PLJ 2021 Cr.C. 1404 (DB)
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conviction and sentence--Challenge to--Qatl-e-amd--Benefit of loophole--Ocular account--Occurrence took place and he was arrested in this case after lapse of more than three years--Abscondance has been denied and it was claimed that he did not abscond--Held: It is settled by now that abscondance alone cannot be a substitute for real evidence and mere abscondance of accused in absence of any other evidence against absconding accused--Complainant also admitted during cross-examination that she along-with other PWs made statements regarding occurrence before police after consulting with each other--No plausible explanation was brought on record for delayed post-mortem report and said noticeable delay suggested deliberation and consultation--Motive mentioned in crime report was that deceased was done to death due to revenge of divorce whereas, Mst. “S” during trial stated that Saima Bibi filed a suit for dissolution of marriage, thus, accused-appellant nourished grudge against them and they committed murder of deceased--Admittedly, motive is not a component of murder and prosecution is not bound to introduce any motive but once a motive is set up and not proved then it adversely effect case of prosecution--Motive set up in FIR for incident was either not proved or remained too vague and generalized--Court have no hesitation to hold that eye-witnesses produced by prosecution before trial Court were actually not present with deceased at time of occurrence and, thus, ocular account furnished by them was ruled out of consultation--After ruling out ocular account, other circumstances of case providing support to ocular account had automatically collapsed--After scrutinizing prosecution evidence availably on record, that prosecution has failed to prove case against appellant beyond reasonable doubt--Further held: It is settled principle of law that once a single loophole is observed in a case presented by prosecution much less glaring conflict in ocular account, benefit of such loophole lacuna in prosecution case goes in favour of accused. [Pp. 1410 & 1411] A, B, C, D & E
PLD 1980 SC 201, PLD 2009 SC 53, 2011 SCMR 1190 &
2021 SCMR 736.
Prince Rehan Iftikhar Sheikh, Advocate for Appellant.
M/s. Daud Ahmad Wains, Ch. Muhammad Saeed, Mian Yasir Hameed Butt and Qurat-ul-Ain Ijaz Advocates for Complainant.
Malik Mudassar Ali, Deputy Prosecutor General for State.
Date of hearing: 9.6.2021.
PLJ 2021 Cr.C. 1404 (DB)[Lahore High Court, Multan Bench]Present: Sardar Ahmed Naeem and Shakil Ahmed, JJ.MUNIR--AppellantversusSTATE etc.--RespondentsCrl. A. No. 329 of 2018 & M.R No. 102 of 2016, heard on 9.6.2021.
Judgment
Sardar Ahmed Naeem, J.--Munir s/o Ameer appellant was tried by the learned Addl Sessions Judge, Sahiwal, in case FIR No. 109/2012 dated 19.4.2012, under Sections 302/34, P.P.C., registered at Police Station Kameer, Sahiwal. The learned trial Court vide judgment dated 22.06.2016 held the appellant Munir guilty under Section 302(b), P.P.C. convicted and sentenced him to death, with the direction to pay
Rs. 2,00,000/- as compensation to the legal heirs of the deceased, under Section 544-A, Cr.P.C. and in case of default to further undergo simple imprisonment for six months.
2. Feeling aggrieved of the above said judgment, Munir appellant filed Criminal Appeal No. 329/2018 titled as Munir versus The State etc. challenging conviction and sentences awarded to him by the learned trial Court. Murder Reference No. 102/2016 titled as The State versus Munir is also before us for confirmation or otherwise of the death sentence awarded to the appellant. Through this single judgment, we propose to decide both these matters.
3. Brief facts of the case, as disclosed in the FIR by Mst. Shakila Bibi complainant are that, on 19.4.2012 at 1.00 a.m. (night), Munir appellant alongwith Farid and Ameer co-accused (since P.Os.) armed with deadly weapons entered into house of the complainant and threatened inmates of the house, who were sleeping on the roof. On the warning of accused persons, Muhammad Mansha and Muhammad Bashir PWs also woke up. Munir appellant made fire shot with his Pistol hitting the head of Muhammad Jaffar deceased, husband of the complainant, who after receiving fire shot succumbed to the injury at the spot. The accused persons fled away from the place of occurrence.
4. After usual investigation, challan against the accused was submitted before the Court. The learned trial Court after observing all the pre-trial codal formalities, charge sheeted the appellant to which he pleaded not guilty and claimed to be tried.
5. The prosecution, in order to prove its case, produced as many as 13 PWs during the trial. The ocular account, in this case, was furnished by Mst. Shakeela Bibi complainant (PW.3) and Muhammad Mansha (PW. 7).
6. The medical evidence was furnished by Dr. Shakeel David, CMO (PW.
who, on 19.4.2012 at about 1.00 p.m. conducted post-mortem examination of Muhammad Jaffar deceased and observed following injury on his person:1) A lacerated wound with inverted and blackened margins 2 cm x 2½ cm x deep going into head on the top right side of head, 7 cm away from the right ear (entry wound).
The Medical Officer opined as under:
“In my opinion, the cause of death in this case was injury No. l which caused severe damage to the brain and upper spinal cord with perfused bleeding, hemorrhage, shock and death. This injury was sufficient to cause death in ordinary course of nature. This injury was anti mortem and caused by fire-arm. After post-mortem examination, he handed over the stitched dead body, police papers, most mortem report, last worn clothes of the deceased and a scaled phial said to contain metallic piece of bullet. Ex.FN is the correct attested copy of post-mortem report of Muhammad Jaffar deceased which is in his hand and bars his signatures. Ex.PN/1 is the pictorial diagram to locale of injury which is also signed by him, he also endorsed the injury statement Ex.PO and he also endorsed the inquest report which is Ex.PQ.”
7. Muhammad Yar ASI (P. W. 1) on receipt of complaint for registration of case on 19.4.2012, chalked out formal FIR on the basis of complaint Ex.PA without any addition or omission. Muhammad Amin Constable (P.W.2) escorted the dead body of the deceased for post-mortem examination. Amanat Ali (P. W.5) identified the dead body of Muhammad Jaffar deceased. Zahid Ali Draftsman (P.W.6) visited the place of occwrence on 22.4.2012 and took rough notes on the pointation of the complainant as well as PWs and on the direction of the police prepared scaled site plans Ex.PJ and Ex.PJ/1. Jaffar Ali retired S.I (P.W.10) conducted partial investigation of the case. Muhammad Ashraf S.I. (P.W.11) also conducted investigation of the case. Whereas, Ghulam Rasool S.I. (P.W.I2) investigated the case at initial stage. Rest of the PWs are formal, therefore, need not to be discussed.
8. The prosecution gave up Muhammad Bashir PW being dead, Muhammad Ashraf Kfiadim Hussain and Muhammad Amin S.I. PWs being unnecessary and the learned Assistant District Public Prosecutor after tendering into evidence reports of Chemical Examiner regarding blood-stained earth Ex.PW, serologist regarding the blood-stained earth Ex.PX and Punjab Forensic Science Agency, Lahore regarding pistol 30-bore Ex.PY, closed the prosecution evidence.
9. The statement of the appellant under Section 342, of The Code of Criminal Procedure, 1898, was recorded. He refuted the allegations levelled against him and professed innocence. Responding to “Why this case was registered against you and why the PWs deposed against you? Munir Ahmad appellant replied as under:
“All the PWs as well as complainant are related inter-se due to close relationship they have deposed falsely against me and my co-accused (since P.Os). The complainant of this case after committing the murder of the deceased by some unknown persons after consulting and deliberating with the PWs and other relatives made a false story and registered a false complaint cancealing and hiding the real facts with regard to the occurrence registered the instant case. The real facts are that the deceased was a spoon of love and womanizer and had many paramours in his life time. All the family members except the deceased were sleeping into the room on the fateful night. The deceased was all alone at the roof of the room who was done to death by some unknown culprits by unknown mode and manner. I divorced Mst. Saima Bibi the daughter of the deceased as well as complainant in those days. Mst. Saima Bibi was residing with her parents and she was also on the fateful night sleeping into the room in her parents, house. On the day breaking the deceased was attended and he was found in dead condition on the roof of the room and the dead body of the deceased was alighted from the roof into the Courtyard and informed the local police. Then the local police came at the place of occurrence, when the real culprits of the instant occurrence could not be found, then the complainant and the PWs twisted a false story and involved me and my co-accused persons (since P.Os) due to the grudge with regard to divorce to Mst. Saima Bibi. The murder of the deceased was not committed by me and my co-accused (since P.Os). I and my co-accused persons (since P.Os) are innocent in this case.”
10. The appellant did not appear as his own witness on oath as provided under Section 340(2) of The Code of Criminal Procedure, 1898 in disproof of the allegations levelled against him.
11. The learned trial Court vide its judgment dated 22.06.2016, held the appellant guilty, convicted and sentenced him as mentioned and detailed above.
12. Learned counsel for the appellant advanced the following arguments:
i. The occurrence took place in the house of the deceased/complainant situated in Street No. 3, Katchi Abadi, Kameer Town, shared by the other family members and then also sleeping on the roof top but no other family member was cited during trial;
ii. The best evidence has been withheld by the prosecution, thus, necessary inference under Article 129(g) of Qanun-e-Shahdat, 1984 must be raised against the prosecution;
iii. That the prosecution failed to establish the source of light at the time and place of occurrence as neither any bulb was secured by the investigating officer nor produced by the complainant during the investigation;
iv. The post-mortem examination was conducted with unexplained delay of about thirteen hours which suggests deliberation and consultation;
v. The prosecution miserably failed to prove the motive against the appellant;
vi. The recovery of pistol (P-4)also lends no corroboration to the prosecution as the crime weapon was found not in working order;
vii. No cot, pillow or any bedspread of the deceased was taken into possession;
viii. The story of the prosecution was not only unnatural but also does not fit in with the probabilities;
ix. That the statements of the eye-witnesses were full of discrepancies and contradictions;
x. The case of the prosecution was swollen with doubts and every doubt even slightest is always resolved in favour of the accused, thus, the appellant was entitled to acquittal;
13. Learned Deputy Prosecutor General assisted by the learned counsel for the complainant opposed this appeal with vehemence. It was argued that the prosecution failed to shatter the credibility of the eye-witnesses; that the appellant was specifically nominated in a promptly lodged FIR being the principal offender; that the version of the complainant gets full support from the medical evidence; that the motive was also sufficiently proved and the recovery of pistol (P-4) lends further corroboration to the prosecution story; that the discrepancies hinted at by the learned counsel for the appellant were minor and negligible; that the eye-witnesses have rendered the ocular account in a straightforward manner and that the PWs firmly withstood the test of cross-examination but no favourable material was extracted; that the prosecution successfully proved its case against the appellant and that the appeal deserves dismissal.
14. We have given patient hearing to the arguments advanced by the learned counsel for the parties and have perused the available record with their available assistance.
15. The occurrence in this case took place on 19.4.2012 at 1:00 a.m. (night). The place of occurrence was roof top of the house of the deceased/complainant, where, they were sleeping along-with their guest, namely, Muhammad Bashir and other family members. While, real brother of the deceased, namely, Muhammad Mansha (PW.7) was also sleeping with his own family members on the roof of his house adjacent to the place of occurrence. The crime report suggested that the complainant got up on the arrival of the appellant along-with his co-accused including Farid and Ameer (POs). They all were armed with weapons. A bulb was fixed on common wall intervening the house of the complainant and Muhammad Mansha (PW.7) and it was on. The complainant was threatened by all the accused to keep quiet. Meanwhile, Muhammad Mansha and Muhammad Bashir also got up and in their presence, the appellant then standing near the cot fired at the deceased hitting on his head. The alarm raised by the Complainant and the PWs also attracted Ghulam Hussain. After enacting the episode the accused fled away from the crime scene. The deceased succumbed to the injuries. In the FIR (ExhP-A/1), it was mentioned that the complainant along-with her family members were sleeping on the roof top along-with a guest, namely, Muhammad Bashir but neither any family member was interrogated nor said Muhammad Bashir was examined during the investigation and there appeared no reason for the accused to leave the PWs alive to depose against them. The neighbourer of the complainant, namely, Khadim Hussain was also not examined under Section 161, Cr.P.C. and Investigating Officer admitted during the cross-examination that statement of Khadim Hussain was not recorded by him. He had come to the place of occurrence consequent to alarm raised by the eye-witnesses. He was independent witness but his evidence was withheld by the prosecution, thus, necessary inference under Article 129(g) of Qanun-e-Shahadat, 1984 can be raised that had he been produced during trial, he would not have supported the prosecution case. The prosecution also produced PW:2 to prove the absconsion of the appellant. The occurrence took place on 19.4.2012 and he was arrested in this case on 11.5.2015 after the lapse of more than three years. The abscondance has been denied and it was claimed that he did not abscond. It is settled by now that abscondance alone cannot be a substitute for real evidence and mere abscondance of accused in absence of any other evidence against absconding accused, cannot be considered enough to sustain conviction of accused as held in “Farman Ali and 3 others versus The State” (PLD 1980 SC 201). The law laid down in “Muhammad Tasaweer versus Hafiz Zulkarnain and 2 others” PLD 2009 SC 53) can also be referred to.
16. The occurrence took place at mid night (1:00 a.m) but the post-mortem was conducted by Dr. Shakil David (PW.
on the same day at 1:00 p.m who observed a lacerated wound with inverted and blackened margins 2 cm x 2½ cm x deep going into head on the top right side of head, 7 cm away from the right ear. It was wound of entry. The probable duration between the injury and death was within fifteen minutes and between death and post-mortem was about thirteen hours. He has admitted during the cross-examination that according to the inquest report Exh.PQ, there was no mention in column No. 7 regarding blood-stained clothes of the deceased. The complainant also admitted during the cross-examination that she along-with other PWs made statements regarding the occurrence before the police after consulting with each other. No plausible explanation was brought on the record for the delayed post-mortem report and the said noticeable delay suggested deliberation and consultation. A similar question came up before their lordships in case titled “Irshad Ahmed versus The State” (2011 SCMR 1190) and the relevant observations of their lordships are as follows:
“3. ...We have further observed that the post-mortem examination of the deadbody of Shehzad Ahmed deceased had been conducted with a noticeable delay and such delay is generally suggestive of a real possibility that time had been consumed by the police in procuring and planting eye-witnesses and in cooking up a story for the prosecution before preparing police papers necessary for getting a post-mortem examination of the deadbody conducted ...”
17. The motive behind the occurrence was that the appellant got married to Saima Bibi a daughter of the complainant/deceased two years prior to the occurrence. In the wedlock, there was a baby girly then living with the appellant. The marriage was dissolved through Court. The record further divulged that Saima Bibi was not willing for her divorce. She was also not examined or interrogated by the investigating agency at any stage. The record further divulged that the parties were not on speaking terms and after the divorce, no altercation ever took place between them, thus, there was no apparent reason for the appellant to launch murderous assault upon the deceased, in particular, when their marital ties had come to an end, and in particular, when his daughter was living with him. The motive mentioned in the crime report was that the deceased was done to death due to revenge of the divorce whereas, Mst. Shakila Bibi (PW. 3) during trial stated that Saima Bibi filed a suit for dissolution of marriage, thus, the accused-appellant nourished grudge against them and they committed murder of the deceased. Admittedly, motive is
not a component of murder and the prosecution is not bound to introduce any motive but once a motive is set up and not proved then it adversely effect the case of the prosecution. The motive set up in the FIR for the incident was either not proved or remained too vague and generalized.
18. During the investigation, investigating officer took a crime empty (P-3) from the crime scene, however, it was not dispatched to Punjab Forensic Science Agency, thus, the recovery of crime weapon shown to have been effected at the instance of the appellant was inconsequential.
19. For all these reasons, we have no hesitation to hold that the eye-witnesses produced by the prosecution before the trial Court were actually not present with the deceased at the time of occurrence and, thus, the ocular account furnished by them was ruled out of consultation. After ruling out the ocular account, the other circumstances of the case providing support to the ocular account had automatically collapsed. After scrutinizing the prosecution evidence availably on record, we are of the view that the prosecution has failed to prove the case against the appellant beyond reasonable doubt. It is settled principle of law that once a single loophole is observed in a case presented by the prosecution much less glaring conflict in the ocular account, benefit of such loophole/lacuna in the prosecution case goes in favour of the accused. In a recent case, titled Najaf Ali Shah versus The State (2021 SCMR 736), the apex Court observed as under:
“9. Mere heinousness of the offence if not proved to the hilt is not a ground to avail the majesty of the Court to do complete Justice. This is an established principle of law and equity that it is better that 100 guilty persons should let off but one innocent person should not suffer. As the preeminent English Jurist William Blackstone wrote, “Better that then guilty persons escape, than that one innocent suffer.” Benjamin Franklin, who was one of the leading figures of early American history, went further arguing “it is better a hundred guilty persons should escape than one innocent person should suffer. All the contradictions noted by the learned High Court are sufficient to cast a shadow of doubt on the prosecution’s case, which entitles the petitioner to the right of benefit of the doubt. It is a well settled principle of law that for the accused to be afforded this right of the benefit of the doubt it is not necessary that there should be many circumstances creating uncertainty and if there is only one doubt, the benefit of the same must go to the petitioner. This Court in the case of Mst. Asia Bibi v. The State (PLD 2019 SC 64) while relying on the earlier judgments of this Court has categorically held that “if a single circumstance creates reasonable doubt in a prudent mind about the apprehension of guilt of an accused, then he/she shall be entitled to such benefit not as a matter of grace and concession, but as of right. Reference in this regard may be made to the cases of Tariq Pervaiz v. The State (1998 SCMR 1345) and Ayub Masih v. The State (PLD 2002 SC 1048).” The same view was reiterated in Abdul Jabbar v. State (2010 SCMR 129), when this Court observed that once a single loophole is observed in a case presented by the prosecution, such in the ocular account and medical evidence or presence of eye-witnesses being doubtful, the benefit of such loophole/lacuna in the prosecution’s case automatically goes in favour of an accused.”
20. Seeking guidance from the law declared by the apex Court in the above mentioned cases and respectfully following the same, we allow Criminal Appeal No. 329 of 2018. The conviction and sentence awarded to the appellant vide impugned judgment dated 22.6.2016 is set aside. The appellant is acquitted of the charge. He is in jail, be released forthwith if not required in any other criminal case.
Murder Reference No. 102 of 2016 is answered in the negative and the death sentence is not confirmed.
(A.A.K.) Appeal allowed
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