Ghulam Rasool vs State etc.

CJDA 38

JUDGMENT SHEET

IN THE LAHORE HIGH COURT, LAHORE

Criminal Revision No. 902 of 2013 (Ghulam Rasool Vs. The State etc.)

Date of hearing: 11.11.2014 Petitioners by: Mr. Aftab Hussain Bhatti, Advocate Respondent by: Mian Khalid Saleem, Advocate for the complainant.

State by: Rana Muhammad Shafique Ahmed, DPG

Sadaqat Ali Khan, J.: The instant Criminal Revision No. 902 of 2013 has been filed by Ghulam Rasool present petitioner/convict against the judgment dated 11.11.2013 passed by learned Additional Sessions Judge, Faisalabad according to which appeal of the present petitioner was dismissed filed by him against his following conviction and sentence awarded by the learned trial court through judgment dated 04.12.2012:-

(i)Ghulam Rasool was convicted under section 324 PPC and sentenced to five years along-with fine Rs.10,000/- and in default thereof further undergo six months S.I.

He was also convicted under section 337- F(iii) PPC land sentenced to three years along-with Daman Rs.5,000/-.

He was also convicted under section 337-D and sentenced to three years and was also liable to pay Arsh which is 1/3 of Diyat amount i.e. Rs.8,44,024/-.

whereas his co-accused namely Ghazala Tabassum and Saima Rani were acquitted from the charge by the learned trial court. All the sentences awarded to the present appellant/convict were ordered to be run concurrently by the trial court in case FIR No. 1529 dated 08.09.2006 under sections 324, 337-F(iii), 337-D/34 PPC police station Saddar, Faisalabad.

2.The facts of the case as stated by Zafar Iqbal complainant /PW-3 real brother of Imran (injured) PW-4

in his written application Ex.PB are as under: -

3.After registration of the case, investigation started and on completion of the investigation report under section 173 Cr.P.C was submitted in the trial court.

4.Learned trial court after observing legal formalities provided under the Criminal Procedure Code framed the charge on 26.02.2010 against present petitioner/convict and his co-accused stated above under sections 324, 337-D, 337-F(iii)/34 PPC to which they pleaded not guilty and prosecution evidence was summoned.

5.Prosecution produced Dr. Bashir Ahmad, MO PW- 1, Dr. Rana Muhammad Imran as PW-2, Zafar Iqbal PW- 3, Muhammad Imran PW-4 and Tufail Ahmad PW-5 and tendered in evidence MLC Ex.PA, injury statement Ex.PA/1, complaint Ex.PB, rough site plan Ex.PC, FIR Ex.PCA and closed the prosecution evidence.

6.Dr. Bashir Ahmad, M.O Faisalabad PW-1 conducted the medical examination of Muhammad Imran/injured and observed as under: - “Injury No.1-A.

A fire arm wound of entry 1 cm x 1 cm through and through on back of right chest. Injury No.1-B.

A fire arm wound exit 1-1/4 cm x 1-1/4 cm on front of right chest.

Injury No.1-A and 1-B were kept under observation for surgical and radiological opinion. Injuries were declared on 3.8.2006

In the light of surgical and Readionlgical opinion. Injury No.1-A was declared as Jurh Jaifah as well as Jurh Ghair Jaifah Munaqilah and kind of weapon used was fire arm and Ex.PA is attested copy of MLC No. 1724/6 which signed and stamped by me as Ex.PA/1 and during cross- examination he stated that fire arm injury cannot be result of friendly handed”.

7.On the other hand, statement of present petitioner/convict was recorded under section 342 Cr.P.C who refuted the allegations so leveled against him and has not opted to appear as a witness under section 340(2) Cr.P.C and also did not produce any defence evidence and in reply to question “why this case against you and why the PWs deposed against you?” the petitioner/convict Ghulam Rasool replied as under: - “The false case has been registered against me and my sisters due to previous grudge and enmities regarding family disputes and divorce.

That PW Zafar Iqbal and Imran injured are real brothers so due to strengthen the prosecution story, PWs deposed falsely due to close relations with each other. I am innocent.”.

8.After conclusion of the trial, learned trial court while acquitting Ghazala Tabassum and Saima Rani co- accused of the present petitioner, convicted the present petitioner/convict with above stated sentences through judgment dated 04.12.2010 and appeal filed by present petitioner against his conviction was also dismissed by Additional Sessions Judge, Faisalabad vide his judgment dated 11.11.2013. Hence this Criminal Revision.

9.Learned counsel for the petitioner contended that:-

(i)the judgments of the courts below are against law and facts on the file and are liable to be set-aside.

(ii)that the prosecution has failed to prove its case against the present petitioner as there are many major discrepancies in the statements of the PWs and both the learned

courts below have convicted the petitioner on the basis of surmises and conjectures;

(iii)it is contended that the impugned judgment of the both the learned courts below are not maintainable in the eyes of law;

(iv)it is contended that all the prosecution witnesses are closely related to each other hence they are interested witnesses and are not reliable;

(v)lastly submitted that criminal revision may be accepted and the judgments of both the courts below may kindly be set aside and petitioner may be acquitted.

10.On the other hand, learned DPG assisted by the learned counsel for the complainant has vehemently opposed the criminal revision and has supported the judgments of the courts below.

11.I have heard the learned counsel for the parties and perused the record.

12.The detail of prosecution case as recorded by Zafar Iqbal complainant/PW-3 real brother of Imran injured PW-4 in his written application Ex.PB has already been given in paragraph No. 2 of this judgment therefore, there is no need to repeat the same to avoid duplication and repetition.

13.According to written application Ex.PB moved by the complainant Zafar Iqbal PW-3 real brother of Muhammad Imran injured PW-4 for registration of the FIR, occurrence took place on 19.7.2006 at 03:00 am (night) whereas FIR was registered on 8.9.2006 with unexplained delay of about two months which itself creates doubt to the extent of involvement of the present petitioner/convict Ghulam Rasool.

14.Zafar Iqbal complainant PW-3 real brother of Muhammad Imran injured himself stated in his examination-in-chief as under: -

15.He further stated in cross-examination as under: -

16.In view of the above, he is not the eye witness to the extent of Ghulam Rasool present petitioner, even otherwise, Zafar Iqbal complainant is resident of Chak No. 203 R.B Manwala, District Faisalabad. Whereas according to his statement occurrence took place in Mohallah Sultan Park, Street No.1, Jaranwala District Faisalabad which is residential house of Ghulam Rasool present petitioner and is situated much far from the residence of Zafar Iqbal complainant stated above and Zafar Iqbal was a chance witness and he could not establish his presence at the time of occurrence at the place of occurrence and in view of the above his statement is hereby discarded.

17.Mst. Ghazala (acquitted accused) is ex-wife of Muhammad Imran injured PW-4 and admittedly she had been divorced prior to the present occurrence. Mst. Saima (acquitted accused) is sister of above stated Mst. Ghazala as well as Ghulam Rasool present petitioner.

18.Muhammad Imran injured PW-4 stated in his statement before the trial court as under: -

19.In view of the above, occurrence took place in the dark of night but no source of light is mentioned in the FIR as well as in statements of PWs. Identity of the accused therefore is also doubtful.

20.Muhammad Imran remained silent for two months and did not report the matter to the police. This

long standing silence of Muhammad Imran injured raised many questions and creates doubt in the prosecution story.

21.Place of occurrence is also doubtful as no blood stained earth was taken from the alleged place of occurrence (house of Ghulam Rasool present petitioner). Further Muhammad Imran injured PW-4 himself has not opted to become the complainant of the case and made his brother Zafar Iqbal PW-3 as complainant in this case after two months from occurrence i.e. 19.7.2006.

22.Muhammad Imran stated in his statement before the trial court regarding the motive of the occurrence as under: -

23.This motive is not acceptable because he himself stated in his statement that Mst. Ghazala also made fire upon him which hit on his arm. Further this motive was not put to Ghulam Rasool appellant in his statement recorded under section 342 Cr.P.C rather another motive was put to him which is hereby reproduced as under: - “the motive behind the occurrence was that Imran the injured Pw divorced his wife Ghazala Tabassum for which Ghulam Rasool brother of Ghazala Tabassum nourished the grudge against Imran which culminated into the present occurrence”.

24.In view of the above, the presence of Muhammad Imran injured PW-4 in the house of Ghulam Rasool petitioner who is real brother of Ghazala (acquitted accused) ex-wife of Muhammad Imran injured PW-4 is unnatural and Muhammad Imran PW-4 concealed this fact before the trial court that he had divorced his wife Mst. Ghazala (acquitted accused) before the occurrence and this concealment creates doubt in the prosecution story.

25.Mst. Ghazala (acquitted accused) was attributed fire on the arm of Imran injured PW-4 and she was acquitted by the trial through the impugned judgment but neither Muhammad Imran injured PW-4 nor Zafar

Iqbal complainant PW-3 filed any appeal against her acquittal.

26.Tufail Ahmad ASI/first I.O of this case PW-5 and Muhammad Wakeel Inspector second I.O of the case stated in their statements before the trial court that present petitioner in successive two investigations has been found innocent.

27.In view of the above, the case of the prosecution is not free from doubt and it is admitted principle of law that benefit of doubt must be given to the accused not as a matter of grace but as a matter of right. Reliance is placed on case titled Muhammad Akram V. The State (2009 SCMR 230) in which Hon’ble Supreme Court of Pakistan has observed at page 236 as under: - “the nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right”.

28.Mere absconsion is not conclusive proof of guilt of an accused person. It is only suspicious circumstances against an accused that he was found guilty of the offence. However, suspicions after all are suspicions. Reliance is placed on case Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others (PLD 2009 SC 53) in which Hon’ble Supreme Court of Pakistan has observed at page 57 as under: - “Mere absconsion is not conclusive proof of guilt of an accused person. It is only a suspicious circumstances against an accused that he was found guilty of the offence. However, suspicions after all are suspicions. The same cannot take the place of proof”

29.For the foregoing reasons, the Criminal Revision No. 902 of 2013 filed by Ghulam Rasool present petitioner is hereby accepted and his conviction and sentences awarded by the learned

trial court vide judgment dated 04.12.2012 and upheld by the appellate court vide judgment dated 11.11.2013 are set-aside and the petitioner Ghulam Rasool is ordered to be acquitted of the charge in case FIR No. 1529 dated 08.09.2006 under sections 324, 337-F(iii), 337-D/34 PPC police station Saddar, Faisalabad. by giving him the benefit of doubt. He is directed to be released forth with if not required in any other case.

(Sadaqat Ali Khan) Judge

APPROVED FOR REPORTING

Irfan