PLJ 2021 Cr.C. 1493 (DB)
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conviction and sentence--Challenge to--Benefit of doubt--Motive--Suspicion illicit relation with his daughter--No independent witness--Medical evidence--Motive as set out in FIR and brought before trial Court was to effect that accused had suspicion that deceased has illicit relations with (deceased) daughter of “M”--Admittedly, motive part of incident is based upon suspicion but law is settled that suspicion howsoever grave or strong can never be a proper substitute for proof beyond reasonable doubt required in a criminal case--No independent witness qua motive was associated during course of investigation or brought in witness box at trial--Prosecution has failed to substantiate motive against appellant--So far as alleged recovery of 30 bore pistol at instance of appellant which was taken into possession vide recovery memo. is concerned, suffice it to observe that same is a corroborative piece of evidence and relevant only if primary evidence i.e. ocular account inspires confidence, which is not situation in this case--Medical evidence produced by prosecution was hot of much avail to prosecution because murder in issue had remained unwitnessed and thus medical evidence could not point an accusing finger towards any of culprits implicated in this case--Prosecution could not prove its case against appellant beyond any shadow of doubt--Held: 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--In instant case, prosecution remained failed to discharge its responsibility of proving case against appellant--Appeal was allowed.
[Pp. 1497 & 1498] B, C, D, E & F
2016 SCMR 1019, 2016 SCMR 1617 and 2016 SCMR 1605.
Testimony of chance witness--
----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 a chance witness may be relied upon, provided some convincing explanations appealing to a prudent mind for his presence at 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 salt. [P. 1497] A
Benefit of doubt--
----Principle--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. 1498] G
2014 SCMR 1698, 2015 SCMR 1142 & 2016 SCMR 2021.
Ch. Daud Ahmad Wains, Muhammad Amjad Malik and Ch. Muhammad Shahid Ansari, Advocates for Appellant
Malik Mudassar Ali, Deputy Prosecutor General for State.
Nemo for Complainant.
Date of hearing: 14.6.2021.
PLJ 2021 Cr.C. 1493 (DB)
[Lahore High Court, Multan Bench]
Present: Sadaqat Ali Khan and Shehram Sarwar Ch., JJ.
MUHAMMAD SHAHID--Appellant
versus
STATE and another--Respondents
Crl. A. No. 762 & M.R. 125 of 2016, heard on 14.6.2021.
Judgment
Shehram Sarwar Ch., J.--Muhammad Shahid (appellant) along with his co-accused namely Muhammad Sabir and Muhammad Nadeem was tried by the learned Addl. Sessions Judge, Lodhran in case FIR No. 308 dated 12.09.2014, offence under Sections 302 and 34, PPC, registered at Police Station Gaily Wall District Lodhran for murder of Nasrullah (deceased) son of complainant and Mst, Shazia Bibi daughter of Muhammad Afzal. Vide judgment dated 08.08.2016 passed by the learned trial Court, the appellant has been convicted under Section 302(b), PPC and sentenced to death on two counts, with a further direction to pay Rs. 2,00,000/- (rupees two lakh only) as compensation under Section 544-A, Cr.P.C. to the legal heirs of each deceased and in default whereof to further undergo simple imprisonment for six months. Through the same judgment, Muhammad Sabir and Muhammad Nadeem, co-accused of the appellant were acquitted of the charge and no appeal against their acquittal was filed either by the State or the complainant, as conceded by learned Deputy Prosecutor General. Assailing the above convictions and sentences, the appellant has filed the appeal in hand whereas the learned trial Court has sent Murder Reference No. 125 of 2016 for confirmation or otherwise of the appellant’s sentence of death, as required under Section 374 of the Code of Criminal Procedure. Since both these matters have arisen out of the same judgment, therefore, are being decided together through this single judgment.
2. Prosecution story, as set out in the FIR (Ex.PJ) registered on the statement (Ex.PA) of Haji Muhammad Yar, complainant (PW.1) is that on 12.09.2014, he was sleeping in his house. As usual, his sons Nasrullah and Himayatullah were sleeping outside their grocery shop to guard the same situated at a distance of about 1½/2 acres from the house. Before azan, the complainant went to the shop to see his sons in routine where he found Himayatullah sleeping on the cot alone. The complainant asked Himayatullah about Nasrullah, who told that Shahid (appellant) had come at night and took Nasrullah with him stating that his maternal grandfather Manzoor Ahmad was sick and he has to be taken to the doctor for medical aid. On that information, the complainant and Himayatullah proceeded towards the house of Manzoor Ahmad to ask about his health and on the way, Muhammad Azhar met and accompanied them. Small door of outer gate of the house of Manzoor Ahmad was open and the bulb was lit in the courtyard. The complainant and his companions entered the courtyard where Shahid (appellant) armed with pistol and Muhammad Sabir were also present. Within the view of complainant party, Shahid started firing at Nasrullah son of complainant and the fire shots hit on his left biceps and left side of chest, who fell down in injured condition. The complainant party attended Nasrullah who succumbed to the injuries on the spot. The accused escaped from the spot while raising lalkara that besides Nasrullah, they had killed Shazia Bibi daughter of Muhammad Afzal. Subsequently, the complainant party got information regarding murder of Mst. Shazia Bibi by the accused. Motive behind the occurrence as alleged in the FIR was that the accused had suspicion that Nasiuilah (deceased) has illicit relations with Mst. Shazia Bibi (deceased) daughter of Muhammad Afzal.
3. We have heard arguments of learned counsel for the appellant as well as the learned Deputy Prosecutor General for the State at a considerable length and have also gone through the record very minutely.
4. The ocular account in this case has been furnished before the learned trial Court by Haji Muhammad Yar, complainant (PW.1) and Muhammad Azhar (PW.2), who were closely related to the deceased being his father (PW.1) and maternal cousin (PW.2) and were chance witnesses because they were neither residents of the place of occurrence nor have any place of business over there. The witnesses of ocular account are residents of Mauza Rawani whereas the occurrence took place in the house of Muhammad Afzal (given up PW) and Muhammad Sabir (since acquitted) situated in Galandra Chowk of Mauza Rawani. It was claim of both the eye-witnesses that as stated by Himayatullah (given up PW), Muhammad Shahid (appellant) came to their shop at night and told Nasrullah (deceased) that his maternal grandfather Manzoor Ahmad was sick, so he has to be taken to the doctor and the deceased accompanied him. It was stated by both the witnesses of ocular account that they went towards the house of Manzoor Ahmad to ask about his health. The story of eye-witnesses regarding asking about the health of Manzoor Ahmad before azan of fajar prayer appears to be improbable because the occurrence, as per scaled site-plan (Ex.PH), took place in the house of Muhammad Afzal (given up PW) and Muhammad Sabir (since acquitted) and no evidence was brought on record that said Manzoor Ahmad was also residing in the same house. Moreover, it does not appeal to a prudent mind that the deceased would accompany the appellant at odd hours of night as according to prosecution, the appellant’s side has suspicion that the deceased had illicit relations with Mst. Shazia Bibi (deceased). Even otherwise, it was a night time occurrence and case of eye-witnesses was that a bulb was lit in the Courtyard of house but no such bulb was taken into possession by Ameer Ahmad, S.I./I.O. (PW.11). The statement of Namaz Ali, Incharge Grid Station Basti Malook was recorded as DW.1 who has stated in his examination-in-chief that as per record, the electricity was not available in Mauza Rawani from 3.00 a.m. to 4.00 a.m. on the night of occurrence. Before the learned trial Court, the eye-witnesses have utterly failed to establish their presence on the place of occurrence at relevant time. 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. The testimony of a chance witness may be relied upon, provided some convincing explanations appealing to a prudent mind for his presence at 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 case law reported as “Muhammad Rafiaue vs. The State” (2014 SCMR 1698), “Mst. Sughra Begum and another vs. Qaiser Pervez and others” (2015 SCMR 1142) and “Muhammad Javed vs. The State” (2016 SCMR 2021). All these factors clearly suggest that it was an unwitnessed occurrence and the alleged eye-witnesses were not present on the spot.
5. The motive as set out in the FIR and brought before the learned trial Court was to the effect that the accused had suspicion that Nasrullah (deceased) has illicit relations with Mst. Shazia Bibi (deceased) daughter of Muhammad Afzal. Admittedly, the motive part of incident is based upon suspicion but the law is settled that suspicion howsoever grave or strong can never be a proper substitute for proof beyond reasonable doubt required in a criminal case. Reliance may be placed on case law titled as “Muhammad Jamshaid and another vs. The State and others” (2016 SCMR 1019) and “Muhammad Ashraf vs. The State” (2016 SCMR 1617). We have also noted that no independent witness qua motive was associated during the course of investigation or brought in the witness box at trial. Therefore, we hold that prosecution has failed to substantiate motive against the appellant.
6. So far as the alleged recovery of .30 bore pistol (P. 13) at the instance of the appellant which was taken into possession vide recovery memo. Ex.P1 is concerned, suffice it to observe that the same is a corroborative piece of evidence and relevant only if the primary evidence i.e. ocular account inspires confidence, which is not the situation in this case.
7. The medical evidence produced by the prosecution was not of much avail to the prosecution because the murder in issue had remained unwitnessed and thus the medical evidence could not point an accusing finger towards any of the culprits implicated in this case. Reliance is placed on case law titled as “Muhammad Saleem vs. Shabbir Ahmad and others” (2016 SCMR 1605).
8. So far as the defence plea taken by the appellant in his statement under Section 342, Code of Criminal Procedure is concerned, since the prosecution evidence is doubtful in nature, therefore, there is no need to discuss the same which is exculpatory in nature.
9. 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 appellant 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 appellant. 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. In this regard, reliance may be placed on the case law reported as “Muhammad Akram versus The State” (2009 SCMR 230).
10. For the foregoing reasons, Criminal Appeal No. 762 of 2016 filed by Muhammad Shahid (appellant) is allowed, convictions and sentences awarded to him vide judgment dated 08.08.2016 passed by the learned Addl. Sessions Judge, Lodhran are set aside and he is acquitted of the charges levelled against him while extending him benefit of doubt. The appellant is in jail. He shall be released forthwith if not required to be detained in any other case.
11. Murder Reference No. 125 of 2016 is answered in the NEGATIVE and the sentence of death awarded to Muhammad Shahid (convict) on two counts is NOT CONFIRMED.
(A.A.K.) Appeal allowed
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