--While appearing before trial Court complainant and (PW) did not utter even a single word about delay--

 PLJ 2021 Cr.C (Lahore) 891 (DB)

Delay--

----While appearing before trial Court complainant and (PW) did not utter even a single word about delay--That/this inordinate delay in setting machinery of law in motion speaks volumes against veracity of prosecution version.     [P. 894] A

Chance witnesses--

----Scope of--Presumption--Testimony of chance witness ordinarily is not accepted unless justifiable reasons are shown to establish his presence at crime scene at relevant time--In normal course, presumption under law would operate about his absence from crime spot--testimony of chance witness may be relied upon, provided some convincing explanations appealing to a prudent mind for his presence on crime spot are put forth, when occurrence took place otherwise his testimony would fall within category of suspect evidence and cannot be accepted without a pinch of sal.     [P. 895] B

Motive--

----Words were exchanged between parties--No cogent/convincing evidence qua motive was produced by prosecution during trial--Furthermore, no independent witness qua motive was joined by police in investigation or produced by prosecution before learned trial Court during trial--Prosecution has failed tol substantiate motive against appellants.                                                                                         [P. 896] C

Recovery of weapon--

----Evidentiary value--It is, by now, well established proposition of law that if crime empty is sent to FSL after arrest of accused or together with crime weapon, positive report of laboratory loses its evidentiary value.    [P. 896] D

Criminal Procedure Code, 1898 (V of 1898)--

----S. 342--Defence plea--So far as defence pleas taken by appellants in their statements under Section 342, since prosecution evidence is doubtful in nature, therefore, there is no need to discuss same which are exculpatory in nature.                                                                             [P. 897] E

Pakistan Penal Code, 1860 (XLV of 1860)--

----Ss. 302(b) & 34--Sentence--Challenge to--Ocular account--Benefit of doubt--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 legs and it cannot take any benefit from weaknesses of case of defence--Prosecution remained failed to discharge its responsibility of proving case against appellants--It is also well established that if there is a single circumstance which creates doubt regarding prosecution case, same is sufficient to give benefit of doubt to accused, whereas, instant case is replete with number of circumstances which have created serious doubt about prosecution story.   [P. 897] F

Rai Bashir Ahmad, Shamshad Ahmad Bajwa and Ms. Saiqa Javed, Advocates for Appellants.

Rai Akhtar Hussain, Deputy Prosecutor General for State.

Malik Muhammad Afzal Farooq and Kamran Bashir Mughal, Advocates for Complainant.

Date of hearing: 1.3.2021.

 PLJ 2021 Cr.C (Lahore) 891 (DB)
Present: Sadaqat Ali Khan and Shehram Sarwar Ch., JJ.
MUHAMMAD FEROZ and another--Appellants
versus
STATE and another--Respondents
Crl. A. Nos. 222-J, 757 & M.R. No. 419 of 2017, decided on 1.3.2021.

Judgment

Shehram Sarwar Ch., J.--Muhammad Feroz and Muhammad Imran (appellants) alongwith their co-accused namely Zahid Sultan were tried by the learned Addl. Sessions Judge, Sargodha in case FIR No. 377 dated 01.09.2013, offence under Sections 302 and 34, PPC registered at Police Station Saddar District Sargodha for the murder of Aman Ullah and Mst. Mumtaz Bibi (deceased). Vide judgment dated 28.02.2017 passed by the learned trial Court, Muhammad Feroz (appellant) was convicted under Section 302 (b), PPC for the murder of Aman Ullah (deceased) and sentenced to death. Muhammad Imran (appellant) was convicted under Section 302 (b), PPC for the murder of Mst. Mumtaz Bibi (deceased) and sentenced to death. The appellants were further directed to pay Rs. 2,00,000/- (rupees two lakh only) each as compensation under Section 544-A, Cr.P.C. to the legal heirs of Aman Ullah and Mst. Mumtaz Bibi (deceased) and in default whereof to further undergo simple imprisonment for six months each. Through the same judgment, learned trial Court acquitted Zahid Sultan co-accused of the appellants while extending him benefit of doubt and against his acquittal Muhammad Mazhar (complainant) has filed Crl. Appeal No. 757 of 2017. Assailing the above convictions and sentences, the appellants have filed the appeal in hand whereas the learned trial Court has sent Murder Reference No. 419 of 2017 for confirmation or otherwise of appellants' sentence of death as required under Section 374 of the Code of Criminal Procedure. Since all these matters have arisen out of the same judgment, therefore, the same are being decided together through this single judgment.

2. It is pertinent to mention here that during pendency of this case, Muhammad Khan father of Mst. Mumtaz Bibi (deceased) instituted a private complaint titled as “Muhammad Khan vs. Muhammad Mazhar etc” against the complainant party which has been dismissed by the learned trial Court and no Crl. PSLA was filed by Muhammad Khan.

3. Prosecution story, as set out in the FIR (Exh.PA/1) registered on the statement (Exh.PA) of Muhammad Mazhar, complainant (PW.10) is that he (complainant) was resident of Chak No. 98-Janubi and an agriculturalist. About two years ago, Muhammad Asghar was employee of Aman Ullah who took Rs. 1,50,000/- as advance from him. Thereafter, Muhammad Asghar left the job without any intimation to Aman Ullah who filed a civil suit against him which was decided in favour of Aman Ullah. On demand of money from Muhammad Asghar, his close relatives namely Muhammad Feroz and Muhammad Imran stood sureties of Muhammad Asghar for the return of amount. Aman Ullah off and on approached them for the recovery of amount who prolonged the same with lame excuses and finally they promised to pay the amount on 31.08.2013. On the said date at 10:00 p.m. complainant alongwith Aman Ullah and Muhammad Ramzan went to the house of Muhammad Imran etc. Complainant and Muhammad Ramzan stood near the door of the house while parking the motorcycle whereas Aman Ullah went in the Courtyard of the house for taking the amount. The electric bulb was lit. Muhammad Imran, Muhammad Feroz and Zahid Sultan were present in the Courtyard. Aman Ullah demanded amount from Muhammad Imran and Muhammad Feroz whereupon hot words were exchanged between them. On hearing hue and cry complainant and Muhammad Ramzan entered the Courtyard of the house and within their view Muhammad Feroz made consecutive fires with 30 bore pistol which landed on front, right and left side of abdomen as well as bladder of Aman Ullah who fell down after sustaining injuries. Thereafter, the accused persons committed the murder of their woman namely Mst. Mumtaz Bibi by inflicting churri and taisa blows in order to give wrong turn to the case.

4. After completion of investigation, report under Section 173, Code of Criminal Procedure was submitted in this case. Copies of relevant documents were provided to the appellants and their co-accused namely Zahid Sultan, as required under Section 265-C, Code of Criminal Procedure and formal charge was framed against them on 17.12.2013 to which they pleaded not guilty and claimed trial. Statements of the appellants and their co-accused under Section 342 of the Code of Criminal Procedure were recorded on 28.02.2017 wherein they refuted all the prosecution allegations levelled against them and professed their innocence. The appellants neither opted to appear as their own witnesses in disproof of the prosecution allegations as provided under Section 340(2) of the Code of Criminal Procedure nor did they produce any evidence in their defence. After conclusion of trial, the learned trial Court convicted and sentenced the appellants and acquitted their co-accused, as detailed above. Hence this appeal and murder reference.

5. We have heard learned counsel for the parties as well as the learned Deputy Prosecutor General for the State and gone through the record with their able assistance.

6. The occurrence in this case allegedly took place on 31.08.2013 at 10:00 p.m. whereas the matter was reported to the police on the same night at 1:00 a.m. The distance between police station and the place of occurrence is eleven kilometers. There is a delay of about three hours in reporting the crime to the police without any plausible explanation. It is also worth mentioning here that while appearing before the learned trial Court Muhammad Mazhar, complainant (PW.10) and Muhammad Ramzan (PW.11) did not utter even a single word about the above said delay. Therefore, we hold that this inordinate delay in setting the machinery of law in motion speaks volumes against the veracity of prosecution version. Reliance is placed on case law titled as “Altaf Hussain vs. The State” (2019 SCMR 274). Undisputedly, the postmortem examination of the dead-bodies of Aman Ullah and Mst. Mumtaz Bibi (deceased), respectively, was conducted about thirteen to fifteen hours after the occurrence. It has been held repeatedly by the Hon'ble Supreme Court of Pakistan that such noticeable delay is normally occasioned due to incomplete police papers necessary to be handed over to the Medical Officer to conduct the postmortem examination of dead body of the deceased which happens only when the complainant and police remain busy in consultation and preliminary inquiry regarding the culprits in such cases of unwitnessed occurrence. Reliance is placed on case law titled as “Irshad Ahmed vs. The State” (2011 SCMR 1190) and “Nazeer Ahmed vs The State” (2016 SCMR 1628).

7. Ocular account in this case consists of Muhammad Mazhar, complainant (PW.10) and Muhammad Ramzan (PW.11). The presence of both these witnesses on the spot at the relevant time is doubtful in nature because they did not receive even a scratch during the incident. Moreover, the occurrence did not take place at the time as mentioned in the FIR. If the time of incident as mentioned in the FIR and the time that lapsed between death and postmortem examination of the dead-bodies of both the deceased as noted by Dr. Muhammad Younis Siddiqui (PW.5) and Dr. Khalida Sultan (PW.6) is taken into consideration, it appears that the incident was happened much later to the time as mentioned in the FIR which has not been brought on the record. The story of both the above said PWs qua accompanying Aman Ullah (deceased) to the house of Muhammad Imran (appellant) for the return of borrowed amount at odd hours of night is improbable and does not appeal to a prudent mind. There is no mention in the FIR as to who caused injuries on the person of Mst. Mumtaz Bibi (deceased). The ocular account is in direct conflict with the medical evidence because in the FIR it was the case of complainant that Muhammad Mazhar (appellant) caused three firearm injuries on the person of Aman Ullah (deceased) whereas Dr. Muhammad Younis Siddiqui (PW.5) noted five firearm entry wounds as well as one sharp incised wound on the person of said deceased. Moreover, the injuries noted by Dr. Khalida Sultan (PW.6) on the person of Mst. Mumtaz Bibi (deceased) have not been described in the FIR. The occurrence allegedly took place in the area of Chak No. 34-Janubi whereas both the witnesses of ocular account were resident of 98-S.B which place as per cross examination of complainant (PW.10) is at a distance of forty kilometers away from the place of occurrence. Both these PWs have not given any plausible reason for their presence on the spot at the time of incident. They have no place of business or agricultural land near the place of incident. Therefore, we hold that both these PWs were chance witnesses. The testimony of chance witness ordinarily is not accepted unless justifiable reasons are shown to establish his presence at the crime scene at the relevant time. In normal course, the presumption under the law would operate about his absence from the crime spot. The testimony of chance witness may be relied upon, provided some convincing explanations appealing to a prudent mind for his presence on the crime spot are put forth, when the occurrence took place otherwise his testimony would fall within the category of suspect evidence and cannot be accepted without a pinch of salt. Reliance may be placed on the cases reported as “Mst Shazia Parveen vs. The State” (2014 SCMR 1197) and “Muhammad Rafique vs. The State” (2014 SCMR 1698). Therefore, we hold that evidence furnished by both the above said PWs is shaky in nature and cannot be relied upon for maintaining the sentences of the appellants.

8. Motive behind the occurrence was that about two years ago, Muhammad Asghar remained an employee of Aman Ullah who took Rs. 1,50,000/- as advance from him. Thereafter, Muhammad Asghar left the job without any intimation to Aman Ullah and filed a civil suit against him which was decided in favour of Aman Ullah. On demand of money from Muhammad Asghar, his close relatives namely Muhammad Feroz and Muhammad Imran stood sureties of Muhammad Asghar for the return of amount. Aman Ullah off and on approached them for the recovery of amount who prolonged the same with lame excuses and finally they promised to pay the amount on 31.08.2013. On the said date at 10:00 p.m. complainant alongwith Aman Ullah and Muhammad Ramzan went to the house of Muhammad Imran etc where hot words were exchanged between the appellants and Aman Ullah (deceased) and due to the said grudge the appellants committed his murder. No cogent/convincing evidence qua motive was produced by the prosecution during the trial. Furthermore, no independent witness qua motive was joined by police in investigation or produced by prosecution before the learned trial Court during trial. Therefore, we hold that prosecution has failed to substantiate motive against the appellants.

9. So far as the alleged recovery of .30 bore pistol at the instance of Muhammad Feroz (appellant) is concerned the same is immaterial because the appellant was arrested in this case on 25.09.2013 whereas crime empties were received in the office of Punjab Forensic Science Agency on 10.10.2013 i.e. after the arrest of the appellant. It is, by now, well established proposition of law that if the crime empty is sent to the Forensic Science Laboratory after the arrest of the accused or together with the crime weapon, the positive report of the said Laboratory loses its evidentiary value. Reliance in this respect is placed on the case of “Jehangir vs. Nazar Farid and another” (2002 SCMR 1986), “Israr Ali vs. The State” (2007 SCMR 525) and “Ali Sher and others vs. The State” (2008 SCMR 707). As far as alleged recovery of taisa at the instance of Muhammad Imran (appellant) is concerned the same does not advance the case of prosecution because the prosecution has failed to associate any independent witness of the locality and, thus, the mandatory provisions of Section 103, Cr.P.C. had flagrantly been violated in that regard. Reliance may be placed on case law titled as “Muhammad Ismail and others vs. The State” (2017 SCMR 898)

10. As far as medical evidence is concerned, since we have already discussed in preceding paragraph of this judgment that there is

contradiction between the ocular account and the medical evidence, therefore, there is no need to discuss the same again.

11. So far as the defence pleas taken by the appellants in their statements under Section 342, Code of Criminal Procedure are concerned, since the prosecution evidence is doubtful in nature, therefore, there is no need to discuss the same which are exculpatory in nature.

12. We have considered all the pros and cons of this case and have come to this irresistible conclusion that the prosecution could not prove its case against the appellants beyond any shadow of doubt. It is, by now well established principle of law that it is the prosecution, which has to prove its case against the accused by standing on its own legs and it cannot take any benefit from the weaknesses of the case of the defence. In the instant case, the prosecution remained failed to discharge its responsibility of proving the case against the appellants. It is also well established that if there is a single circumstance which creates doubt regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused, whereas, the instant case is replete with number of circumstances which have created serious doubt about the prosecution story. Reliance is place on case law titled as “Muhammad Akram versus The State” (2009 SCMR 230).

13. For the foregoing reasons, the appeal in hand filed by Muhammad Feroz and Muhammad Imran (appellants) is allowed, convictions and sentences awarded to them vide judgment dated 28.02.2017 passed by the learned Addl Sessions Judge, Sargodha are set aside and the appellants are acquitted of the charge levelled against them while extending them benefit of doubt. The appellants are in jail. They shall be released forthwith if not required to be detained in any other case.

14. Murder Reference No. 419 of 2017 is answered in the NEGATIVE and the sentence of death awarded to Muhammad Feroz and Muhammad Imran (convicts) is NOT CONFIRMED.

15. In view of above discussion, Crl. Appeal No. 757 of 2017 filed by the complainant against the acquittal of Zahid Sultan co-accused of the appellant having no substance is dismissed.

(R.A.)  Appeal allowed