State VS Ikram ullah

Stereo. H C J D A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT AT LAHORE.

JUDICIAL DEPARTMENT

Criminal Appeal No. 2112-2003.

(The State v. Ikram ullah etc)

JUDGMENT

Date of Hearing: _________14.10.2014________________________________ Appellant by: Mr. Munir Ahmad Sial, Deputy Prosecutor General.

Aalia Neelum, J. – By means of instant appeal filed in terms of Section 417 of Cr.P.C., the State through Public Prosecutor Punjab, has challenged the acquittal of respondents No.1 & 2-Ikram ullah and Abdaal recorded by the learned Additional Sessions Judge, Mandi Bahauddin vide judgment dated 02.06.2003 in case F.I.R. No.55-2002, dated 20.03.2002, offence under Sections 302, 460, 34 of P.P.C., registered at Police Station, Pahrianwali, District, Mandi Bahauddin.

2.Briefly, the facts narrated in the crime report (Ex.PC/1) are that on 19/20.03.2002 at about 12:30 a.m. (night) complainant and his father-Ali Muhammad (since died) were sleeping in the courtyard of their house and suddenly they smelt noise of feet whereupon they woke up and saw Ikram ullah armed with 12-bore pump action and Abdaal equipped with his pistol 30-bore were coming towards their cots and accused-Ikram ullah raised a lalkara to teach a lesson to Ali Muhammad (since died) and made two fire shots with his gun which landed on the head and face of deceased-Ali Muhammad who succumbed to the injuries. On hue and cry, accused persons were escaped from the spot.

3.Motive behind the occurrence is stated to be that two days prior to alleged occurrence, deceased-Ali Muhammad had

Criminal Appeal No.2112 of 2003 (The State v. Ikram ullah etc).

abused the accused persons for teasing the women-folk of complainant’s family.

4.On the basis of complaint (Ex.PC) of the complainant (PW-5) F.I.R. (Ex.PC/1) was chalked out by Muhammad Azam, Moharrar (PW-2) whereas supplementary statement (Ex.PC/2) of complainant (PW-5) was recorded on 20.03.2002. After registration of case, Muhammad Hanif, Retired Inspector (PW-9), the Investigating Officer visited the place of occurrence and bloodstained earth was taken into possession by him vide recovery memo (Ex.PD), crime empties P-4/1 to 2 along with an alive cartridge vide recovery memo (Ex.PE) and dead body of deceased-Ali Muhammad was escorted to mortuary by Akhter Masood, 253/C. Last worn clothes of deceased were handed over to the Investigating Officer by Akhter Masood- 253/C (PW-3) i.e. Qamiz P-1, Jercy P-2, Tehband P-3 all blood- stained which were taken into possession vide recovery memo (Ex.PA). He also prepared the site plan (without scale) as (Ex.PF) which also bears his signatures, injury statement of deceased as (Ex.PG) and inquest report as (Ex.PH). Thereafter the Investigating Officer recorded the statements under Section 161 of Cr.P.C. of PWs namely Muhammad Zaman, Qaiser Mehmood, Muhammad Asif, Akhtar Maqsood. After that, investigation came into the hands of Ghulam Abbas, S.I. who arrested both the accused-Ikram ullah and Abdaal and on 22-04-2002, accused-Ikram ullah got recovered a pump action gun 12-bore P-4 from the baithak of his house which was taken into possession after preparing the recovery memo (Ex.PB).

5.Having found the accused persons (respondents) guilty, the Investigating Officer prepared report under Section 173 of Cr.P.C. and sent the same to the court of competent jurisdiction. The learned trial court, on 02.06.2003 formally charge sheeted the accused (respondents) to which they pleaded not guilty and claimed trial.

Criminal Appeal No.2112 of 2003 (The State v. Ikram ullah etc).

6.The prosecution in support of the version, produced nine (09) witnesses. Ocular account of occurrence in this case has come out from the statements of Arshad Mehmood-complainant (PW-5) whereas Dr.Muhammad Iqbal (PW-4) had conducted postmortem of deceased-Ali Muhammad on 20.03.2002 and observed as under:-

1.A lacerated wound 2 x 1⁄2 cm cutting through and through the pinna of upper part of left ear.

2.A lacerated wound 5 x 2 cm x bone deep on interior side of middle and lower pinna of right ear, extending to adjacent cheek.

3.A lacerated wound 2 x 2 cm on right side of head six cm above right ear. Bone was exposed.

4.A lacerated wound 2 x 1⁄2 cm on left side of head 8 cm above left ear and five cm from left eyebrow.

5.A lacerated wound 1 x 1 cm on left side of face 1 cm from left eye. Wound was bone deep.

6.A lacerated wound 4 x 1 cm x bone deep on right cheek.

7.A lacerated wound 1 x 1⁄2 cm x bone deep on back of left hand three cm from second meta- carpophalyngeal joint.

8.A bruise 3 x 3 cm circular shape at xiphisternum.

9.A bruise 8 x 6 cm on upper part of front of right side of chest.

10.A bruise 6 x 4 cm on right side of middle of right chest.

11.A bruise 5 x 4 cm on lower part of right side of chest.

12.A bruise 8 x 6 cm on middle and lower part of left side of chest.

13.A bruise 10 x 5 cm on middle of front of left upper part of arm.

14.A bruise 5 x 4 cm on middle of front of right upper arm.

15.A bruise in an area of 10 x 2 cm around right iliac crest.

16.An abrasion 1 x 1⁄2 cm on back of right shoulder.

Criminal Appeal No.2112 of 2003 (The State v. Ikram ullah etc).

17.An abrasion 1 x 1⁄2 cm 5 cm medial to injury No.16.

18.An abrasion 3 x 2 cm on front of right knee.

19.A bruise 5 x 4 cm on top of left shoulder.

20.A bruise 3 x 3 cm on back of middle of left thigh.

Opinion.

“After postmortem, the doctor opined that injury No.1 to 20 were ante-mortem inflicted by a blunt weapon.” “Time between injuries and death was half an hour and between death and postmortem examination was within 12 to 16 hours.”

Ex.PC is carbon copy of postmortem examination along with its diagram Ex.PC/1, issued by him and bore his signatures.

The statements of remaining prosecution witnesses are formal in nature.

7.Learned Deputy District Attorney has given up Mukhtar Ahmad and Muhammad Zaman (PWs) on 30.01.2003 and 01.03.2003 being un-necessary whereas after tendering the report of Chemical Examiner (Ex.PK), report of Serologist (Ex.PJ) and report of Forensic Science Laboratory (Ex.PL), learned Deputy District Attorney had closed the prosecution evidence on 11.03.2003.

8.The accused (respondent No.2) was also examined in terms of Section 342 of Cr.P.C., wherein he opted not to appear as his own witness in disproof of the allegations levelled against him in the prosecution version, however, he opted to lead evidence in his defence. In response to the question why this case against him and why the PWs deposed against him, Abdaal-accused (respondent No.2) made the following deposition:-

“PWs are closely related inter-se. They have not witnessed the occurrence. The occurrence took place in the odd hours of

Criminal Appeal No.2112 of 2003 (The State v. Ikram ullah etc).

night and after distorting the true facts they resorted this story in a different way. PWs are inimical due to political rivalry and party faction and they have deposed due to suspicion and doubt.”

9.The learned trial court after evaluating the evidence available on record and in the light of arguments advanced from both sides, found that the prosecution has miserably failed to prove the allegations levelled against the accused (respondents), resulting into acquittal of the accused persons (respondents).

10.The instant appeal was instituted on 22.11.2003 and it was dismissed in limine to the extent of respondent No.1-Ikram ullah whereas notice was issued to respondent No.2 considering the role attributed to him but none was in attendance on behalf of respondent No.2-Abdaal despite issuance of bailable warrants of arrest. Hence, this matter is alive only to the extent of respondent No.2-Abdaal. As this Court has gone through the docket. As per acknowledgment for disposal of old cases, therefore, the cases can not be left open. As such, the arguments advanced by learned Law Officer present in Court have been heard and perused the available record annexed with this appeal.

11.A careful scrutiny of eye witness account, inquest report (Ex.PH), injury statement (Ex.PG), postmortem report (Ex.PC) and deposition of Dr. Muhammad Iqbal (PW-4) reveal that there is clear contradiction in ocular account and medical evidence. The complainant Arshad Mehmood (PW-5) specifically mentioned in the complaint/statement (Ex.PC) that co-accused Ikram ullah had made two fire shots which landed on the head and face of the deceased- Muhammad Ali and no overt act had been attributed to Abdaal accused (respondent No.2) and according to the prosecution story only Abdaal’s presence had been shown at the time of incident but thereafter after postmortem report, the complainant introduced a new

Criminal Appeal No.2112 of 2003 (The State v. Ikram ullah etc).

version through his supplementary statement (Ex.PC/2) wherein he stated that accused Abdaal (respondent No.2) also caused injuries on the different parts of the body of complainant’s father with his pistol. The complainant (PW-5) had made many improvements in his supplementary statement (Ex.PC/2), we noted that the complainant (PW-5) has tried to set up prosecution case in line with medical evidence. As eye witness account and medical evidence are at variance. Dr. Muhammad Iqbal had conducted postmortem examination of the body of deceased-Muhammad Ali and found 20 injuries thereon. Dr. Muhammad Iqbal (PW-4) deposed as under:- “According to police papers eight injuries were mentioned and all were with firearm weapon. This discrepancy was brought to the notice of S.H.O, Pahrianwali vide letter No.191 to 195 dated 20.03.2002.”

Opinion.

“After careful examination of dead body I was of the opinion that injuries No.1 to 20 were anti-mortem inflicted by a blunt weapon.”

12.Testimonies of prosecution witnesses, PW-5, PW-6 and PW-9 regarding nature of injuries and participation of respondent No.2 are materially inconsistent and contrary to the complainant’s version given in statement (Ex.PC) and F.I.R. (Ex.PC/1). In the instant case, major contradiction appears in the evidence of prosecution witnesses not only regarding the role attributed to him but also use of weapon. The prosecution case was full of glaring contradictions and material discrepancies. Apart from this, from the version given in the F.I.R. (Ex.PC/1) and supplementary statement (Ex.PC/2) it appears that the complainant does not witness the occurrence.

13.It is settled principle of law that for creating shadow of doubt in favour of accused many circumstances are not required, if the accused is able to create a slightest shadow of doubt in the prosecution

Criminal Appeal No.2112 of 2003 (The State v. Ikram ullah etc).

story, its benefit must got to the accused. From perusal of impugned judgment, it reveals that the learned trial court has discussed each aspect of the evidence minutely. It can, therefore, conveniently be said that the learned trial Judge has rightly recorded acquittal of the respondent No.2. It is settled principle of law that when an accused is acquitted from the charge after regular trial, he enjoys double presumption of innocence. In the case of “Muhammad Mansha Kausar v. Muhammad Asghar and others”(2003 SCMR 477) it is held by the Hon’ble Supreme Court of Pakistan that:- “Law relating to reappraisal of evidence in appeals against acquittal is stringent in that the presumption of innocence of accused is doubled and multiplied after a finding of not guilty is recorded by a competent court of law in his favour----Such finding cannot be reversed, upset and disturbed unless the same is found to be perverse, shocking, alarming, artificial and suffering from error of jurisdiction or misreading or non-reading of evidence.”

In this case, the prosecution has not been able to bring on record adequate incriminating evidence against respondent No.2 which may connects him with the crime.

14.In view of what has been discussed above, we find no merits in this appeal, which is hereby dismissed.

(Mazhar Iqbal Sidhu) (Aalia Neelum) Judge Judge

Approved for reporting.

A.S.Khan.