PLJ 2021 Cr.C. (Note) 35
Chance witness--
----A chance witness, in legal sense, is one who claims to be present at place of occurrence at time of occurrence though his presence there was a sheer chance as in ordinary course of business. [Para 13] A
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conviction and sentence--Challenge to--Benefit of doubt--Chance witness--Ocular account--Abscondance--Corroborative piece of evidence--No one other than related witnesses, who were riding bus at that time, were examined during investigation or trial of case--Investigating Officer was-under a binding duty to collect evidence and his failure has to be taken as a circumstance belying prosecution case--Purpose of trial is discovery of truth--As long as men keep lying only causality would be truth--Prosecution case suffers from inherent defects which are irreconcilable as it is--In such a case ocular account is to be rejected as being contrary to medical evidence--Prosecution case in that sense is contrary to medical evidence available on record--Held: When eye-witness had been disbelieved against some accused persons: attributed effective roles then same eye-witnesses could not be believed against co-accused attributed a similar role--With respect to recoveries of weapons from appellants it has been observed that report of Forensic Science Laboratory was sought with regard to the weapons and it only mentions that weapons were in working order--This in no manner corroborates case of complainant--Police did not associate any residents of locality in investigation for purpose of recovery--Said recovery, proceedings were conducted in violation of Section 103 of Cr.P.C. and thus are hit by exclusionary rule of evidence and cannot be considered--As we have disbelieved ocular account in this case, hence evidence of motive and recovery would have no consequence--It is an admitted rule of appreciation of evidence that motive and recovery are only corroborative pieces of evidence and if ocular account is found to be unreliable then motive and recovery have no evidentiary value and lost their significance--Held: It is settled principle of law that for giving benefit of doubt it is not necessary that there should be so many circumstances rather if only a single circumstance creating doubt in mind of a prudent mind is available then such benefit is to be extended to an accused not as a matter of concession but as of right--Appeal was accepted.
[Para 15, 17, 18, 19 & 21] B, C, D, E & G
2010 SCMR 949, 2007 SCMR 1812, 2018 SCMR 344 &
2009 SCMR 230.
Abscondence--
----Abscondence has never been considered in isolation and is only a corroborative piece of evidence. [Para 20] F
2006 SCMR 1707 and 2010 SCMR 566.
M/s. Muddasar Altaf Qureshi and Mian Babar Saleem, Advocates for Appellants.
Mr. Muhammad Ali Shahab, District Prosecutor, General for State
Sheikh Muhammad Raheem, Advocate, for Complainant.
Date of hearing: 13.11.2018.
PLJ 2021 Cr.C. (Note) 35
[Lahore High Court, Multan Bench]
Present: Sadaqat Ali Khan and Sadiq Mahmud Khurram, JJ.
SHAH BEHRAM and another--Appellant
versus
STATE, etc.--Respondents
Crl. A. No. 78-J of 2014 & M.R. No. 03 of 2013, heard on 13.11.2018.
Judgment
Sadiq Mahmud Khurram, J.--Zahoor Ahmad son of Mussa, and Shah Behram son of Muhammad Shafi were tried by the learned Addl. Sessions Judge, Sahiwal, in case instituted upon Private Complaint titled “Ashiq Ali vs. Zahoor Ahmad and 5 others” (relating to FIR No. 598/2002 dated 18.11.2002 registered at Police Station Noor Shah, District Layyah under Sections 302, 148 and 149, PPC) for committing Qatl-e-Amd of the complainant’s son namely Khawar Abbas (deceased) and one Muhammad Amin (husband of the sister of complainant’s wife). The co-accused of the appellants namely Basharat son of Abdul Jabbar, Sadiq son of Amin and Ashiq son of Ghulam (all since acquitted) were tried earlier in a separate trial and acquitted by the learned trial Court vide its judgment dated 12.03.2005. The co-accused of the appellants namely Noor Ahmad son of Mussa died during the trial of the appellants. The learned trial Court vide judgment dated 17.12.2012 convicted Zahoor Ahmad son of Mussa and Shah Behram son of Shafi and sentenced them as infra:
1) Zahoor Ahmad son of Mussa:
i) Death under Section 302(b), PPC as Tazir for committing Qatl-e-Amd of Khawar-Abbas deceased and pay Rs. 1 Lac as compensation u/S. 544-A, Cr.P.C. and in. default. thereof to further undergo six months of simple imprisonment. The convict was ordered to be hanged by his neck till dead.
2) Shah Behram son of Shafi:
i) Death under Section 302(b), PPC as Tazir for committing Qatl-e-Amd of Muhammad Amin deceased and pay Rs. l Lac as compensation u/S. 544-A, Cr.P.C. and in default thereof; to further undergo six months of simple imprisonment. The convict was ordered to be hanged by his neck till dead.
2. Feeling aggrieved, Zahoor Ahmad son of Mussa and Shah Behram son of Muhammad Shafi, (convicts) lodged Criminal appeal No. 78-J of 2014 against their conviction and sentence. The learned trial Court submitted Murder Reference No. 03 of 2013 under Section 374, Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to appellants Zahoor Ahmad son of Mussa and Shah Behram son of Muhammad Shafi. We intend to dispose of both the Criminal Appeal No. 78-J of 2014 and Murder Reference No. 03 of 2013, through this single judgment.
3. Precisely the facts necessary, as divulged in the statement of Muhammad Ashiq Ali (PW-3), are as under:
“On 18.11.2002, 1 along with Muhammad Nawaz my brother, Khawar Abbas deceased my son, my wife Mst. Makhtoolan Bibi, were going to chak No. 57/4-R to see Muhammad Ameen my “Hum Zulf”. We had boarded a bus from Chak No. 57/4-R for Sahiwal. At that time, Muhammad. Ameen and Mst. Rasolan Bibi W/O Muhammad Ameen were also with us. At about 7.00 a.m. on the same day, the bus stopped at Chak No. 64’/4-R so as to make other passengers sit in the Bus. Noor Ahmad accused at that time were standing on the road who asked the driver to wait as some passengers were about to come. In the meantime Zahoor Ahmad accused present in the Court armed with Pistol, Shah Behram accused armed with 12 bore pistol who is also present in the Court along with Basharat, Sadiq and Ashiq also armed with fire-arm accused (since acquitted) reached there. Khawar Abbas and Muhammad Ameen deceased sitting in the Bus opposite the Driver seat. I, Mst. Rasoolan Bibi and Nawaz were sitting on the rear seat. Zahoor Ahmad and Shah Behram accused persons boarded the bus whereas remaining accused remained outside the Bus. Zahoor Ahmad accused, fired with his pistol which hit on the back side of Khawar Abbas deceased who fell on the seat. Zahoor Ahmad and Shah Behram accused pulled down Muhammad Ameen from the Bus-, Shah Behram accused fired with his, pistol which hit on the right upper arm of Muhammad Ameen. Sadiq accused since acquitted fired at Muhammad Ameen hitting on his right shoulder who also fell down on the ground. Basharat and Ashiq also reasoned to firing. I, Muhammad Nawaz, Mst. Rasoolan Bibi and Makhtoolan Bibi witnessed the occurrence. The accused persons made good their escape along with their weapon towards North. Khawar Abbas and Muhammad Ameen succumbed to the injuries at the spot.
The motive for this occurrence was that prior to this occurrence, Talib Hussain, brother of Zahoor Ahmad accused was murdered and the case for his murder was registered against my son Ali Ahmad and Imran S/o Afzal. Due to this grudge, the accused persons have committed the murder of my son Khawar, Abbas and my “HUM ZULF” Muhamamd: Ameen. I left Mst. Makhtoolan- Bibi and Mst. Rasoolan Bibi and Muhammad Nawaz to guard the dead body and 1 lodged the report with the police vide my statement Exh.P/C which I made to the Thenedar in the area of Chak No. 65/4-R on the same day about 8.00 a.m. which was read over to me and I signed the same in token of its correctness. The police during the investigation declared Ashiq, Basharat and Sadiq (since acquitted) to be innocent and as such I filed the private complaint in this case which is Exh.P/D which was dictated by me to my counsel and after admitting its contents to be correct, I signed the same.
I had joined the investigation of this case. The police had taken into possession blood stained, earth from underneath the dead body of Khawar Abbas deceased which was taken into possession vide recovery memo. Exh.P/E. The police also took into possession from underneath the dead body of Muhammad Ameen deceased, which was taken into possession vide recovery Exh.P/F. I and Muhammad Nawaz attested the recovery memo. The accused present before the Court had absconded after this occurrence. On 13.12.2009 Zahoor Ahmad accused while in police custody made disclosure and led to the recovery of pistol P/6 from Bushes near pull Barshad in the area of Chak No. 50/GD which was taken into possession vide recover memo. Exh.P/G.I attested the recovery memo. On 12.1.2010, Shah Behram accused while in police custody made disclosure and led to the recovery of pistol P/7 loaded with live cartridges P/8 from his house which was taken into possession vide recovery memo. Exh.P/H.I and my son Hassan attested the same.”
4. The learned trial Court framed charges against the appellants on 05.06.2010 to which they pleaded not guilty and the learned trial Court proceeded to examine the prosecution witnesses.
5. The prosecution/complainant in order to prove its case got recorded statements of as many as five witnesses. Bashir appeared as PW-1 who identified the dead body of Khawar Abbas and also was a witness to the last worn clothes of the deceased Khawar Abbas taken into possession through recovery memo. (Exh.PA). Muhammad Sarwar appeared as PW-2 who identified the dead body of Muhammad Amin and also was a witness to the last worn clothes of the deceased Khawar Abbas taken into possession through recovery memo. (Exh.PB). Muhammad Saeed Akhtar, Draftsman (PW-5) prepared the scaled site-plan of the place of occurrence (Ex.PJ). The ocular account of the case was furnished by Muhammad Ashiq Ali (PW-3) and Mst. Rasoolan Bibi widow of Muhammad Amin (PW-4), The complainant gave up witnesses Muhammad Nawaz and Mst. Makhtoolan Bibi as being unnecessary vide his statement recorded on 21.10.2011. The learned trial Court also examined as many as twelve witnesses as Court Witnesses. Maqbool Ahmad 996/C took the blood stained earth for chemical analysis to Lahore. Saifullah ASI (PW-3) executed the warrants of arrest of the appellants Zahoor Ahmad and Shah Behram and also affixed a copy of the proclamation on the main gate of the houses of the appellants. Muhammad Tahir, ASI, (CW-4) recorded the formal FIR (Exh.PC/1). Imdad Ali (CW-5) was the first Investigating Offxer till 29.03.2003. Shabbir Hussain SI (CW-6) also investigated the case from 18.11.2009 till 14.12:2009. Shabbir Hussain SI (CW-6) arrested the accused Noor Ahmad (since dead) and appellant Zahoor Ahmad on 03.12.2009 and effected recovery of pistol 12 bore from him Muhammad Adil, Inspector/Incharge investigation (CW-7), investigated the case on 22.01.2010. Asghar Ali 30/C (CW-8) took the parceI of pistol to Forensic Science Laboratory. Asghar Ali SI (CW-9) arrested the appellant Shah Behram and effected the recovery of pistol 12 bore from his possession. Imtiaz Ali 48/C (CW-10) took the dead bodies for their post-mortem examination and received the last worn clothes of deceased Muhammad Amin which were taken into possession through recovery memo. Exh.PB, Bashir Ahmad SI (CW-11) recorded the statement of Saif Ullah 801/C. Muhammad Amin Moharrar (CW-12) received the parcel said to contain gun.
6. Dr. Syed Azhar Abbas (CW-2), who was posted as Senor Medical Officer at RHC Noor Shah, Tehsil and District Sahiwal, on 18.11.2002 and conducted the post-mortem examination of the deceased Khawar Abbas and issued the post-mortem report. (Ex.CW-2/A). He observed as under:
“INJURY:
1. A lacerated wound 4 cm x 3 cm on the right scapular area near medial border at mid at junction of neck with back.
INTERNAL DISSECTION:
“On dissection injury was going deep and forward and to the left underlying muscle and bones were damaged: On opening the thorax two pellets were recovered from muscles of anterior thorasic wall at base of neck. One pellet was recovered from left anterior chest wall. Haenatone was present just corresponding to injury on right lung. Wad was recovered deep to Injury No. 1 left lung was damaged 2.5 to 3 liter of freed blood was found in thorasic cavity. Heart was ruptured through and through. One pellet was found in the blood. All other organs were healthy. Stomach contained some semi digested food particals. Large intestine was containing faecle matter and gases. Bladder contained two M.L. of urine.”
OPINION
“The death in this case was caused by Injury No. 1 due to damage of vital organs leading to massive haemorrhage, .shock and death. This was fire-arm injury and was ante, mortem in nature, which was sufficient to cause death in ordinary course of nature.”
The probable time between injuries and death was immediate to ten minutes and ‘between death and post-mortem was six to ten hours.”
Dr. Syed Azhar Abbas (CW. 2), Senor Medical Officer: at RHC Noor Shah. Tehsil and District Sahiwal, on 18.11.2002 also conducted, the post-mortem examination of the deceased Muhammad Amin and issued the post-mortem report (Exh,CW-2/B). He observed as under.
“EXTERNAL EXAMINATION
1. A lacerated wound 2 x 2 cm. going deep with burning inverted margins ‘C shape on supero anterior side. Margins were inverted:
2. A lacerated wound, 1.5 x 1 cm. going deep 1 CM. above the Injury No. 1.
3. A lacerated wound inverted margins 2 CM, posterior . to Injury No. 1.
4. An abrasion like area 1 x 2.5 CM, about 3 CM. posterior to Injury No. 3.
5. A lacerated wound 1.2 x 2 CM. on the upper redial part of right arm on latoral of arm pit. Margins everted.
6. A lacerated wound with everted margins 3x2 CM, on the inner side of arm 2. CM posterior to injury No. 5.
7. Six punctured wounds of various/different sizes on lateral wall of chest, (medial wall of arm in area of 10 x3 CM.
8. A bruised area six x seven CM. on laterial side of left chest.
Opinion
The death in this case was due to Injury Nos. 1 and 7 caused by fire-arm weapons leading to massive hameorrhage shock and death. It was ante mortem in nature and was ‘Sufficient to cause death in ordinary course of nature.”
7. On 8.11.2012 the learned ADPP gave up PW-Hassan Raza being unnecessary. On 21.11.2012 the learned ADPP closed the prosecution evidence after tendering the reports of Serologist (Exh.PK/1) (Exh.PL/1) and the reports of Chemical Examiner (Exh.PK) and (Exh.PL) and the reports of Forensic Science Laboratory (Exh.PM) and (Exh.PN)
8. After the closure of prosecution evidence, the learned trial Court examined Zahoor Ahmad and Shah Behram appellants under Section 342, Cr.P.C. who both denied their involvement in the occurrence and claimed that they had been implicated in the case due to previous enmity.
Neither the appellants opted to get themselves examined under Section 340(2), Cr.P.C. nor adduced any evidence in their defence.
9. On the conclusion of the trial, the learned Addl. Sessions Judget Sahiwal, convicted and sentenced the appellants as referred to above.
10. The contention of the learned defence counsels for the appellants precisely is that whole case is fabricated and false. That the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence. They also contended that PWs examined by prosecution were related to the deceased and interested. They argued that the case of complainant was rightly to be disbelieved for the reason that already Sadiq co-accused, who had been attributed a fire on the right shoulder of deceased Muhammad Amin, had been acquitted and the said acquittal was still in field. They also argued that the motive, as alleged by the complainant, was also the reason for the false involvement of the appellants. They further argued that the medical evidence was in contradiction to the ocular account. They also argued that the recoveries were result of fake proceedings. They finally submitted that the prosecution has totally failed to prove the case against the accused beyond the shadow of doubt.
11. On the other hand, learned Deputy Prosecutor General along with the learned counsel for the complainant contended that the prosecution has proved its case beyond shadow of doubt by producing independent witnesses. He further stated that Muhammad Ashiq Ali (PW-3) and Mst. Rasoolan Bibi (PW-4) corroborated each other and successfully brought home the charges leveled against the appellants beyond shadow of doubt. They further argued that the recovery of weapons from the appellants further corroborated the ocular account. They contended, that the appellants remained absconders for a period of seven years after the occurrence which established their guilt. They argued that the appellants had admitted the motive and there was no occasion for the prosecution witnesses to substitute the real offenders with the innocent in this case. Lastly, they prayed for the rejection of appeal.
12. We have heard the learned counsel for the appellants and learned Deputy Prosecutor General and with their assistance perused the record and evidence recorded during the trial carefully.
13. We have noticed that initially the FIR No. 598 of 2002 (Exh.PC/1) was investigated, however, the complainant Muhammad Ashiq Ali (PW-3) filed the instant private complaint titled “Muhammad. Ashiq Ali vs. Zahoor Ahmad and 5 others” being dissatisfied with the investigation conducted by the police and failure to arrest any of the accused. We have observed that Muhammad Ashiq Ali (PW-3) and Mst, Rasoolan Bibi (PW-4) while recording their statements before the learned trial Court made a slight shift in the sequence of their travelling detail. As per the oral statement (Exh.PC) got recorded by Muhammad Ashiq Ali (PW-3) it was stated that he along with others had gone to Chak No. 57/4-R and on the day of occurrence boarded a bus proceeding to Sahiwal when it reached Chak No. 64/4-R. However, while appearing, before the learned trial Court Muhammad Ashiq Ali (PW-3) and Mst, Rasoolan Bibi (PW-4) both the witnesses stated that on 18.11.2002 they were going to Chak No. 57/4-R to see Muhammad Hanif deceased. This statement is in direct Contrast to the sequence as mentioned in the FIR. A chance witness, in legal sense, is the one who claims to be present at the place of occurrence at the time of occurrence though his presence there was a sheer chance as in ordinary course of business. Both the witnesses Muhammad Ashiq Ali (PW-3) and Mst. Rasoolan Bibi (PW-4) are chance witnesses as per this definition because it was not their daily routine to visit Chak No. 57/4-R or to proceed to Sahiwal. In this manner they had to be doubly cautious while making their statements before the learned trial Court. This shift which they have made though seems to be slight, however, in-the general scenario of the case has attained fundamental importance. The witnesses were under a duty to prove their presence by making consistent and unimpeachable statements. The very inception is now in doubt. It is hard to say whether the said Muhammad Ashiq Ali (PW-3) and Mst. Rasoolan Bibi (PW-4) were already travelling from Chak No. 57/4-R to Sahiwal or otherwise .going to Chak No. 57/4-R.
14. We have also observed that as per Muhammad Ashiq Ali (PW-3) and Mst. Rasoolan Bibi (PW-4) the incident of firing at the deceased Khawar Abbas happened inside the bus. Muhammad Ashiq Ali (PW-3) and Mst. Rasoolan Bibi (PW-4) stated that allegedly Zahoor Ahmad appellant fired when Khawar Abbas (deceased) was inside the bus and the deceased after receiving the fire fell on the seat. Contrary to this, the same Muhammad Ashiq Ali (PW-3) stated that police took into possession blood stained earth from underneath the dead body of Khawar Abbas (deceased) vide recovery memo. Exh.PE. Similar statement was made by Imdad Ali SI (CW-5) who investigated the case and prepared the recovery memo. Exh.PE with regard to taking into possession the blood stained earth from underneath the body of Khawar Abbas (deceased). We have perused the statement of Imdad Ali SI (CW-5) who stated that he did not collect the blood of the deceased Khawar Abbas from inside the bus. This witness further stated that he ‘took into possession the whole bus, however, this was a dishonest statement made in order to favour the complainant party. We have carefully perused the whole record and no such bus was taken into possession during the investigation of the case.
15. We have also noticed that as per Muhammad Ashiq Ali (PW-3) and Mst. Rasoolan Bibi (PW-4) the occurrence took place inside the bus regarding the murder of Khawar Abbas (deceased). However, neither the driver of the bus nor the conductor was examined during the investigation of the case. It is further an admitted aspect of the case that no one other than the related witnesses, who were riding the bus at that time, were examined during the investigation or the trial of the case. The -Investigating Officer was-under a binding duty to collect evidence and his failure has to be taken as a circumstance belying the prosecution case. The purpose of trial is the discovery of truth. As long as men keep lying the only causality would be the truth. The prosecution case suffers from inherent defects which are irreconcilable as it is. The guidance is sought from the binding decisions of the august Supreme Court of Pakistan in case titled Nadeem alias Nanha alias BillaSher vs. The State (2010 SCMR 949) wherein it has been observed as under:
“... further that no independent witness of the locality where the incident took place, a ‘Bazar’ joined, made case of the prosecution doubtful. It is cardinal principle of Criminal Jurisprudence that any genuine doubt arising out of the circumstances of the case should be extended to the accused as of the right and not as concession. It is difficult to say that prosecution has proved its case beyond shadow of doubt.”
16. We have also observed that Muhammad Ashiq Ali (PW-3) while being cross-examined replied that clothes of the witnesses were stained blood, however, the said clothes were not taken into possession by the Investigating Officer. Imdad Ali SI (CW-5) who otherwise showed extraordinary interest in the case did not take the clothes of the eye-witnesses which were stained with blood, into possession because if these were sent to the Chemical Examiner for examination and grouping with that of the blood-stained clothes of the deceased, the same would have provided the strongest corroboration to the testimony of the two eye-witnesses namely Muhammad Ashiq Ali
(PW-3) and Mst. Rasoolah Bibi (PW-4). This omission strikes at the roots of the case of the prosecution and speaks volumes about the dishonest and false claim of the said witnesses to have been present at the place of occurrence at the time of occurrence. Both these witnesses were under a duty to provide convincing explanation appealing to a prudent mind of their presence at the crime spot otherwise their testimony has to be declared suspect and unacceptable.
17. We have also observed that as per Muhammad Ashiq Ali (PW-3) and Mst. Rasoolah Bibi (PW-4) fire at the deceased Khawar Abbas (deceased) was allegedly made by the appellant Zahoor Ahmad when he boarded the bus. Had this been the position”blackening would have been observed at the time of post-mortem on the body of Khawar Abbas (deceased). Contrary to this when Dr. Syed Azhar. Abbas-
(CW-2) conducted post-mortem on the body of the deceased Khawar Abbas he did not observe any blackening. This circumstance also proves the absence of Muhammad Ashiq Ali (PW-3) and Mst. Rasoolah Bibi (PW-4) at the crime scene at the time of occurrence. In such a case the ocular account is to be rejected as being contrary to the medical evidence. Reliance is placed on Barkat Ali vs. Muhamad Asif and others (2007 SCMR 1812) wherein it has been observed as infra:
“It is a settled law that blackening appears on the dead body in case the deceased has received injuries at a distance of 4 feet; according to medical jurisprudence by Modi. It is a settled law that oral evidence cannot be accepted to the extent of its inconsistency with medical evidence. See Mardan Ali’s case, 1980 SCMR 889, Bagh Ali’s case 1983 SCMR 1292, Sain Dad’s case 1972 SCMR 74 and Zardshad’s case 1969 SCMR 644.”
18. As per record the earlier trial of the three co-accused namely Basharat, Ashiq and Sadiq resulted in their acquittal. The said acquittal of the above mentioned co-accused is still holding field. As per the statements of Muhammad Ashiq Ali (PW. 3) and Mst. Rasoolan Bibi (PW. 4), the co-accused Sadiq (since acquitted) had fired at Muhammad Amin deceased hitting on his right shoulder. In the same vein the Witnesses namely Muhammad Ashiq Ali (PW. 3) and Mst, Rasoolan Bibi (PW. 4) have stated that Shah Behram appellant fired with his pistol which hit on the right upper arm of Muhammad. Amin (deceased). The post-mortem on the dead body of the deceased Muhammad Amin was conducted by Dr. Syed Azhar Abbas (CW-2) as detailed above. As per the observation of Dr. Syed Azhar Abbas (CW-2) there were eight injuries on the person of the deceased Muhammad Amin. Injury No. 5, which was on the right arm, was an exit wound. This is the injury which has been now attributed to Shahberham appellant. This being an exit wound requires no further discussion. Moreover, the Injuries No. 1, 2 and 3, as observed by Dr. Syed Azhar Abbas (CW-2) on the person of Muhammad Amin deceased, were present closed to each other on supero anterior side. These injuries cannot be attributed to either the appellant Shah Behram or Sadiq (since acquitted). Injury No. 7, as observed by Dr. Syed Azhart Abbas (CW-2) on the person of Muhammad Amin deceased, was again present on the lateral wall of the chest. No such attribution has been made either to Shah Behram appellants or Sadiq (since acquitted). The prosecution case in that sense is contrary to the medical evidence available on record. Reliance is place on the binding judgment of the August Supreme Court of Pakistan “Imtiaz Ali alias Taj vs. The State and-others” (2018 SCMR 344) wherein it has been held that when the eye-witness had been disbelieved against some accused persons attributed effective roles then the same eye-witnesses could not be believed against the co-accused attributed a similar role.
19. Learned District Prosecutor General along with learned counsel for the complainant has also relied upon the recoveries made from the appellants. With respect to recoveries of weapons from the appellants it has been observed that report of Forensic Science Laboratory was sought with regard to the weapons and it only mentions that the weapons were in working order. This in no manner corroborates the case of the complainant. With have observed that the police did not associate any residents of the locality in the investigation for the purpose of recovery. The said recovery, proceedings were conducted in violation of Section 103 of Cr.P.C. and thus are hit by the exclusionary rule of evidence and cannot be considered. As we have disbelieved the ocular account in this case, hence the evidence of motive and the recovery would have no consequence. It is an admitted rule of appreciation of evidence that motive and recovery are only corroborative pieces of evidence and if the ocular account is found to be unreliable then motive and recovery have no evidentiary value and lost their significance.
20. Learned District Prosecutor General along with learned counsel for the complainant has also laid much premium on the abscondence of the appellants as proof of their guilt. Suffice is to say that abscondence has never been considered in isolation and is only a corroborative piece of evidence. Reliance is placed on the cases of “Muhammad Farooq and another vs. The State” (2006 SCMR 1707) and “Rohtas Khan vs. The State” (2010 SCMR 566).
21. Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of Zahoor Ahmad and Shah Behram appellants in the present case. It is settled principle of law that for giving benefit of doubt it is not necessary that there should be so many circumstances rather if only a single circumstance creating reasonable doubt in the mind of a prudent mind is available then such benefit is to be extended to an accused not as a matter of concession but as of right. Reliance is place on the binding judgment of the august Supreme Court of Pakistan Muhammad Akram vs. The State (2009 SCMR 230) in which it has been observed in Paragraph No. 13 of Page 236 as infra:
“It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating, doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then, the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right”.
22. For what has been discussed above, Criminal Appeal No. 78-J of 2014 filed by Shah Behram and Zahoor Ahmad appellants is accepted and the conviction and sentences of the appellants awarded by the learned trial Court through the impugned judgment dated 17.12.2012 are hereby set-aside. Shah Behram and Zahoor Ahmad appellants are ordered to be acquitted. They are directed to be released forthwith if not required in any other case.
23. Murder Reference is. answered in the Negative and the death sentence of Shah Behram and Zahoor Ahmad appellants is Not Confirmed.
(A.A.K.) Appeal accepted
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