PLJ 2021 Cr.C. (Note) 40
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302 & 34--Conviction and sentence--Challenge to--Acquittal of co-accused--Inordinate delay in lodging of FIR--Non-producing of search light during investigation--Un-natural conduct of complainant--Un-explained delay in post-mortem examination--Motive behind occurrence--Non-producing of evidence by prosecution regarding illicit relations--No convincing evidence regarding exclusive possession of hatchet by appellant used as crime weapon--Contradictory statements of eye-witnesses--Onus to prove--Establishment of number of doubts by defence--Case of no evidence and occurrence--Complainant appearing as PW-1 stated that about fourteen months ago at about 9/10.00 p.m all accused armed with hatchets came in field of and held deceased, inflicted hatchet injuries on his body as detailed in private complaint--He along with witnessed occurrence from a distance of about 5/6 Killas--They claimed to have witnessed occurrence with search light, which was neither produced by complainant during course of investigation nor Investigating Officer took into possession--Thus, prosecution failed to establish that eye-witnesses have seen occurrence in sufficient light--It is mentioned in FIR that complainant along with PW, stayed/remained with dead body, informed his parents living in Chak No. 51-D and upon their arrival, then approached Illaqa police to report incident--This conduct of complainant is un-natural and suggests that had he seen occurrence he would have lodged FIR and could not keep mum till arrival of his parents--Post-mortem examination in this case was conducted after 20-21 hours--Such delay was not explained by prosecution--As mentioned in preceding paras that occurrence in this case took place on 09.09.2008 at 10.00 p.m. and matter was reported to police at 8.30 a.m on following day, autopsy was held at 6.20 p.m. with further delay of ten hours, why did it happen, was a circumstance, which prosecution failed to explain satisfactorily--Motive behind this occurrence was that appellant had suspicion that deceased developed illicit relations with his wife, but, no evidence whatsoever, was produced by prosecution during trial or during course of investigation--Trial Court also disbelieved motive part of prosecution story--There was also no convincing evidence on file regarding hatchet P-1, that it was actually owned and exclusively possessed by appellant and used as crime weapon, therefore, evidence regarding recovery of hatchet lend no support to prosecution--Eye-witnesses contradicted each other on material aspects of case, in particular, distance wherefrom occurrence was seen by them and source of light, neither produced nor taken into possession during investigation, therefore, they are not confidence inspiring and trustworthy and thus, .cannot be believed--Held: It is settled law that onus to prove in criminal cases never shifts and it was for prosecution to prove its case beyond any shadow of doubt--In present case, prosecution failed to prove its case beyond any shadow of doubt and accumulative effect that there was inordinate and un-explained delay in lodging FIR which seems to have been recorded after preliminary investigation and due deliberation--In instant case, defence has established number of doubts, which have damaged entire prosecution’s case--From evidence available on record, it appears that prosecution has suppressed material-facts and occurrence was shrouded in mystery, as under what circumstances and in that manner deceased was done to death--Thus, it can be concluded that either it was a case of no evidence or occurrence did not take place in manner as suggested by prosecution, which has failed to prove its case against appellant beyond any shadow of doubt--Appeal was accepted.
[Para 15, 16, 17, 18, 19, 20 & 21] A, B, C, D, E, F & G
2009 SCMR 536, 2008 SCMR 1221 and 2008 SCMR 345 ref.
M/s. Rustam Khan Padhiar and Nighat Saeed Mughal, Advocates for Appellant.
Malik Muhammad Jaffar, Deputy Prosecutor General Punjab, for State.
Mr. M.D. Chaudhary, Advocate for Complainant.
Date of hearing: 11.9.2015.
PLJ 2021 Cr.C. (Note) 40
[Lahore High Court, Lahore]
Present: Muhammad Tariq Abbasi and Sardar Ahmed Naeem, JJ.
MUHAMMAD ABID @ AABI--Appellant
versus
STATE--Respondent
Crl. A. No. 390 & M.R. No. 123 of 2011, decided on 11.09.2015.
Judgment
Sardar Ahmed Naeem, J.--The appellant namely, Muhammad Abid alias Aabi, along with Manzoor Ahmed and Sajid, accused of private complaint and case FIR No. 687 dated 10.09.2008, under Section 302/34 of the Pakistan Penal Code, 1860, registered at Police Station Hujra Shah Moqeem, District Okara, at the instance of Muhammad Ramzan, complainant, faced trial for committing qatl-e-amd of Saleem Abbas. Learned Additional Sessions Judge, Depalpur District Okara, at the conclusion of the trial vide judgment dated 24.02.2011, acquitted Manzoor Ahmad and Sajid accused of the charge giving them benefit of doubt, whereas the appellant was convicted and sentenced as under:
“under Section 302(b), PPC as Taazir to death with a direction to pay Rs. 1,00,000/- to the legal heirs of deceased as compensation under Section 544-A, Cr.P.C. and in default in payment thereof, the same shall be recovered as arrears of land revenue.”
2. The appellant has filed Crl. Appeal No. 390 of 2011 against his conviction and sentence. The State has also sent Murder Reference No. 123 of 2011, under Section 374, Cr.P.C. for confirmation of death sentence of the appellant. This judgment will dispose of the above said appeal and the Murder Reference.
3. CW-4 Muhammad Aslam, SI, took over investigation of this case on 10.09.2008. He went to the place of occurrence, recorded the statements of PWs under Section 161, Cr.P.C. inspected the dead body of Saleem Abbas, prepared injury statement Exh.CW-4/A, inquest report Exh.CW-4/B, drafted application for post-mortem examination (Exh.CW-4/C and sent the dead-body to mortuary for autopsy through Anwar-ul-Haq C/1596. He collected blood-stained earth from the place of occurrence, took into possession vide recovery memo. Exh.PC. After post-mortem examination Anwar-ul-Haq C/1596 produced before him last-worn clothes of the deceased i.e. Qameez (P.1) and Shalwar P.2, taken into possession vide memo. Exh.CW-1/A attested by the witnesses. On 21.09.2008, he arrested the appellant. On 28.9.2008, the appellant led to the recovery of hatchet (P.1) from a room of his residential house, secured vide recovery memo. (Exh.PD). During investigation, he found Manzoor Ahmed and Sajid Ali innocent whereas Abid Ali alias Aabi (appellant) was challaned.
4. Dr. Munir Ahmed (PW-3), conducted post-mortem examination of Saleem. Abbas, on 10.9.2008 at 6.20 p.m. and found seven injuries on his person. In his opinion, all the injuries were caused by heavy weight sharp-edged weapon ante-mortally and death had occurred due to severe head and brain injury sufficient to cause death in ordinary course of nature. Probable time elapsed between injury and death was almost immediate and between death and post-mortem was 20 to 21 hours approximately. Exh.PE was correct carbon copy of his post-mortem report, Exh.PE/.1 was diagram of the injuries which were in his hand and bore his signatures.
5. Initially, Muhammad Ramzan, complainant, reported the occurrence to the police through application/complaint (Exh.PA), on the basis whereof FIR Exh.PA/ 1 was recorded on 10.09.2008 at 8:30 A.M. at Police Station Hujra Shah Muqeem, Okara. During investigation, local police placed co-accused Manzoor Ahmed and Sajid Ali as innocent in column No. 2 of the report under Section 173, Cr.P.C. and challaned the present appellant.
6. Feeling dissatisfied with the investigation, the complainant lodged private complaint (Exh.PB). On the basis of cursory statement and inquiry report under Section 202, Cr.P.C., learned trial Court summoned all the three accused to face trial under Section 302/34, PPC in the private complaint (Exh.PB) vide order dated 10.07.2009.
7. The appellant as well as the acquitted accused were charge sheeted under Section 302/34, PPC in private complaint vide order dated 11.09.2009, all of them denied the charge and claimed trial.
8. To prove its case, prosecution produced three witnesses in all, whereas six witnesses were examined as Court-Witnesses. PW-1 is Muhammad Ramzan complainant of case as well as eye-witness of the occurrence. Muhammad Ashiq, PW-2 is also eye-witness of the occurrence. CW-2 Zafar Iqbal, Patwari Halqa, prepared the site-plan of the place of occurrence in duplicate Exh.CW.2/A and Exh.CW.2/B on 04.10.2008 on the direction of the police and pointation of the witnesses. CW-4 Muhammad Aslam S.I., was Investigating Officer of the case. CW.5 Abdul Razzaq C/542 deposited a sealed parcel containing blood-stained earth in the office of Chemical Examiner, Lahore intact on 27.09.2008. He also deposited another sealed parcel containing hatchet in the said office on 23.10.2008. CW-6 Shaukat Ali ASI, drafted the formal FIR Exh.PA/1 on the basis of complaint Exh.PA. Rest of the witnesses were formal in nature.
9. Learned DDPP tendered in evidence the report of chemical examiner Exh.PF, report of serologist Exh.PG and closed the prosecution evidence. The complainant also tendered in evidence copies of FIR No. 89/82 under Section 302/34, PPC as Exh.PH, and copy of FIR No. 265/95 under Sections 302,148,149, PPC as Exh.PJ and closed his additional evidence.
10. At the close of prosecution evidence, the appellant got recorded his statement under Section 342, Cr.P.C., wherein he denied the allegations. In answer to question No. 8 Why this case against you and why the PWs have deposed against you”, appellant replied as under:
“It is a false case. All the PWs are closely related inter-se and also with the deceased. They made false statements against me and my co-accused due to suspicion and enmity. In fact, it was a blind murder and un-witnessed occurrence. The deceased was all alone when he was killed by some unknown culprits at the dark hours of night. The prosecution has fabricated a false and twisted version of the occurrence in order to involve me and my co-accused in this case. The complainant party came to know about the a occurrence in the following morning of the night of occurrence when they found the deceased lying dead in the fields of Safdar Gajiana. PWs were not present at the time of occurrence, at the place of occurrence. The complainant of this case in collusion with the police has roped me and my co-accused in this case.”
The appellant neither made his statement under Section 340(2), Cr.P.C. on oath nor opted to produce any defence evidence.
11. Learned counsel for the appellant contended that it was, in fact, a blind murder reported with un-explained delay of 10/11 hours; that the occurrence took place at 10.00 p.m. and that the witnesses allegedly had seen the occurrence with search light from the distance of about 7/8 Killas, but that search light was neither taken into possession by the Investigating Officer nor produced by the complainant during the investigation; that post-mortem, in this case was conducted, with inordinate delay of about 20 hours, which speaks volume against the prosecution story; that the prosecution witnesses were closely related to the deceased and inimical towards the accused party; that the motive was not proved and disbelieved by the trial Court; that all the prosecution witnesses were highly interested witnesses and have contradicted each other on material points.. He argued that being dissatisfied with the declaration of innocence of the co-accused of the appellant, the complainant filed a private complaint and even then, failed to prove the case against the appellant beyond shadow of reasonable doubt. Learned counsel further submitted that the complainant failed to offer plausible explanation for inordinate delay of 11 hours in lodging the FIR as well as the post-mortem of the deceased after twenty hours, either the PWs have not seen the occurrence or that they joined the proceedings after the occurrence. He concluded his arguments with the submissions that the appellant was entitled to be acquitted by extending benefit of doubt as a single doubt in the case would be sufficient for the purpose of acquittal.
12. On the contrary, learned DPG assisted by the learned counsel for the complainant argued that the occurrence has taken place in the open fields and the matter was reported by the complainant regarding brutal murder of his brother by hatchet blows inflicted by the appellant and his co-accused. It was submitted that the ocular account was furnished by the natural witness, which was trustworthy and confidence inspiring and that the appellant along with his co-accused was responsible for committing qatl of the deceased. It was contended that the medical evidence as well as recovery of crime weapon from the appellant fully supported the prosecution version and there was no reason for false implication of the appellant. It was submitted that the appellant had motive to enact the episode, as a result of premeditation, pre-concert, with his co-accused done the deceased to death and that the sentence awarded, by the trial Court would meet the ends of justice as the prosecution has proved its case against the appellant beyond any shadow of doubt.
13. We have considered the rival arguments from both sides and have also examined the impugned judgment in the light of evidence produced by the prosecution.
14. During the course of investigation, the Investigating Officer, found that co-accused including Sajid Ali and Manzoor Ahmed were not involved in this occurrence. As mentioned above being dissatisfied with findings of the Investigating Officer, the complainant filed a private complaint on 18.02.2009 and in para-4 of the private complaint attributed specific role to all the accused of causing injuries to the deceased.
15. It is an admitted position that the complainant was the real brother of the deceased and visited the house of his “mamun” Muhammad Ashiq (PW-2) with whom the deceased was putting up in those days. The occurrence took place at 10.00 p.m on 9.9.2008 when there was a complete dark in the area and the occurrence was allegedly witnessed by the complainant and Muhammad Ashiq PW:2, therefore, they are his close relatives and their testimony is to be looked and adjudged, minutely with care and caution. The complainant had come to the house of his “mamun” to meet his brother, the deceased. The complainant appearing as PW-1 stated that about fourteen months ago at about 9/10.00 p.m all the accused armed with hatchets came in the field of Safdar Gajana and held the deceased, inflicted hatchet injuries on his body as detailed in the private complaint. He along with Muhammad Ashiq witnessed the occurrence from a distance of about 5/6 Killas. They claimed to have witnessed the occurrence with search light, which was neither produced by the complainant during the course of investigation nor the Investigating Officer took into possession. Thus, the prosecution failed to establish that the eye-witnesses have seen the occurrence in sufficient light.
16. In this case, FIR (Exh.PA) was registered with inordinate delay of ten hours. It is mentioned in the FIR that the complainant along with Muhammad Ashiq PW, Sana Ullah and Allah Ditta stayed/remained with the dead body, informed his parents living in Chak No. 51-D and upon their arrival, then approached the Illaqa police to report the incident. This conduct of the complainant is un-natural and suggests that had he seen the occurrence he would have lodged the FIR and could not keep mum till the arrival of his parents. The owner of the place of occurrence, namely, Safdar Gajana was examined as DW-1. He categorically stated that in the year 2008, on 8th/9th “Ramdan” at 7.00/7.30 a.m visited his agricultural land situated at Jhujh Kalan. A dead body was lying in his paddy crops facing towards the earth. He summoned the people from the nearby chah and about 15/20 persons gathered there but no body could, identify the dead body lying in his field. He informed the police of Police Station Hujra Shah Moqeem. The police party came there at about 8/8:30 a.m and then after arrival of the police party, Ashiq Jitala PW-came there who was residing in Chishti Shaam Din at a distance of one kilo meter from his fields and identified the dead body of his “Bhanja”. He gone on to state that it was unseen occurrence. This witness was cross-examined at length by the learned counsel for the complainant but he failed to cross-examine the witness on the material aspects of the case. He has admitted that both the parties were related to him and Ashiq Jitala PW was his lessee a decade ago. He denied, the story narrated in. ExhPB. The complainant failed to extract some favourable material from this witness.
17. The post-mortem examination in this case was conducted after 20-21 hours. Such delay was not explained by the prosecution. As mentioned in the preceding paras that the occurrence in this case took place on 09.09.2008 at 10.00 p.m. and the matter was reported to the police at 8.30 a.m on the following day, autopsy was held at 6.20 p.m. with further delay of ten hours, why did it happen, was a circumstance, which the prosecution failed to explain satisfactorily.
18. The motive behind this occurrence was that the appellant had suspicion that the deceased developed illicit relations with his wife, but, no evidence whatsoever, was produced by the prosecution during the trial or during the course of investigation. The learned trial Court also disbelieved the motive part of the prosecution story. There was also no convincing evidence on the file regarding hatchet P-1, that it was actually owned and exclusively possessed by the appellant and used as crime weapon, therefore, evidence regarding recovery of hatchet lend no support to prosecution. The eye-witnesses contradicted each other on the material aspects of the case, in particular, the distance wherefrom the occurrence was seen by them and source of light, neither produced nor taken into possession during the investigation, therefore, they are not confidence inspiring and trustworthy and thus, .cannot be believed.
19. In case of “Muhammad Arif Baloch and another v. The State and another” reported as 2009 SCMR 536, Hon’ble Supreme Court of Pakistan held as under:
“Appraisal of evidence--Prosecution witnesses were interested witnesses and their statements suffered from material improvements, which could not be relied upon”
It is settled law that onus to prove in criminal cases never shifts and it was for the prosecution to prove its case beyond any shadow of doubt. In the present case, the prosecution failed to prove its case beyond any shadow of doubt and accumulative effect of above discussion would lead us to a conclusion that there was inordinate and un-explained delay in lodging the FIR which seems to have been recorded after preliminary investigation and due deliberation.
20. In the instant case, the defence has established number of doubts, which have damaged the entire prosecution’s case. In case titled “Ghulam Qadir v. State” (2008 SCMR 1221) Hon’ble Supreme Court of Pakistan, observed as under:
“For the purpose, of benefit of doubt to an accused, more than one infirmity is not required…….Single infirmity creating reasonable doubt in the mind of a reasonable and prudent person regarding the truth of charge, makes the whole case doubtful”. (The said dictum is based upon the case of Muhammad Luqman v. State PLD 1970 SC 10).”
The apex Court further held in the case titled “Muhammad Hussain v. The State” (2008 SCMR 345), which reads, as under:
“In order to sustain conviction on capital charge, evidence must come from independent and unimpeachable, source rather than from tainted and inimical witnesses without any independent corroboration--Supreme Court converted petition for leave to appeal into appeal and set aside conviction and sentence awarded to accused-Appeal was allowed.”
21. From the evidence available on the record, it appears that the prosecution has suppressed the material facts and occurrence was shrouded in mystery, as under what circumstances and in that manner the deceased was done to death. Thus, it can be concluded that either it was a case of no evidence or the occurrence did not take place in the manner as suggested by the prosecution, which has failed to prove its case against the appellant beyond any shadow of doubt.
22. For the reasons mentioned above, this appeal is accepted. The conviction and sentence of the appellant is set aside. He is acquitted of the charge by extending the benefit of doubt, as a consequence whereof he shall be set free forthwith, if not required in any other criminal case.
23. Murder Reference is answered in the negative and death sentence is not confirmed.
(A.A.K.) Appeal accepted
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