PLJ 2021 Cr.C. 1449 (DB)
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conviction and sentence--Challenge to--Qatl-e-amd--Benefit of doubt--Delay in reporting crime--No direct evidence--No motive was alleged--Inordinate delay in setting machinery of law in motion speaks volumes against veracity of prosecution version--It has been held repeatedly by Hon’ble Supreme Court of Pakistan that such noticeable delay is normally occasioned due to incomplete police papers necessary to be handed over to Medical Officer to conduct post-mortem examination of dead body of deceased which happens only when complainant and police Remain busy in consultation and preliminary inquiry regarding culprits in such cases of unwitnessed occurrence--No motive was alleged against appellant--Moreover, nothing was recovered from him during course of investigation--Evidence of above two eye-witnesses is shaky in nature and cannot be relied upon for maintaining conviction/sentence of appellant-- [Pp. 1452, 1453] A, B & C
2019 SCMR 274, 2011 SCMR 1190, 2016 SCMR 1628 and
2009 SCMR 230.
Duty of prosecution--
----Principle--Prove case--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--Further held: 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. 1453] D
Mian Khadim Hussain and Mr. Anwaar-ul-Haq, Advocates along with Appellant (on bail)
Mr. M. Naveed Umar Bhatti, Deputy Prosecutor General for State.
Nemo for Complainant.
Date of hearing: 17.5.2021.
PLJ 2021 Cr.C. 1449 (DB)
[Lahore High Court, Lahore]
Present: Shehram Sarwar Ch. and Muhammad Tariq Nadim, JJ.
TARIQ MEHMOOD alias MAQSOOD AHMAD--Appellant
versus
STATE and another--Respondents
Crl. A. No. 1393 of 2010, decided on 17.5.2021.
Judgment
Shehram Sarwar Ch., J.--Tariq Mehmood alias Maqsood Ahmad (appellant) along with his co-accused namely Talawat Shah was tried by the learned Addl. Sessions Judge, Sarai Alamgir in case FIR No. 16 dated 13.01.2008, offence under Sections 302, 109, 148 and 149, PPC registered at Police Station Sadar Sarai Alamgir District Gujrat for murder of Abdul Wahid, Javed Iqbal and Abdul Qayyum (deceased). Vide judgment dated 26.05.2010 passed by the learned trial Court, the appellant has been convicted under Section 302(b), PPC read with Sections 109 and 114, PPC and sentenced to imprisonment for life. The appellant has also been convicted under Section 404, PPC and sentenced to undergo rigorous imprisonment for three years along with fine of Rs. 50,000/- (rupees fifty thousand only) and in default whereof to further undergo simple imprisonment for six months. Benefit of Section 382-B, Cr.P.C. was extended to the appellant. Through the same judgment, Talawat Shah co-accused of the appellant was acquitted of the charges and no appeal against his 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. Mst. Iqbal Begum, complainant also filed Crl. Revision No. 822 of 2010 for enhancement of sentence of the appellant from life imprisonment to death, which has been dismissed for non-prosecution today vide separate order.
2. Prosecution story, as set out in the FIR (Ex.PB/1) registered on the statement (Ex.PB) of Mst. Iqbal Begum, complainant (PW.11) is that on 13.01.2008 at around 3.30 p.m. she along with her sons Abdul Wahid and Javed Iqbal, paternal grandsons Nasir Iqbal and Abdul Qayyum left the village for Sarai Alamgir on a car, being driven by said Nasir Iqbal. When the car came out of the village, Tahir Mehmood armed with kalashnikov, Muhammad Riaz armed with .222 bore and an unknown co-accused armed with kalashnikov intercepted the car and Nasir Iqbal stopped the same. Tahir Mehmood broke the mirror of front seat door by inflicting butt blow of kalashnikov and raised lalkara to come out. Abdul Wahid, Javed Iqbal and Abdul Qayyum alighted from the car. Nasir Iqbal also stood alongside the car. Tahir Mehmood told Abdul Qayyum, Abdul Wahid and Javed Iqbal to stand in a queue behind the car. Meanwhile, the complainant also came out of the car and beseeched Tahir Mehmood but Tahir Mehmood and Muhammad Riaz made straight fires with their respective kalashnikovs on Abdul Qayyum and Abdul Wahid, which landed on different parts of their bodies, who fell down in injured condition. Javed Iqbal ran towards wall in order to save his life. Tahir Mehmood followed him and fired a burst which hit on head, chest, back and other parts of body of Javed Iqbal, who also fell down. Abdul Wahid, Abdul Qayyum and Javed Iqbal succumbed to the injuries on the spot. Besides the complainant, the occurrence was witnessed by Nasir Iqbal, Tariq Mehmood alias Maqsood (appellant) and Abdul Qadeer. Motive behind the occurrence as alleged in the FIR was that Raja Abdul Qayyum (deceased) had divorced Mst. Zahida Parveen sister of Tahir Mehmood and about 8/10 days back, contracted marriage with Mst. Shabana Kausar daughter of complainant and due to that revenge, Tahir Mehmood in consultation with his two co-accused committed the murder of two sons and son-in-law of complainant.
3. It is pertinent to mention here that initially the appellant was an eye-witness of the incident but subsequently, on the supplementary statement of complainant dated 12.04.2008, he (appellant) was arrayed as an accused of abetment for the commission of present occurrence.
4. During investigation, Tahir Mehmood alias Kala, Javed Iqbal alias Javed Kinya and Muhammad Riaz, co-accused of the appellant became fugitive from law and they were declared proclaimed offenders. After completion of investigation, report under Section 173, Code of Criminal Procedure was submitted in this case. The appellant and Talawat Shah, co-accused were summoned by the learned trial Court to face the trial. Copies of relevant documents were provided to them, as required under Section 265-C, Code of Criminal Procedure and formal charge was framed against him on 14.10.2009, to which they pleaded not guilty and claimed trial. Statements of the appellant and his co-accused under Section 342 of the Code of Criminal Procedure were recorded on 03.05.2010, wherein they refuted all the prosecution allegations levelled against them and professed their innocence. The appellant did not opt to appear as his own witness, in disproof of the allegations levelled against him, as provided under Section 340(2), Code of Criminal Procedure, however, he produced certain documents (Ex.DC & Ex.DD) as defence evidence. The appellant also produced Sarfraz Ahmad, S.I. and his statement was recorded as DW.1. After conclusion of trial, the learned trial Court convicted and sentenced the appellant and acquitted his co-accused, as detailed above. Hence this appeal.
5. We have heard 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.
6. The occurrence in this case allegedly took place on 13.01.2008 at 3:30 p.m. whereas the matter was reported to the police on the same day at 5:30 p.m. The distance between police station and the place of occurrence is ten miles. There is a delay of about two hours in reporting the crime to the police without any plausible explanation. It is also worth mentioning here that while appearing before the learned trial Court Nasir Iqbal (PW.9) and Iqbal Begum (PW.11) did not utter even a single word about the above said delay. Therefore, we hold that this inordinate delay in setting the machinery of law in motion speaks volumes against the veracity of prosecution version. Reliance place is on case law titled as “Altaf Hussain vs. The State” (2019 SCMR 274). Undisputedly, the post-mortem examination of the dead-bodies of all the deceased namely Abdul Wahid, Javed Iqbal and Abdul Qayyum was conducted about twelve hours after the occurrence. It has been held repeatedly by the Hon’ble Supreme Court of Pakistan that such noticeable delay is normally occasioned due to incomplete police papers necessary to be handed over to the Medical Officer to conduct the post-mortem examination of dead body of the deceased which happens only when the complainant and police remain busy in consultation and preliminary inquiry regarding the culprits in such cases of unwitnessed occurrence. Reliance is placed on case law titled as “Irshad Ahmed vs. The State” (2011 SCMR 1190) and “Nazeer Ahmed vs. The State” (2016 SCMR 1628).
7. Undisputedly, there was no direct evidence against the appellant qua the murder of Abdul Wahid, Javed Iqbal and Abdul Qayyum. There was no allegation against the appellant that he caused injury on the person of any deceased. Initially, Tariq Mehmood alias Maqsood Ahmad (appellant) was introduced in this case as an eye-witness of the occurrence but subsequently he was transposed as an accused of abetment about three months after the occurrence without there being any satisfactory explanation. There is nothing on record as to why the complainant remained silent for such a long period and did not implicate the appellant as an accused of abetment in this case. No solid/convincing evidence qua the charge of abetment against the appellant was produced by the prosecution during the trial. The main perpetrators of the occurrence were Tahir Mehmood alias Kala and Muhammad Riaz out of whom Tahir Mehmood alias Kala has been acquitted by this Court, today through a separate judgment. No motive was alleged against the appellant. Moreover, nothing was recovered from him during the course of investigation. Therefore, we hold that the evidence of above two eye-witnesses is shaky in nature and cannot be relied upon for maintaining the conviction/sentence of the appellant.
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 “Muhammad Akram versus The State” (2009 SCMR 230), the Hon’ble Supreme Court of Pakistan, at page 236, was pleased to observe as under:
“13. ... 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.”
10. For the foregoing reasons, Criminal Appeal No. 1393 of 2010 filed by the appellant is allowed, convictions and sentences awarded to him vide judgment dated 26.05.2010 passed by the learned trial Court are set aside and the appellant is acquitted of the charges levelled against him while extending him benefit of doubt. Tariq Mehmood alias Maqsood Ahmad (appellant) is present in the Court on bail. His surety is discharged from the liability of bail bonds.
11. Before parting with this judgment, it is clarified that the observations recorded in this judgment are relevant only for the
disposal of this appeal which shall not influence the learned trial Court in any manner whatsoever in case of arrest and trial of co-accused of the appellant who were proclaimed offenders at the time of pronouncement of the impugned judgment.
(A.A.K.) Appeal allowed
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