Muhammad Amin etc. vs State etc.

CJDA 38

JUDGMENT SHEET

IN THE LAHORE HIGH COURT, LAHORE

Criminal Revision No.640 of 2013 (Muhammad Ameen etc. Vs. The State etc.)

Date of hearing: 12.11.2014 Petitioners by: Mr. Naveed Ahmed Khawaja, Advocate State by: Rana Muhammad Shafique Ahmed, DPG

Sadaqat Ali Khan, J.: The instant Criminal Revision No. 640 of 2013 has been filed by Muhammad Ameen and Muhammad Nadeem present petitioners/convicts against the judgment dated 13.08.2013 passed by learned Additional Sessions Judge, Chunian District Kasur according to which appeal of the present petitioners was dismissed filed by them against their following convictions and sentences awarded by the learned trial court through judgment dated 22.01.2013:-

(i)Muhammad Amin was convicted under section 334 PPC and sentenced to seven years as Tazir and also to pay Rs.3,21,880 as Arsh i.e. equal to one half of the value of the Diyat as in the year 2006.

(ii)Muhammad Nadeem was convicted under section 337-F(iii) and sentenced to three years as Tazir and also to pay Rs.30,000/- as Daman.

However, they were acquitted by the learned trial court under sections 324, 365, 148/149

PPC.

whereas their co-accused namely Shah Muhammad, Saleem, Ashiq and Zulifqar were acquitted from the charge by the learned trial court. Benefit of section 382-B Cr.P.C was also extended to the present petitioners by the learned trial court in private complaint under section 324, 365, 148/149 PPC arising out of FIR No. 275/2006 under sections 324, 365/34 PPC police station Changa Manga Tehsil Chunian District Kasur.

2.The facts of the case as stated by Qadrat Ullah complainant/PW-1 in his private complaint in brief are that on 2.7.2006 at about 12:30 pm, he and his brother

Muhammad Ahmed injured PW-2 were coming back from the land of their paternal uncle Muhammad Arshad and when they reached near Dhari Malik Shah Muhammad, accused persons namely Muhammad Amin, Nadeem (present appellants) armed with guns, Saleem and Shah Muhammad (acquitted accused) armed with guns, Ashiq and Zullifqar (acquitted accused) armed with pistols along-with one unknown person came out from the bushes and abducted him and his brother Muhammad Ahmed PW-2 and took them to their Dhari and gave them beating. In the meanwhile, all the above said accused persons started firing at him and his brother Muhammad Ahmed PW-2 as a result of which he and his brother Muhammad Ahmad PW-2 suffered injuries and fell down. He further stated that accused persons kept on firing in air. During this period, Shehzad PW-3 and Imran (given up PW) who were working in the nearby fields attracted there and witnessed the occurrence. The motive behind the occurrence is the previous litigation between the accused and the complainant party.

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 13.03.2007 against present petitioners/convicts and their co-accused stated above under sections 324, 364/34 PPC to which they pleaded not guilty and prosecution evidence was summoned.

5.Prosecution produced Qadrat Ullah complainant as PW-1, Muhammad Ahmed injured as PW-2, Muhammad Shehzad as PW-3, Muhammad Imran as PW-4, Dr. Farooq Ahmed Cheema as PW-5, Muhammad Riaz constable PW-6, Ijaz Ahmed Inspector PW-7, Dr. Zia Ullah Bajwa PW-8 whereas Azam and Namdar constables were given up by the prosecution being unnecessary and tendered in evidence site plan Ex.PA recovery memo of gun Ex.PB and closed the prosecution evidence.

6.Medical evidence was furnished by Farooq Ahmed Cheema PW-5 who observed two injuries on the body of Muhammad Ahmad injured PW-2 which are hereby reproduced: -

He further stated that on the same day, he medically examined Qudrat Ullah injured complainant PW/1 and observed following injures on his person.

7.On the other hand, statement of present petitioners/convicts were recorded under section 342 Cr.P.C who refuted the allegations so leveled against them and have 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?” both the petitioners/convicts Muhammad Amin and Muhammad Nadeem replied as under: - “The accused party have previous grudge with the complainant due to which the instant false case was registered. FIR No.229/2002 P.S Changa Manga u/s 364 PPC was registered against the complainant party by my real brother Muhammad Yasin son of Shah Muhammad regarding abduction of Atif son of Yasin the paternal nephew of the accused. Two PWs are real brothers and one of them in the near kin of the above mentioned PWs”.

8.After conclusion of the trial, learned trial court while acquitting Shah Muhammad, Saleem, Ashiq and Zulifqar co-accused of the present petitioners, convicted the present petitioners/convicts with above stated sentences through judgment dated 22.01.2013 and appeal filed by present petitioners against their convictions was also dismissed by Additional Sessions

Judge, Chunian vide his judgment dated 13.08.2013. Hence this Criminal Revision.

9.Learned counsel for the petitioners 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 petitioners as there are many major discrepancies in the statements of the PWs and both the learned courts below have convicted the petitioners 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 petitioners may be acquitted.

10.On the other hand, complainant did not turn up despite service however, learned DPG has vehemently opposed the criminal revision and has supported the judgments of the courts below.

11.I have heard the learned counsel for the petitioners as well as learned DPG and perused the record.

12.The detail of prosecution case as recorded by Qudret Ullah complainant/PW-1 in his private complaint 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.Initially, (i) Muhammad Amin (ii) Nadeem (present petitioners) (iii) Saleem (iv) Shah Muhammad (v) Ashiq and (vi) Zulifqar Ali (acquitted accused) have been nominated in the FIR along-with one unknown person

by Qudrat Ullah injured complainant/PW-1. Acquitted accused (iii) to (vi) stated above were declared innocent during the investigation, Qudrat Ullah complainant PW- 1 feeling aggrieved filed private complaint against all the above stated six accused.

14.Qudrat Ullah injured complainant/PW-1 while appearing before the trial court stated in his examination-in-chief as under: -

15.Muhammad Ahmed injured PW-2 stated in his examination-in-chief before the trial court as under: -

16.Muhammad Shahzad PW-3 stated in his examination-in-chief before the trial court as under: -

17.In view of the above statements, Qudrat Ullah injured complainant/PW-1, Muhammad Ahmed injured/PW-2 and Muhammad Shahzad PW-3 have stated that all the above stated six accused made collective firing upon Qudrat Ullah injured PW-1 and Muhammad Ahmad injured PW-2 in result of which they became injured and did not specify individual role of the accused stated above including present petitioners Muhammad Ameen and Muhammad Nadeem. It is not disputed that the said witnesses had never specified any particular fire shot or injury having been made or caused to them by the present petitioners Nadeem and

Muhammad Ameen. In the present case, no particular injury found on the body of Qudrat Ullah injured PW-1 and Muhammad Ahmad injured PW-2 had never been attributed to the present petitioners individually.

18.Learned trial court has failed to distinguish the role of present petitioners Muhammad Nadeem and Muhammad Ameen from the role of Zulifqar, Ashiq, Saleem and Shah Muhammad acquitted accused.

19.Petitioners Muhammad Ameen and Muhammad Nadeem could not have been convicted for the injuries sustained by Qudrat Ullah injured PW-1 and Muhammad Ahmad injured PW-2 because it was never determined as to which particular injury, if any, had actually been caused by the present petitioners to injured persons stated above. When confronted with this legal proposition, the learned DPG has no answer to the same and he could not defend the impugned judgment to the extent of conviction of the present petitioners Nadeem and Muhammad Ameen. Reliance is placed on case Ansar Mehmood v. The State (2011 SCMR 1524). Further, role of the present two petitioners Muhammad Ameen and Nadeem is at par with acquitted accused Shah Muhammad, Saleem, Zulifqar and Ashiq and complainant has not filed any appeal against their acquittal as stated by learned counsel for the petitioners and petitioners are also entitled for the same relief on the principle of consistency. Learned trial court by disbelieving the evidence of Qudrat Ullah injured PW-1, Muhammad Ahmad injured PW-2 and Muhammad Shahzad PW-3 to the extent of Shah Muhammad, Saleem, Zulifqar and Ashiq accused acquitted them but without any independent corroboration and without distinguishing the role of the present petitioners Nadeem and Muhammad Ameen from the statements of above stated PWs, illegally convicted present petitioners on the basis of same evidence. However, the petitioners were acquitted under sections 324, 365, 148/149 PPC by the learned trial court. It is a settle law that eye witnesses have found falsely implicated four accused out of six

then conviction of remaining accused on the basis of same evidence cannot be relied upon without independent corroboration which is missing in the instant case. Reliance is placed on case Akhtar Ali v. The State (2008 SCMR 6) in which Hon’ble Supreme Court of Pakistan has observed at page 12 as under: - “it is a settled law that eye witnesses found to have falsely implicated five out of eight accused then conviction of remaining accused on the basis of same evidence cannot be relied upon without independent corroboration”.

20.For the foregoing reasons, this Criminal Revision is accepted and conviction and sentences recorded by the trial court vide impugned judgment dated 22.1.2013 passed by Judicial Magistrate Chunian and upheld by Additional Sessions Judge, Chunian vide judgment dated 13.8.2013 are hereby set-aside. Petitioners Nadeem and Muhammad Ameen are ordered to be acquitted of the charge in private complaint under section 334, 337-F(iii), 324, 365. 148/149 PPC arising out of case FIR No. 275/2006 under sections 324, 365/34 PPC police station Changa Manga Tehsil Chunian District Kasur. Muhammad Amin is directed to be released forth with if not required in any other case. Whereas Nadeem petitioner is present on bail. His surety stand discharged.

(Sadaqat Ali Khan) Judge

APPROVED FOR REPORTING

Irfan