PLJ 2021 Cr.C. (Note) 53
----S. 302(b)--Conviction and sentence--Challenge to--Qatl-e-Amd--By making such material improvements, witnesses compromised
with their own integrity which rendered them unworthy of any credence--No doubt testimony of a chance witness is not destined to be discarded out rightly and instead can still be looked into if corroborated from some other evidence of unimpeachable source--As per principles laid down for appraisal of evidence of an interested witness, in order to place explicit reliance on his testimony, Court has to look for independent corroboration--Medical evidence furnished by Dr. (PW.9) is also scanned--At very outset, it is observed that according to FIR (appellant) fired at (deceased) when he was running from him to save his life--In such an eventuality, injury should have been on back of leg of deceased--However, according to doctor entry wound on right leg of deceased was on front side with slight blackening--Though witnesses made improvement during their Court statements to cover this anomaly by omitting to mention that at relevant time deceased was on run, however, since this omission was duly taken note by defence by confronting them with their police statements, hence, cannot be used to advantage of prosecution--Mere is yet another aspect which arises out of statement of (PW.9) and casts a legitimate doubt about theory of crime advanced by prosecution--According to witnesses, firstly deceased was taken to a hospital in Hujra Shah Muqeem, wherefrom on account of precarious condition, he was referred to Jinnah Hospital, Lahore--A scrutiny of record reveals that in support of such claim no evidence, documentary or oral, was led by prosecution--Similarly, it is noticed that according to Dr. (PW.9) duration between injury and death was 5 to 6 hours, whereas between death and postmortem was 12 to 13 hours--Record of case is in eternal silence regarding afore-mentioned delay of 12 to 13 hours in holding autopsy--In given circumstances, reasonable inference which can be drawn from such delay in postmortem examination is to effect that time was consumed to concoct story and to procure attendance of witnesses--While looking for corroboration to lend some support to eye-witness account furnished by chance witnesses, High Court has also peeped through motive part of prosecution case--motive behind occurrence was canvassed as a land dispute--This dispute was arising out of a land deal in which (son of complainant) sold 27-kanals and 5 Marias of land to (appellant)--To be precise, in pursuance of a Court decree, land was transferred in name of (appellant) through mutation and its possession was also delivered to him by Tehsildar--It also came on record that (appellant) Invested four crops over same land--It is of immense to mention here that there was an admission on part of complainant that during lengthy litigation arising out of land dispute, (deceased) never remained its part--In given circumstances, it can be concluded that canvassed motive can safely be termed as a grudge to knit a false case rather than as a motivation to commit murder of an unconcerned person--Lastly, it is noticed that during investigation, appellants were consistently found innocent by Investigating Officers--Firstly, task of investigation was assigned to SI (CW.2) who declared appellants innocent--Later on, investigation was entrusted to Inspector (CW.I) who also arrived at same conclusion--High Court is not oblivious of fact that fate of a criminal case cannot be decided solely on basis of police opinion--However, if it is based upon some convincing material, then along with other circumstances of case, opinion of police can be considered--From in-depth analysis of police opinion, it emerges that while pronouncing innocence of- appellants Investigating Officer took notice of inconclusive motive, divergent statements of witnesses, their failure to explain presence at crime scene, delayed reporting to police, inordinate delay in postmortem examination and many other factors--In give situation, opinion of innocence expressed by police is providing additional strength to defence of appellants. [Para 12, 13, 14, 15 & 16] A, B, C, D, E & F
2017 SCMR 344, 2015 SCMR 1142, 2018 SCMR 506, 1997 SCMR 1076 and 2017 SCMR 54.
M/s. Muhammad Ahsan Bhoon, Advocate, Rustam Khan Padhyar, Advocate and Muhammad Sajid Tarar, Advocate for Appellants.
Mr. Muhammad Alamgir Khan, Advocate for Complainant.
Ms. Tahira Parveen, District Public Prosecutor for State.
Date of hearing: 10.4.2018.
PLJ 2021 Cr.C. (Note) 53
[Lahore High Court, Lahore]
Present: Ch. Abdul Aziz, J.
MUHAMMAD YOUNAS and others--Appellants
versus
STATE and others--Respondents
Crl. A. No. 1059, Crl. Rev. No. 711 & PSLA No. 204 of 2012,
heard on 10.4.2018.
Judgment
This judgment shall dispose of Criminal Appeal No. 1059 of 2012 (filed by appellant Muhammad Younas and Noor Ahmad against their conviction and sentence), Criminal Revision No. 711 of 2012 filed by Muhammad Din for conversion of sentence of life imprisonment awarded to Muhammad Younas and Noor Ahmad into death sentence) and PSLA No. 204 of 2012 (Filed by Muhammad Din against the acquittal of Muhammad Aslam). All these matters are originating from the consolidated judgment dated 16.05.2012 passed by the learned Additional Sessions Judge, Depalpur in a trial of private complaint titled as “Muhammad Din vs. Muhammad Younas and others” under Sections 364, 302, 148, 149-PPC. Regarding same occurrence, a State case was also filed which was also arising out of FIR No. 838 dated 13.11.2009 for the offence under Sections 302, 148, 149 PPC registered at Police Station Hujra Shah Moqeem, Depalpur. The learned trial Court vide judgment dated 16.05.2012 proceeded to convict and sentence the appellants in the following terms:
“Under Section 302(b) PPC to suffer imprisonment for life each for committing qatl-i-amd of Fazal Elahi (deceased). They were also directed to pay compensation Rs. 50,000/- each to the legal heirs of deceased under Section 544-A Cr.P.C and in default thereof undergo SI for six months each.”
2. The facts of the prosecution case as mentioned by Muhammad Din (PW.1) in FIR (Exh.PA/1) are to the effect that he was resident of Mauza Dhola Dhapi, Tehsil Depalpur, District Okara and was agriculturist by profession; that on the intervening night of 12/13.11.2009 Amanat Ali and Sabir Ali were sleeping in paddy fields to guard his crop; that at mid-night, his son Fazal Elahi (deceased) heard the reports of fire shots coming from his agricultural land and reached there; that Muhammad Younas, Noor Ahmad and Muhammad Aslam alongwith two unknown persons were already present there and were asking from Sabir Ali etc. about the son of complainant; that on noticing the presence of Fazal Elahi, the assailants overpowered him and demanded to give them the land under litigation; that in case of failure to hand over the land, his son was threatened to be killed; that the accused persons, took Fazal Elahi with them on gun point to the disputed piece of land; that on reaching there, Muhammad Aslam exhorted his companions to kill Fazal Elahi; that when Fazal Elahi made an effort to run away from the spot, Noor Ahmad fired from his weapon which hit on the right leg of Fazal Elahi; that after the receipt of injury, Fazal Elahi ran to save his life but Muhammad Younas fired from behind which hit on the left shoulder and went through and through; that the accused persons decamped from the spot while resorting to aerial firing; that Fazal Elahi was immediately shifted to THQ, Hospital, Hujra Shah Muqeem, wherefrom on account of his precarious condition, he was referred to Jinnah Hospital, Lahore, where he died. The motive behind occurrence was stated to be a land dispute with Muhammad Younas etc.
3. On 13.11.2009, Manzoor Hussain SI (CW.2) after receiving information of the occurrence reached
Investigation of this case was also conducted by Muhammad Alamgir inspector (CW.1) who opined that Muhammad Younas (appellant) was not involved in the commission of crime, whereas, Noor Ahmad (appellant) fired in self defence in retaliation to the firing made by Fazal Elahi (deceased). Likewise, Manzoor Ahmad SI (CW.2) also arrived at the conclusion that the accused nominated in the crime report are innocent.
4. Feeling dissatisfied from the investigation conducted by the police, Muhammad Din (PW.1) filed complaint (Exh.PA) on 01.09.2010, on which the trial of the case was held. During trial Muhammad Din (complainant/PW.1), in order to prove his case against the appellants produced nine PWs including Muhammad Sabir (PW.2) and Amamat Ali (PW.3) who are the eye-witnesses of the occurrence. Dr. Muhammad Sharif (PW.9), who furnished medical evidence. Learned trial Court also examined two Court witnesses, namely, Muhammad Alamgir Inspector (CW.l), Manzoor Hussain SI (CW.2) who investigated the case.
5. On 13.11.2009 at 6:30 p.m. Dr. Muhammad Sharif (PW.9) conducted the post-mortem examination of Fazal Elahi (deceased), during which he observed following injuries:
1. A fire-arm lacerated wound 1 ½ x ¾ cm. deep going margins inverted at back and lower part of left chest (near lumber area) 9 cm. away from midline (entry wound).
2. A fire-arm lacerated wound 3 x1 ¾ cm. going deep margins were everted at front and lower part of left chest, 11 cm below left nipple at seven o clock position. (Exit of Injury No. 1).
3. A fire-arm lacerated wound ¾ x ¾ cm x deep going margins were inverted with slight blackening at it was present, at front and lower part of an inner part of right knee, (entry wound).
4. A fire-arm wound 1 x 1 cm x deep going margins were everted at inner and lower part of right thigh 5 cm above the right knee joint (exit of Injury No. 3)
The Doctor gave following opinion:-
“After external and internal postmortem examination of this dead body the cause of death in my opinion was due to severe haemorrhage and traumatic shock resulted by Injury No. 1
and 2 with additive effect of Injury No. 3 and 4. All injuries were result of fire-arms weapon and were ante mortem and were sufficient to cause death in ordinary course of nature.”
According to Doctor, the probable time between injury and death was about five to six hours whereas, between death and postmortem was within 12 to 13 hours.
6. After the conclusion of prosecution evidence, the learned trial Court examined the appellants under Section 342 Cr.P.C. Muhammad Younas (appellant) who in response to question “why this case against you and why the PWs deposed against you” gave a lengthy reply, the detail of which is mentioned in para-16 of the impugned judgment. The appellants neither opted to make statement under Section 340 (2) of Cr.P.C. nor produced any witness in their defence. However, Muhammad Younas (appellant) tendered in defence evidence certified copies of different documents in support of his possession of the disputed property and detail of litigation relating to it as Exh.DF to Exh.DU. On the conclusion of trial, Muhammad Younas and Muhammad Amin (appellants) were convicted and sentenced as mentioned above, whereas Muhammad Aslam was acquitted from the case, hence, the instant appeal, criminal revision and PLSA.
7. It is contended by the learned counsel for the appellants that the instant case is arising out of a night occurrence, the exact time of which was not brought on record either during investigation or at trial stage; that the matter was reported to police on the following day at about 8:30 a.m. and no explanation was offered for such delay; that even the postmortem of the deceased was conducted with the delay of 12-13 hours which casts further doubt regarding the prosecution case; that the private complaint on which trial was held also suffers with delay of about 10-months; that during trial, the ocular account was furnished by witnesses, who miserably failed to justify their presence at the crime scene, thus were chance witnesses; that the eye-witnesses, contradicted each other in all material aspects; that even otherwise, the detail of occurrence furnished by eye-witnesses was strongly belied by the medical” evidence brought on record through Dr. Muhammad Sharif; that the perusal of statements of eye-witnesses reasonably proves that all of them made false statements before the Court which rendered them unworthy of any reliance; that the matter was extensively investigated by different police officers, who unanimously opined about the innocence of appellants and that the recital of prosecution case gives rise to a reasonable doubt, the benefit of which was not extended to the appellants.
8. Conversely, learned DPP assisted by learned counsel for the complainant strongly controverted the arguments advanced on behalf of the appellants and submitted that though the FIR was registered with some delay, however, its causes were reasonably explained during trial; that the ocular account of the occurrence was brought on record through the witnesses who were residents of the same vicinity and confidently explained their presence at the crime scene; that the eye-witnesses gave all the necessary details of the occurrence and held Muhammad Younas and Moor Ahmad responsible for causing fatal injuries on the body of deceased; that the ocular account was duly supported from the medical evidence, hence, there is no justifiable reason to discard it; that the motive, which was not only proved but even admitted by the appellants is providing additional corroboration to the case of prosecution; that though the investigating officers gave opinion adverse to the case of complainant, however, since it was not based on some material, hence, is destined to be discarded; that since the accused persons committed the cold blooded murder of a young man without any justifiable reasons, hence, deserves no leniency in conviction.
9. While advancing arguments in PSLA No. 204 of 2012, learned counsel submitted that the reasons assigned by the learned trial Court for the acquittal of Muhammad Aslam can safely be termed as perverse in nature; that it was proved through prosecution evidence that Muhammad Aslam was an active participant of the crime and in such circumstances, the acquittal of Muhammad Aslam is not sustainable and is liable to be convicted.
10. Arguments heard. Record perused.
11. A review of record reveals that the occurrence which formed basis of the instant case took place on the night falling in between 12/13.11.2009 in a vicinity known as Dhola Dubai situated within the territorial jurisdiction of Police Station Hujra Shah Muqeem, District Okara. According to record, the intervening distance between crime scene and police station Hujra Shah Muaqeem was 4-1/2 kilometers. Though in the FIR the actual time of the occurrence was not mentioned, however, during trial, it was stated as “12 midnight”. The law was set into motion through application (Exh.PA) presented before Manzoor Hussain SI (CW.2) at about 8:30 a.m. on 13.11.2009 during his visit to
“Thereafter Fazal Elahi was shifted to PS and after receiving docket he was taken to hospital Hujra Shah Muqeem where he was medically examined and was referred to
Such unexplained and mysterious delay insinuates doubts and suspicion about the tale of occurrence mentioned in the crime report.
12. A wade through the record reveals that during trial the detail of occurrence was brought on record through three witnesses namely, Muhammad Din (complainant), Muhammad Sabir and Amanat Ali (PW. 1 to PW.3). So far as, Muhammad Din and Sabir Ali PWs are concerned, they were father and cousin of Fazal Elahi (deceased). So far as Amanat Ali (PW.3) is concerned, he was brother in law (Hamzulf) of Sabir Ali (PW.2). Though according to the contents of FIR (Exh.PA/1) the occurrence was witnessed by Sabir Ali and Amanat Ali (PW.2 & PW.3), however, during trial, Muhammad Din (PW.1) made dishonest improvements and claimed to have witnessed the occurrence. In this regard, an extract from the statement of Muhammad Din (PW.1) is being reproduced below:
I had stated in my application Exh.PA and complaint Exh.PB when I covered the distance of one acre I heard a fire shot and also hue and cry. Confronted with Exh.PA and Exh.PB wherein it is not so recorded. I have stated in my application Exh.PA and my private complaint Exh.PB that when I reached the spot my son Fazal Elahi was falling on the ground and he was in his senses. Confronted with Exh.PA and Exh.PB wherein it is not so recorded.”
A scrutiny of record reveals that Muhammad Sabir and Amanat Ali (PW.2 & PW.3) also improved their statements before Court and canvassed Muhammad Din (PW.1) as eye-witness of the occurrence. It further emerges from record that this was not the solitary improvement made by the witnesses in their Court statements. An analysis of record reveals that the three witnesses were found guilty of making multiple improvements which were material in nature. Through these improvements, besides making Muhammad Din (PW.1) as an eye-witness of the occurrence, a statement of deceased stated to have been made by him after receipt of injuries was brought on record and was projected as dying declaration. Likewise, a last ditch effort was made to counter the weaknesses of prosecution case which were exposed during investigation. Not only this, the witnesses also concealed some very important aspects in their Court statements like arrival of the deceased at the crime scene while armed with gun in order to take forcible possession of the, land comprising motive part of the prosecution case. Keeping in view importance of this aspect, a portion from the cross-examination of Amanat Ali (PW.3) is being mentioned below:
“I did not state before the I.O that at about 11-1/2 p.m. Fazal Elahi deceased came to us having double barrel gun with him and a bag consisting the bullets. Confronted with Exh.DE where it is so recorded in portion B to B. I did not state before the I.O mat we both asked Fazal Elahi deceased as where he was going at which Fazal Elahi told that they had to take possession of the land that day. Confronted with Exh.DE where it is so recorded in portion C to C.”
By making such material improvements, the witnesses compromised with their own integrity which rendered them unworthy of any credence. Reference in this respect can be made to the case of Sardar Bibi and another v. Munir Ahmed and others (2017 SCMR 344) wherein the Hon’ble Supreme Court of Pakistan gave the following observation:
“According to the doctor, there was only one fire-arm entry wound on the chest of the deceased Zafar Iqbal. In order to meet this situation, witnesses for the first time, during trial made omission and did not allege that the fire shot of Sultan hit at the chest of Zafar Iqbal, deceased. So the improvements and omissions were made by the witnesses in order to bring the case of prosecution in line with the medical evidence. Such dishonest and deliberate improvement and omission made them unreliable and they are not trustworthy witnesses.”
According to record, in the days of occurrence, Sabir Ali (PW.2) was residing in Dera constructed over his agricultural land situated at a distance of 6/7 acres from the place of occurrence. So far as, Amanat Ali (PW.3) is concerned, he was resident of a place known as Sardar Heera Singh having distance of 3/4 kilometers from the crime scene. It is evident from record that the two witnesses were not present at the eventful place out of their routine, rather it spells out from record that they were present there to guard the paddy crop belonging to Muhammad Din (PW.1). Such explanation for their presence at the crime scene appears to be nothing but a jumble of lie when seen in the context that both of them were hailing from agriculturist families having reasonable land. In particular, Amanat Ali was owner of 32/33 acres of agricultural land situated in his village. Since the two eye-witnesses were neither the residents of the place of occurrence nor as per their routine were supposed to be present there, hence, without any hesitation can be termed as chance witnesses. No doubt the testimony of a chance witness is not destined to be discarded out rightly and instead can still be looked into if corroborated from some other evidence of unimpeachable source. Reference in this respect can be made to the case of Mst. Sughra Begum and another v. Qaiser Pervez and others (2015 SCMR 1142) wherein the Hon’ble Supreme Court of Pakistan observed as under:
“A chance witness, in legal parlance is the one who claims that he was present on the crime spot at the fateful time, albeit, his presence there was a sheer chance as in the ordinary course of business, place of residence and normal course of events, he was not supposed to be present on the spot but at a place where he resides, carries on business or runs day to day life affairs. It is in this context that 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. True that in rare cases, the testimony of chance witness may be relied upon, provided some convincing explanations appealing to 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”.
In another reported case titled as G.M. Niaz v. The State (2018 SCMR 506), the Hon’ble Supreme Court of Pakistan while appraising the evidence of chance witnesses observed as under:
“The ocular account of the incident in issue had been furnished before the trial Court by Mahboob Ahmed complainant (PW6) and Qasim Ali (PW5) who were a brother and a paternal cousin of the deceased respectively. The said eye-witnesses were not only very closely related to the deceased but they were also chance witnesses who had utterly failed to bring anything on the record establishing their claimed presence with the deceased at the relevant time. Mahboob Ahmed complainant (PW6) had his residence far away from the spot and the same had not even been shown anywhere close to the place of occurrence in the site-plan.”
This Court is also mindful of the fact that the occurrence took place at the odd hours of the night, hence, prosecution was obliged to explain satisfactorily the source of light, in order to rule out the possibility of mistaken identity. It is noticed that none of the witnesses made reference to any such source of light. Similarly, material discrepancies are found existent in the statements of Muhammad Sabir and Amanat Ali (PW.2 & PW.3). According to Muhammad Sabir (PW.2), deceased died in
13. It is also borne out from the record that Muhammad Din (PW.1) was locked in multiple litigations with Muhammad Younas (appellant) on account of afore-mentioned land dispute. On one hand Muhammad Younas filed a declaratory suit against Muhammad Din (PW.1) which was decreed in his favour and on other hand Muhammad Din in order to frustrate the decree issued by the civil Court filed a case for cancellation of gift deed which was later dismissed. As this was not enough Muhammad Din (P.W. 1) made at least two attempts to get a case registered against Muhammad Younas (appellant) which remained unsuccessful. The land dispute and chain of litigations between the parties reasonably reflect that Muhammad Din (PW.1) was having deep rooted grudge against the appellants. This aspect of the matter further makes Muhammad Din, Muhammad Sabir and Amanat Ali as partisan and interested witnesses. As per principles laid down for the appraisal of evidence of an interested witness, in order to place explicit reliance on his testimony, the Court has to look for independent corroboration. While holding so, we are enlightened from the observation of the Hon’ble Supreme Court of Pakistan expressed in the case titled as Umar Hayat and 3 others v. The State (1997 SCMR 1076) which is as under:
“It is a settled position of law that evidence of a partisan witness requires corroboration before the same is relied on for conviction. In the case of Muhammad Nawaz v. Abdul Khaliq and others (1971 SCMR 500) the prosecution witnesses were not only related inter se but they were also related with the deceased and it was held that such evidence required some corroboration to ensure the witnesses were speaking the truth.”
14. In order to arrive at a just conclusion, the medical evidence furnished by Dr. Muhammad Sharif (PW.9) is also scanned. At the very outset, it is observed that according to FIR (Exh.PA/1), Noor Ahmad (appellant) fired at Fazal Elahi (deceased) when he was running from him to save his life. In such an eventuality, the injury should have been on the back of the leg of deceased. However, according to doctor the entry wound on the right leg of deceased was on the front side with slight blackening. Though the witnesses made improvement during their Court statements to cover this anomaly by omitting to mention that at the relevant time the deceased was on the run, however, since this omission was duly taken note by the defence by confronting them with their police statements, hence, cannot be used to the advantage of prosecution. There is yet another aspect which arises out of the statement of Dr. Muhammad Sharif (PW.9) and casts a legitimate doubt about the theory of crime advanced by prosecution. According to the witnesses, firstly the deceased was taken to a hospital in Hujra Shah Muqeem, wherefrom on account of precarious condition, he was referred to
“Post-mortem examination of the dead body of Muhammad Shahbaz deceased had been conducted after nine hours of the incident which again was a factor pointing towards a possibility that the time had been consumed by the local police and complainant party in procuring and planting eye-witnesses and cooking up a story for the prosecution.”
15. While looking for the corroboration to lend some support to the eye-witness account furnished by chance witnesses, this Court has also peeped through the motive part of the prosecution case. The motive behind the occurrence was canvassed as a land dispute. This dispute was arising out of a land deal in which Istikhar (son of complainant) sold 27-kanals and 5
16. Lastly, it is noticed that during investigation, the appellants were consistently found innocent by the Investigating Officers. Firstly, the task of investigation was assigned to Manzoor Ahmad SI (CW.2) who declared the appellants innocent. Later on, the investigation was entrusted to Muhammad Alamgir Inspector (CW.I) who also arrived at same conclusion. This Court is not oblivious of the fact that the fate of a criminal case cannot be decided solely on the basis of police opinion. However, if it is based upon some convincing material, then along with other circumstances of the case, the opinion of the police can be considered. From the in-depth analysis of the police opinion, it emerges that while pronouncing innocence of appellants the Investigating Officer took notice of inconclusive motive, divergent statements of the witnesses, their failure to explain presence at crime scene, delayed reporting to police, inordinate delay in postmortem examination and many other factors. In the give situation, the opinion of innocence expressed by police is providing additional strength to the defence of appellants.
17. In the light of what has been discussed above, I allow Criminal Appeal No. 1059 of 2012 and acquit appellants, namely, Muhammad Younas and Noor Ahmad while giving them the benefit of doubt. They are in custody, be released forthwith if not required to be detained in any other criminal case.
18. For the foregoing reasons, PSJLA No. 204 of 2012 against the acquittal of Muhammad Aslam respondent stands dismissed.
19. Since Muhammad Younas and Noor Ahmad respondents have been acquitted, Criminal Revision No/711 of 2012 has become infructuous. It is accordingly dismissed.
(A.A.K.) Appeal allowed
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