2020 SCMR 192

SUFYAN NAWAZ and another---Petitioners Versus The STATE and others---Respondents
Citation: 2020 SCMR 192

Result: Order Accordingly
Court: Supreme Court of Pakistan
Date of Decision: 21/10/2019
Judge(s): Maqbool Baqar, Manzoor Ahmad Malik and Sardar Tariq Masood, JJ
Case Number: Jail Petition No. 201 of 2015 and Criminal Petition No. 322-L of 2015
JUDGMENT
Summary of Judgment: Acquittal in Homicide Case

Introduction and Background (Para 1): The case involves the death of
Kabeer Ahmad, reported by Ghulam Mustafa, leading to FIR No. 399
under sections 302, 109, 34, P.P.C. The petitioner, Sufyan Nawaz, was
convicted and sentenced to death, with a compensation order. The trial
court acquitted some co-accused and converted Sufyan Nawaz's death
sentence to life imprisonment. This appeal challenges the conviction.
Prosecution's Allegations (Para 2-3): The prosecution alleges that,
following a land dispute and prior altercations, the petitioner and co-
accused attacked the complainant's side, resulting in Kabeer Ahmad's
death.
Critical Analysis of Prosecution's Timeline (Para 4): The prosecution's
timeline raises concerns, with a significant delay in the autopsy of about
ten hours, casting doubt on the presence of eye-witnesses.
Discrepancies in Witness Testimonies (Para 5): Witness testimonies,
especially that of complainant Muhammad Arshad, underwent material
changes regarding the direction of gunshot injuries. Arshad's status as a
chance witness and his unclear reason for being at the scene further
diminish the reliability of his account.
Exoneration of Juvenile Co-Accused (Para 6): Shahzad @ Dadu, accused of
inflicting fatal blows, was tried separately as a juvenile and acquitted. The
prosecution failed to challenge this acquittal, contributing to the overall
doubt regarding the case.
Rejection of Prosecution's Motive and Evidence (Para 7): The alleged
motive was disbelieved, and the recovery of a pistol from the petitioner
was discounted due to the absence of crucial evidence. The court
concluded that the prosecution failed to prove its case beyond reasonable
doubt.
Verdict and Acquittal (Para 8): Jail Petition No. 201 of 2015 is converted
into an appeal, resulting in the acquittal of Sufyan Nawaz. The conviction
and sentence are set aside, and he is ordered to be released forthwith.
Clarification on Observations (Para 9): Observations in the judgment are
clarified not to be relevant during the trial of the absconding co-accused,
emphasizing the need for the case to proceed based on evidence in
accordance with the law.
Dismissal of Sentence Enhancement Petition (Para 10): With Sufyan
Nawaz's acquittal, the petition for enhancing his sentence is rendered
irrelevant and subsequently dismissed.
Legal Context and Citation: The judgment references Section 302(b)/34 of
the Pakistan Penal Code (P.P.C.), which deals with liability in a murder
committed by several persons. Additionally, Section 544-A of the Code of
Criminal Procedure, relating to compensation orders, and Section 382-B,
allowing the benefit of doubt, are invoked in the decision. The court's
reliance on the absence of crucial evidence aligns with the principles of
evidence and proof in criminal cases.
ORDER
MANZOOR AHMAD MALIK, J.---Initially, this incident wherein
Kabeer Ahmad lost his life was reported to the police by Ghulam Mustafa
through a written application (Ex.PE), on the basis whereof FIR No. 399
dated 24.10.2005, under sections 302, 109, 34, P.P.C. was registered at
P.S. Gakhar Mandi, Wazirabad. Thereafter, being dissatisfied with the
investigation of case, Muhammad Arshad (uncle of deceased Muhammad
Kabeer and Ghulam Mustafa, complainant of FIR) instituted a private
complaint against the petitioner and his co-accused Arsalan, Shahzad @
Dadu, Ashfaq, Bahadur, Laal and Sohail Akhtar as the complainant of FIR
Ghulam Mustafa was abroad. The petitioner along with his co-accused
Ashfaq, Bahadur, Laal and Sohail Akhtar faced trial in the private
complaint. On conclusion of trial, the petitioner was convicted by the trial
court under section 302(b)/34, P.P.C. and sentenced to death. He was also
directed to pay compensation of Rs.200,000/- to the legal heirs of
deceased Kabeer Ahmad in terms of section 544-A, Code of Criminal
Procedure, in default whereof to undergo SI for six months. Through the
same judgment, the learned trial court acquitted co-accused Ashfaq,
Bahadur, Laal and Sohail by giving them benefit of doubt, whereas co-
accused Arslan remained a proclaimed absconder. Aggrieved of his
conviction and sentence, the convict-petitioner Sufyan Nawaz filed a
criminal appeal before the Lahore High Court, Lahore. A murder
reference was sent by the trial court for confirmation or otherwise of
sentence of death of petitioner. Through the impugned judgment, the
learned appellate court while maintaining conviction of petitioner,
converted his sentence of death into imprisonment for life. Murder
reference was accordingly answered in the negative. The learned High
Court also extended benefit of section 382-B, Code of Criminal Procedure
to the petitioner. Hence, the instant jail petition for leave to appeal.
2. Precisely, prosecution case as divulged from the contents of FIR as
well as private complaint is that in the aftermath of a land dispute and on
account of previous altercation between the parties, the petitioner and his
co-accused while armed with their respective weapons mounted an assault
on the complainant side, as a result whereof Kabeer Ahmad lost his life.
3. We have heard learned counsel for the convict-petitioner, learned
counsel for the complainant (petitioner in connected petition) as well as
learned Additional Prosecutor General, Punjab at length and have perused
the available record with their assistance.
4. The occurrence in this case, as per prosecution, has taken place on
24.10.2005 at 12.00 (noon), formal FIR whereof was registered on the
same day at 2.10 p.m., through a written application of Ghulam Mustafa.
As per postmortem examination report, autopsy on the dead body of
Kabeer Ahmad was conducted on 24.10.2005 at 10.00 p.m. The
unexplained delay of about ten hours in autopsy of Kabeer Ahmad
(deceased) alone creates dent in the prosecution story so far as presence
of eye-witnesses at the place of occurrence is concerned.
5. It is the case of prosecution in the FIR, which was got registered
through a written application of Ghulam Mustafa (brother of deceased
Kabeer Ahmad) that the fire so shot by petitioner with his pistol hit
Kabeer Ahmad on front of his chest, whereas the fire made by co-
accused Arslan hit Kabeer Ahmad on his back. In the private complaint
and while appearing before the trial court, complainant Muhammad
Arshad (PW7), who was also cited as an eye-witness in the FIR, made
material improvement by stating that the fire so shot by co-accused Arslan
hit Kabeer Ahmad on front of his chest. In his cross-examination, he was
duly confronted with this improvement. It has further been observed by us
that complainant Muhammad Arshad (PW7) while appearing before the
trial court stated that he was a cultivator; that he used to remain at his
fields round the clock and would come to village as and when needed. He
admitted that in his statement before police, he had not assigned any
reason for coming to village on the day of occurrence. In these
circumstances, complainant Muhammad Arshad (PW7) is, by all means, a
chance witness and his presence at the spot at the relevant time is not
free from doubt.
6. Both the eye-witnesses in their statements recorded before the trial
court fully implicated co-accused Shahzad @ Dadu with the role that he
inflicted Sota blows on the person of Kabeer Ahmad, which landed on his
nose and back. Dr. Muhammad Safdar (PW3), who conducted autopsy on
the person of Kabeer Ahmad (deceased) observed injured No.4 as a
lacerated wound on his nose, with further observation that nasal bone was
fractured. During the course of arguments, learned counsel for the
petitioner as well as learned counsel for complainant (petitioner in
connected petition) stated that Shahzad @ Dadu was tried separately for
being a juvenile and learned trial court, on conclusion of trial, by giving
him benefit of doubt, acquitted him of the charge. It is recorded in Para 14
of the impugned judgment that Crl. Misc. No. 682-M of 2011 filed against
the acquittal of co-accused of the petitioner was dismissed by the learned
High Court vide order dated 17.01.2012. No further petition or appeal has
been filed by the complainant against said acquittal.
7. The motive alleged by the prosecution has already been disbelieved
by the learned courts below. So far as recovery of pistol from the
petitioner is concerned, the learned High Court has discarded the same on
the ground that the investigating agency was not able to collect any empty
from the spot and the report of FSL is confined only to working condition
of that pistol. In these circumstances, we have no manner of doubt in our
mind that prosecution has failed to prove its case against the petitioner
beyond reasonable doubt.
8. For what has been discussed above, Jail Petition No. 201 of 2015 is
converted into an appeal and the same is hereby allowed. The conviction
and sentence of appellant Sufyan Nawaz are set aside. He is acquitted of
the charge framed against him. He is behind the bars and is ordered to be
released forthwith, if not required to be detained in any other case.
9. It is made clear that the observations given in this judgment shall not
be relevant during trial of absconding co-accused and his case shall be
decided on the basis of the evidence adduced by the parties (prosecution
and defence), strictly in accordance with law.
Criminal Petition No. 322-L of 2015
10. Since we have acquitted respondent No.1 Sufyan Nawaz of the charge
in the preceding paragraphs, therefore, instant criminal petition for
enhancement of his sentence has lost its relevance, which is dismissed
accordingly.

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SUFYAN NAWAZ and another---Petitioners Versus The STATE and others---Respondents

Citation: 2020 SCMR 192

Summary of Judgment: Acquittal in Homicide Case

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