MUHAMMAD RAFIQUE vs SHAUKAT ALI alias BUTT and anothers
This petition for leave to appeal under Article 185(3) of the Constitution of Pakistan 1973 was filed by the complainant against the acquittal of the respondent for murder under Section 302 of the Pakistan Penal Code 1860 by the High Court, which had set aside his conviction and sentence handed down by the trial court. The core legal question was whether the High Court erred in setting aside the conviction without properly sifting grain from chaff in the testimonies of prosecution witnesses and without adequately countering the well-reasoned judgment of the trial court. The Supreme Court held that leave to appeal should be granted to examine the efficacy of the impugned judgment, noting the failure of the appellate court to properly evaluate material evidence and address the trial court's reasoning. The key principle laid down is that an appellate court, when dealing with criminal appeals against conviction, must rigorously examine and sift the evidence and address the foundational reasoning of the trial court rather than setting aside a conviction summarily.
- Whether an appellate court is bound to sift the grain from the chaff while evaluating contradictory statements of prosecution witnesses in a criminal case?
- Can the Supreme Court grant leave to appeal against an acquittal when the impugned judgment fails to counter the material reasons advanced by the trial court?
- Does a criminal appellate judgment require a detailed evaluation of the prosecution case in its material particulars before reversing a conviction?
- Article 185, Constitution of the Islamic Republic of Pakistan 1973
- Section 302, Pakistan Penal Code 1860
- Section 544-A, Code of Criminal Procedure 1898
- Section 382-B, Code of Criminal Procedure 1898
- Section 342, Code of Criminal Procedure 1898
ORDER
' CH. MUHAMMAD ARIF, J.----This petition under clause (3) of Article 185 of the Constitution of the Islamic Republic of Pakistan, 1973 on behalf of Muhammad Rafique/ complainant in a murder case examined as P.W.5 therein, is directed against the judgment, dated 28-2-1995 whereby respondent-Shaukat Ali Butt remained successful in challenging his conviction under section 302, P.P.C. Sentencing him to imprisonment for life and payment of compensation of Rs.25,000 under section 544-A, Cr P,C. Or in default to suffer R.I. For five months alongwith benefit of section 382-B, Cr.P.C. The petitioner's revision petition seeking enhancement of sentence was also disposed of as having become infructuous on account of the acceptance of Criminal Appeal No.806 of 1992.
2. The petitioner/complainant made a statement before Muhammad Zulfiqar S.-I./S.H.O. Police Station Noshehra Virkan on 7-6-1990 at 8-00 p.m. After the police officer had reached the hospital on receiving information regarding the occurrence, dated 7-6-1990 having taken place at about Maghrib prayer time wherein petitioner's nephew Muhammad Asgher, a student of 9th class, was called over by the respondent from the mosque. When Muhammad Asgher responded to the call of the respondent and was at a distance of about 5/6 feet from him, the respondent made fire with carbine hitting him on the right side of the stomach. The complainant and other P.Ws. Namely Faqir Muhammad and Munir were also standing with him at his tea stall on Badorata Road, within the area of revenue estate of Matta Virkan, Police Station Noshera Virkan, District Gujranwala and ran towards the injured Muhammad Ashger. At that juncture respondent-Shaukat Ali ran away and the injured was removed to the hospital where he breathed his last on account of injury. Motive for occurrence was alleged to be a scuffle having taken place between respondent-accused and Muhammad Asgherdeceased a couple of days before the date of occurrence. The petitioner and Faqir Muhammad afore-referred appeared as P.Ws. 5 and 6, respectively, during the trial. The Investigating Officer as also Ehsan Ullah who had witnessed the recovery of carbine at the instance of the respondent, also appeared as P.Ws. 10 and 7 respectively. Respondent pleaded innocence while being examined under section 342, Cr.P.C. And claimed to have been falsely involved in the case at the behest of Khalid Javed Virk, M.P.A. As the latter was inimical against his family and alleged that P.Ws. Had deposed falsely at the instance of the said Khalid Javed Virk. The then learned Sessions Judge, Gujranwala convicted the respondent as above on 6-7-1992 after holding the respondent having made the fire intentionally and sentenced him to imprisonment for life "...
Keeping in view the facts and circumstances of the case (including absence of proof of motive and tender age of the accused) on record".
3. We have heard Raja Abdul Ghafoor, Advocate-on-Record in support of this petition. We are inclined to grant leave to appeal to the petitioner to consider the efficacy or otherwise of the impugned judgment, dated 28-2-1995 in that no effort appears to have been made therein to sift the A grain from chaff even in relation to the alleged contradictory statements of P.Ws. Muhammad Rafique and Faqir Muhammad as also to even so much as counter the reasons advanced by the learned Sessions Judge in accepting the prosecution case in its material particulars with the observation that the defence plea does not advance its case for sparing the real culprits to falsely involve the accused to please Khalid Javed Virk, M.P.A. Order accordingly. Let bailable warrants of arrest issue against respondent-Shaukat Ali alias Butt in the sum of Rs.50,000 with one surety in the like amount to the satisfaction of the trial Court.