PLJ 2023 Cr.C. (Note) 282
PLJ 2023 Cr.C. (Note) 282
[Lahore High Court, Lahore]
Present: Sadaqat Ali Khan, J.
ALLAH JIVAYA (DIVAYA)--Appellant
versus
STATE etc.--Respondents
Crl. A. No. 2207
& Crl. Rev. No. 1060 of
2010, heard on 16.5.2022.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(c)--Punishment of--Qatl-i-amd--Imprisonment--Appellant has only been convicted on basis of his;
statement recorded under Section 342, Cr.P.C. wherein he had advanced a plea of grave and sudden provocation--Held: The
law is settled by now that if prosecution fails to prove its case against an
accused person then accused person is to be acquitted even if he had taken a
plea and had thereby admitted killing of deceased--The law is equally settled
that statement of an accused person recorded under Section 342, Cr.P.C. is to be accepted or rejected in its entirety--It
is unfortunate that trial Court has failed to apply said settled law to facts
of case in hand--Further held: It is settled principle of law that
for giving benefit of doubt, it is not necessary that there should be many
circumstances creating doubt--If there is a circumstance which creates
reasonable doubt in prudent mind about guilt of accused, then he would be
entitled to its benefit not as a matter of grace or concession, but as of
right--Appeal accepted. [Para 4 & 5] A
& B
2013 SCMR 383.
Mr. Irfan Riaz Gondal, Advocate with Appellant (on bail).
Mr. Nisar Ahmed Virk, DPG for State.
M/s. Khawar Mahboob Malik and Ijaz Haider Ghaffari, Advocates for
Complainant.
Date of hearing:
16.5.2022.
Judgment
Appellant (Allah Jivaya (Divaya)) along with his co-accused i.e. Said Amir Ghulam Abbas, Muhammad Anwar and Muhammad Azam (since acquitted) has been tried by learned
trial Court in private complaint under Sections 302, 34, 148, 149, PPC arising
out of case FIR No. 145 dated 01.07.2009 Police Station Wan Bachran, District Mianwali, and was convicted and sentenced vide judgement dated 30.07.2010 as under:
Allah Jivaya (Divaya) (appellant)
u/S. 302(c),
PPC Sentenced to imprisonment for 25
years for committing Qatl-i-Amd of Muhammad Nawaz
(deceased) with compensation of Rs. 3,00,000/-payable to legal heirs of the deceased u/S. 544-A, Cr.P.C. and in default whereof to further undergo simple
imprisonment for 6-months.
Benefit
of Section 382-B, Cr.P.C. was also extended to
him.
2. Appellant has filed
this criminal appeal against his conviction whereas complainant has filed
criminal revision for enhancement of his sentences which are being decided
through this single judgment.
3. Heard. Record
perused.
4. Unnecessary facts
apart, Muhammad Nawaz was done to death in the house of Ghulam Abbas co-accused (since acquitted) on
01.07.2009 at 08:30 a.m., FIR was lodged on the same day at 10:00 a.m. on the
statement of his brother Atta Muhammad (PW-4), who and his brother Said
Muhammad (PW-5) while claiming themselves to be the eye-witnesses of the
occurrence stated in their statements before the learned trial Court that on
01.07.2009 they alongwith Noor Muhammad
(given up PW) came to Muhammad Shahwala to take money Rs. 50,000/-from Muhammad Nawaz (deceased), who (deceased) told him that
he had to take money from Ghulam Abbas co-accused (since acquitted), so they alongwith deceased went to the house of Ghulam Abbas situated at Shadia village, reached there at 08:30 a.m. sat on
the cots lying in front of Bhaithak of Ghulam Abbas. Muhammad
Nawaz (deceased) called Ghulam Abbas from his house who came to the Bhaithak where they were sitting, then Ghulam Abbas co-accused (since acquitted) called
Muhammad Nawaz (deceased) in his room as soon as he entered into the room
adjacent to the Baithak of the
house, Ghulam Abbas co-accused
(since acquitted) raised lalkara to teach him a lesson for playing with the family honour and asked his co-accused that Muhammad Nawaz
should not be left alive, within their view Said Amir co-accused made fire shot
with his .12 bore gun hitting on the left palm of Muhammad Nawaz
(deceased), second fire shot made by Muhammad Anwar co-accused hit on the upper
left arm of Muhammad Nawaz (deceased), Allah Jivaya (Divaya) (appellant) made fire shot with gun which hit on the chest of Muhammad
Nawaz (deceased), fire shot made by Muhammad Azam co-accused hit on the right side of abdomen
of Muhammad Nawaz (deceased). Said Amir, Muhammad Anwar and Muhammad Azam (co accused) who were attributed effective
role of firing on the person of deceased have been acquitted by learned trial
Court through the impugned judgment by disbelieving the evidence of the
prosecution (same is not believable against the appellant in absence of
independent corroborative piece of evidence which is conspicuously missing in
this case), rather learned trial Court has specifically observed in Paragraph
No. 27 of the impugned judgment that prosecution has failed to prove its case
beyond shadow of doubt against all the accused. PSLA No. 237 of 2010 filed by
the complainant against acquittal of above said accused was dismissed having
been withdrawn by this Court vide order dated 06.02.2017.
Appellant has only been convicted on the basis of his statement recorded under
Section 342, Cr.P.C. wherein he had
advanced a plea of grave and sudden provocation. The law is settled by now that
if the prosecution fails to prove its case against an accused person then the
accused person is to be acquitted even if he had taken a plea and had thereby admitted
killing of deceased. The law is equally settled that statement of an accused
person recorded under Section 342, Cr.P.C. is to be accepted or rejected in its entirety. It is unfortunate that
learned trial Court has failed to apply the said settled law to the facts of
the case in hand. (2013 SCMR 383) “Azhar Igbal vs. The State”.
5. In view of the
above discussion, I entertain serious doubt in my mind regarding participation
of the appellant in the present case. It is settled principle of law that for
giving benefit of doubt, it is not necessary that there should be many circumstances
creating doubt. If there is a circumstance which creates reasonable doubt in
the prudent mind about the guilt of the accused, then he would be entitled to
its benefit not as a matter of grace or concession, but as of right.
6. For the foregoing
reasons, instant criminal appeal is accepted, conviction and sentences of the
appellant (Allah Jivaya (Divayal) awarded by the learned trial Court through the
impugned judgment are hereby set-aside. He is acquitted of the charges. He is
present on bail, his surety stands discharged.
7. In view of the
above decision, Crl. Revision filed by the
complainant for enhancement of the sentences of the appellant, having become
infructuous is disposed of.
(A.A.K.) Appeal
accepted
.jfif)
