Law: Pakistan Penal Code, 1860

Section: 302(b)

Testimony of witness--
----It is well settled by now that when a witness improves his statement to strengthen prosecution case and moment it is concluded that improvement was made deliberately and with mala fide intention testimony of such witness does not remain reliable.

Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conviction and sentence--Challenge to--Benefit of doubt--Qatl-e-amd--Contradiction between ocular account and medical evidence--Motive behind occurrence was that few days prior to incident, accused persons made aerial firing in front of house of complainant, who were forbidden in harsh tone by complainant due to illness of his father and because of said grudge accused persons committed murder of deceased and caused injuries to injured man--No exact date, time and place of motive incident have been mentioned in FIR--Moreover, motive incident was not reported to police by complainant party--If motive part of incident is admitted as true, then complainant would have been prime target of assailants instead of deceased, who allegedly forbidden appellant and his co-accused from making aerial firing--Furthermore, no independent witness qua motive was joined by police in investigation or produced by prosecution before trial Court during trial--Prosecution has failed to substantiate motive against appellant--So far as medical evidence is concerned, since have already discussed in preceding paragraph of this that there is contradiction between ocular account and medical evidence--Alleged recovery of 30 bore pistol at instance of appellant is concerned same is immaterial because report of Punjab Forensic Science Agency qua pistol is in negative--So far as defence plea taken by appellant in his statement under Section 342, Code of Criminal Procedure is concerned, since prosecution evidence is doubtful in nature, therefore, there is no need to discuss same which is exculpatory in nature--All pros and cons of this case and have come to this irresistible conclusion that prosecution could not prove its case against appellant beyond any shadow of doubt--Held: It is, by now well established principle of law that it is prosecution, which has to prove its case against accused by standing on its own Megs and it cannot take any benefit from weaknesses of case of defence--In instant case, prosecution remained failed to discharge its responsibility of proving case against appellant--Appeal was allowed.

Benefit of doubt--

----It is also well established that if there is a single circumstance which creates doubt regarding prosecution case, same is sufficient to benefit of doubt to accused, whereas, instant case is replete with number of circumstances which have created serious doubt about prosecution story.

2009 SCMR 230.

JUDGMENT

Shehram Sarwar Ch., J.--Imran (appellant) alongwith his co-accused namely Zeeshan alias Shani, Zahid,’Shahid and Irfan was tried by the learned Addl. Sessions Judge, Sahiwal in case FIR No. 142 dated 23.02.2014, offence under Sections 302, 324, 148 and 149, registered at Police Station Farid Town District Sahiwal for committing the murder of Sherdil (deceased and causing injuries to Muhammad Amjad (PW.3). Vide judgment dated 5.6.2017 passed by the learned trial Court, Imran (appellant) was convicted under Section 302(b), PPC and sentenced to death alongwith fine of Rs. 1,00,000/- (rupees one lakh only) and in default whereof to further undergo simple imprisonment for six months. He was further directed to pay Rs. 1,00,000/- (rupees one lakh only) as compensation under Section 544-A, Cr.P.C. to the legal heirs of deceased and the same shall be recovered as arrears of land revenue. It is pertinent to mention here that Zahid co-accused of the appellant was also convicted under Section 337(N)(2), PPC and sentenced to pay daman Rs. 30,000/- to Muhammad Amjad, injured, however, the said accused has not filed any appeal against the above said conviction/sentence as conceded by learned Law Officer as well as learned counsel for the complainant. Through the same judgment, learned trial Court acquitted Zeeshan alias Shani, Shahid and Irfan co-accused of the appellant while extending him benefit of doubt and against their acquittal Muhammad Afzal, complainant filed Crl. Appeal No. 708 of 2017. Muhammad Afzal (complainant) also filed Crl. Revision No. 291 of 2017 for enhancement of compensation imposed upon Imran, appellant. Assailing the above conviction and sentence, the appellant has filed the appeal in hand whereas the learned trial Court has sent Murder Reference No. 101 of 2017 for confirmation or otherwise the sentence of death of Imran (appellant) as required under Section 374 of the Code of Criminal Procedure. Since all these matters have arisen out of the same judgment, therefore, are being decided together through this single judgment.

2. Prosecution story, as set out in the FIR (Exh.PB/1) registered on the application (Exh.PB) of Muhammad Afzal, complainant (PW.2) is that on 23.02.2014 at about 7:30 p.m. Imran, Zahid, Zeeshan, Shahid, all armed with 30 bore pistols and Irfan armed with toka alongwith three unknown persons came in front of the house of complainant started abusing. The mother of complainant informed him that the accused persons were extending life threats while standing in front of the house whereupon complainant alongwith his brother Muhammad Amjad, Muhammad Akram and Arshad reached the spot. In the meanwhile Sherdil, friend of the complainant, also came there. As soon as they reached in front of the house the accused persons started firing. Imran (appellant) made a fire with pistol which landed on front of chest of Sherdil who fell down. Second fire was made by Zahid which hit on left arm of Amjad brother of the complainant. Third fire was made by Imran, hitting on the arm of Amjad and fourth fire made by Shahid also hit Amjad. The accused persons also made firing while entering the house of the complainant. On hue and cry of complainant party and hearing the report of firing, the accused persons fled away while brandishing their firearms and making firing. Sherdil succumbed to the injury on the spot whereas Amjad fell on the ground having smeared with blood. The deceased and the injured were shifted to hospital through 1122. Motive behind the occurrence was that few days prior to the incident, the accused persons made aerial firing in front of the house of complainant, who were forbidden in harsh tone by the complainant due to illness of his father and because of said grudge the accused persons committed the murder of Sherdil and caused injuries to Amjad.

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