in a private complaint filed by Muhammad Rasheed complainant ( not appeared before the learned trial Court as a witness since died ), for the offences under sections 302, 324, 148, 149, 337F(iii), 148, 149 and 109, P.P.C., connected with case FIR No.314/2012, dated 23.08.2012, under sections 302, 324, 148, 149 and 109, P.P.C., registered at Police Station Miana Gondal, District Mandi Bahauddin. The learned Trial Court vide its judgment dated 27.03.2017, convicted and sentenced the appellant as under:-
Under Section 302(b), P.P.C.
Imprisonment for life as Taazir. To pay Rs.5,00,000/- as compensation to the legal heirs of the deceased as envisaged under section 544-A Cr.P.C, recoverable as arrears of land revenue, failing which to further undergo six (06) months SI.
Benefit of Section 382-B Cr.P.C. was also extended in favour of the appellant.
It is pertinent to mention here that vide the abovementioned judgment, the learned trial Court also convicted Muhammad Saleem alias Chheema and Zulfiqar Ahmad alias Qari (co-accused) under section 302(b), P.P.C. and awarded Muhammad Saleem alias Chheema (co-accused), the same sentence as that of Iftikhar Ahmed alias Papu (appellant), whereas awarded Zulfiqar alias Qari (co-accused), the sentence of death as Taazir and the remaining sentence was the same as that of Iftikhar Ahmad alias Papu (appellant). The learned trial Court also convicted Naveed (co-accused) for causing simple hurt to the complainant and sentenced him to one (01) year rigorous imprisonment and Daman Rs.25,000/-, payable to the legal heirs of Muhammad Rasheed complainant. It was also ordered that Naveed (co-convict), be kept in jail till payment of Daman amount. However, Muhammad Mohsin, Jahanzeb, Waseem, Muhammad Aslam, Pervaiz, Muhammad Saleem, Shehzad and Sajid (co-accused), were acquitted by the learned trial Court. In appeal, the learned High Court while maintaining the conviction and sentence of Iftikhar Ahmed alias Papu (appellant), under Section 302(b), P.P.C., partly dismissed the appeal filed by the appellant and his co-accused. However, vide the same impugned judgment dated 19.11.2018, Muhammad Saleem alias Chheema and Zulfiqar Ahmad alias Qari (co-accused), were acquitted of the charge.
2. Arguments heard. Record perused.
3. As per contents of the private complaint, on 23.08.2012, at about 1.30 p.m (Noon), Muhammad Rasheed complainant along with his son namely Muhammad Irfan (deceased), was coming back from his fields towards his cattle shed and when they reached infront of the house of one Musa Khan Warrraich, Iftikhar Ahmed alias Papu (appellant) along with eight co-accused, who were ambushed in the house of Muhammad Saleem alias Chheema (co-accused since acquitted), while armed with different weapons attacked upon the complainant party. The fire shots made by the appellant with his 12-bore gun landed on the right calf of Muhammad Irfan (deceased). The fire shots made by Zulfiqar Ahmad alias Qari (co-accused since acquitted), with his Kalashnikov landed on the back side of the chest of Muhammad Irfan (deceased), whereas the fire shots made by Muhammad Saleem alias Chheema (co-accused since acquitted), with his 44-bore rifle landed on the left shoulder of Muhammad Irfan (deceased). Naveed (co-accused), made a fire shot, which landed on the left ankle of Muhammad Rasheed complainant. The complainant further alleged in the private complaint that on account of firing of Muhammad Mohsin, Jahanzeb and Waseem (co-accused since acquitted), their companion namely Muhammad Saleem alias Chheema (co-accused since acquitted), was also injured during the occurrence.
4. We have noted that for the single deceased of this case namely Muhammad Irfan and one injured namely Muhammad Rasheed complainant, the complainant party implicated as many as nine (09) accused with the allegation that on the day of occurrence they attacked upon the complainant party and three other accused were also implicated in this case with the allegation of abetment and as such total twelve (12) accused were implicated in this case by the complainant party.
5. It is further noteworthy that the occurrence in this case admittedly took place in-front of the house of Muhammad Saleem alias Chheema (co-accused since acquitted). It was claim of the accused party that in-fact the complainant party was the aggressor, who came to the house of the accused party on the day of occurrence and caused injuries to Muhammad Saleem alias Chheema, Muhammad Mohsin, Jahanzeb and Waseem (co-accused since acquitted). The same plea that the complainant party was the aggressor, was taken by the appellant and his co-accused in their statements recorded under section 342 Cr.P.C, before the learned trial Court. As mentioned earlier, Zulfiqar Ahmad alias Qari and Muhammad Saleem alias Chheema (co-accused), were assigned the roles of causing one firearm injury each on the back side of the chest and on the left shoulder of Muhammad Irfan (deceased), respectively but the said accused were acquitted by the learned High Court vide the impugned judgment on the ground that recoveries of weapons at the pointing out of the said co-accused remained inconsequential. Although the conviction and sentence of the appellant has been upheld and maintained on the ground that the prosecution case against the appellant was corroborated by the recovery of 12-bore gun and positive report of Punjab Forensic Science Agency, Lahore (Ex.PN) but it is noteworthy that the empties were recovered from the spot on 23.08.2012. The appellant was arrested in this case on 28.08.2012 and the empties were deposited in the office of PFSA on 28.08.2012 i.e., after the arrest of the appellant in this case. Under the circumstances, even the prosecution evidence qua the recovery of 12-bore gun and positive report of PFSA (Ex.PN), against Iftikhar Ahmed alias Papu (appellant), is not safe to be relied upon. In the cases of Muhammad Amin v. The State and another (2019 SCMR 2057) and Asad Rehmat v. The State and others (2019 SCMR 1156) , recovery of weapon of offence and positive report of PFSA were disbelieved when the empties were deposited in the office of PFSA after the arrest of the accused.
6. Insofar as the motive of the prosecution case is concerned, we have noted that as per contents of the FIR, about two (02) days prior to the occurrence, a quarrel took place and abuses were exchanged between Muhammad Irfan (deceased) and all the accused persons. A joint motive was alleged against all the accused but ten (10) co-accused have already been acquitted in this case by the learned trial Court and the learned High Court. No specific motive was alleged against Iftikhar Ahemed alias Papu (appellant). Moreover, the prosecution evidence qua the motive has already been disbelieved by the learned High Court in paragraph No.18, of impugned judgment. We are therefore, of the view that the prosecution could not prove the motive against the appellant.
7. So far as the ocular account of the prosecution is concerned, we have noted that Muhammad Rasheed complainant was statedly an injured eye-witness of the case but he did not appear in the witness box because as per record, he died before the recording of his evidence by the learned trial Court.
As regards the evidence of the remaining prosecution eye-witnesses is concerned, we have noted that according to the evidence of Muhammad Inayat SI (CW-8), who is Investigating Officer of this case, Iftikhar Ahmed alias Papu (appellant), Zulfiqar Ahmed alias Qari and Mohsin (co-accused since acquitted), were also injured in this case apart from Muhammad Saleem alias Chheema (co-accused since acquitted), however, the said co-accused except Muhammad Saleem alias Chheema (co-accused), refused to get them medically examined. The medico legal report of Muhammad Saleem alias Chheema (co-accused since acquitted), was brought on the record as (Ex.CW-2/A). Perusal of the said reports shows that the injury of Muhammad Saleem alias Chheema (co-accused since acquitted), was declared to be punishable under section 337F(v), P.P.C., due to the fracture of the bone of left thigh and his injury was caused with a firearm. In the relevant column of his medico legal report, the Medical Officer has categorically mentioned that there waws no possibility of fabrication of the injury of the abovementioned co-accused.
It is true that the Medical Officer, who medically examined Muhammad Saleem alias Chheema (co-accused since acquitted) and issued his medico legal report, did not appear in the witness box but it is noteworthy that sustaining of injury by Muhammad Saleem alias Chheema (co-accused since acquitted), has been admitted by the complainant himself in the contents of the FIR and the said fact was also admitted by prosecution witnesses. Likewise, the sustaining of injuries by Iftikhar Ahmed alias Papu (appellant), Zulfiqar Ahmad alias Qari and Mohsin (co-accused since acquitted), has also been admitted by the Investigating Officer. As the injuries on the bodies of the above-mentioned members of the accused party were admitted by the prosecution witnesses, therefore, the admitted facts need not to be proved, hence non-appearance of the Medical Officer in the witness box is not fatal to the appellant s case. It is also by now well settled that standard of proof required to establish a defence plea is lighter as compared to the prosecution because the prosecution has to prove its case beyond the shadow of any doubt, whereas the accused has only to create a reasonable doubt in the prosecution case through some attending circumstance(s) or some tangible evidence as observed in the judgments reported as Mian Muhammad Nawaz Sharif v. The State (PLD 2009 Supreme Court 814), Rashid Ahmad v. The State (2001 SCMR 41) and Muhammad Nazir v. Tariq and another (1992 SCMR 1983) .
8. As mentioned earlier, it was an admitted fact that Muhammad Saleem alias Chheema (co-accused since acquitted), was also injured during the occurrence though the complainant had stated a different story in this respect that the said accused was injured on account of the firing of his companions. Likewise, the Investigating Officer of this case namely Muhammad Inayat SI (CW-8), has also admitted that three other accused namely Iftikhar Ahmed alias Papu (appellant), Mohsin and Zulfiqar Ahmad alias Qari (co-accused since acquitted), were also injured during the occurrence and as the occurrence admittedly took place in-front of the house of Muhammad Saleem alias Chheema (co-accused since acquitted), therefore, possibility cannot be ruled out that the complainant party was the aggressor in this case, who came all the way to the house of the abovementioned co-accused and injured four (04) members of the accused party. Admission of the Investigating Officer, who was a prosecution witness has established that Iftikhar Ahmed alias Papu (appellant), Mohsin and Zulfiqar Ahmad alias Qari (co-accused since acquitted), were also injured in this case but their injuries were suppressed by the prosecution, which shows that the prosecution witnesses were not truthful witnesses, hence their evidence is not worthy of reliance. Reference in this context may be made to the judgments reported as Muhammad Yaqoob v. Manzoor Hussain and 3 others (2008 SCMR 1549), Ghulam Nabi v. Ikram alias Kama and others (2020 SCMR 477), Muhammad Iqbal v. Abid Hussain alias Mithu and 6 others (1994 SCMR 1928), Nasrullah and another v. The State (1985 SCMR 1715) and Muhammad Ramzan v. The State (2021 SCMR 655) .
9. Keeping in view all the aforementioned facts, we have come to this irresistible conclusion that the prosecution has failed to prove its case against the appellant beyond the shadow of doubt. It is by now well settled that if there is a single circumstance, which creates doubt in the prosecution case then the same is sufficient to acquit the accused, whereas the instant case is replete with number of circumstances, which have created serious doubts in the prosecution story. Reference in this context may be made to the judgments reported as Tariq Pervez v. The State (1995 SCMR 1345) and Muhammad Akram v. The State (2009 SCMR 230) . Consequently, this appeal is allowed. The judgments of the trial Court and the High Court dated 27.03.2017 and 19.11.2018, respectively are set aside. Iftikhar Ahmed alias Papu appellant is acquitted of the charge while giving him the benefit of doubt. He shall be released from the jail forthwith unless required to be detained in any other case.
Criminal Appeal No.58 of 2021
10. Insofar as this criminal appeal filed by Naseer Ahmed appellant for enhancement of sentence awarded to Iftikhar Ahmed alias Papu (respondent No.3) and against the acquittal of Zulfiqar Ahmad alias Qari and Muhammad Saleem alias Chheema (respondents Nos. 1 and 2), is concerned, it is pertinent to mention here that we have already disbelieved the prosecution evidence and found the same to be doubtful/unreliable in view of our findings recorded in preceding paragraphs of this judgment, therefore, there is no substance in this criminal appeal, hence the same is hereby dismissed.
JK/I-17/SC Appeal allowed.