PLJ 2021 Cr.C. 1834 (DB)
Delay in reporting crime--
----This delay in setting machinery of law into motion speaks volumes against veracity of prosecution version. [P. 1839] A
2019 SCMR 274.
Delay in Post-Mortem--
----Delay in post-mortem, which casts serious doubt--So it was a case of delayed post-mortem, which casts serious doubt. [P. 1839] B
2011 SCMR 1190
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 chance witness may be relied upon, provided some convincing explanations appealing to a \ prudent mind for his presence on 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. 1840] C
2015 SCMR 1142
Testimony of injured witness--
----Principle--Appraisal of evidence, even testimony of injured witness is to be subject to scrutiny, for making it basis of conviction.
[P. 1841] D
2011 SCMR 527.
Testimony of PWs--
----Principle--It is a trite principle of law and justice that once prosecution witnesses are disbelieved with respect to a co-accused then, they cannot be relied upon with regard to other co-accused unless they are corroborated by corroboratory evidence coming from independent source and shall be unimpeachable in nature but that is not available in present case. [P. 1841] E
2018 SCMR 787 and 2018 SCMR 2118.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conviction and sentence--Challenge to--Benefit of doubt--Qatl-e-amd--Delay in reporting case and post-mortem creates doubt--Testimony of chance and injured witnesses--Vital evidence--Prosecution evidence and scanning record--Deceased remained alive for 31 hours and while he was admitted in hospital his statement was not recorded by police nor by doctor regarding occurrence--It has been admitted by Dr. PW6 in his cross-examination that police made no application seeking permission to record statement of patient, patient when received was conscious and was capable to give statement--Prosecution has withheld a very important piece of evidence which was vital evidence--There is yet another intriguing aspect of matter which raised an eye brow is that according to prosecution story motive behind occurrence is that a few days ago hot words were exchanged between PW2 and appellant--It is crystal clear from prosecution evidence that PW2 was completely at mercy of accused party who were armed with deadly weapons and he received a simple injury whereas no motive was alleged against deceased--This fact also makes prosecution story highly doubtful and unbelievable--The accused to be afforded right of benefit of doubt it is not necessary that there should be many circumstances creating uncertainty and if there is only one doubt, benefit of same must go to appellant. [Pp. 1841 &1843] F, J & M
PLD 2019 SC 64, 1993 SCMR 550, 2010 SCMR 385.
Statement of witness--
----Worthy relying--It is cordial principle of law that any statement improved during trial is not worth relying, which is also deprecated by principle enunciated in two salutary judgments--Testing.
[P. 1842] G
1993 SCMR 550.
Statement of witness--
----Credibility--Statement of any witness improved at trial h not worth relying rather such improvement creates serious doubt about its veracity and credibility. [P. 1842] H
2010 SCMR 385.
Duty of prosecution--
----Specific motive--In number of judgments of Honorable Supreme Court of Pakistan mat if a specific motive is alleged by prosecution then it is duty of prosecution to establish same through cogent and confidence inspiring evidence and non-proof of motive may be considered a mitigating circumstance in favor of accused.
[P. 1842] I
2017 SCMR 713.
Principle of Law--
----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--Benjamin Franklin, who was one of leading figures of early American history, went further arguing is better a hundred guilty persons should escape than one innocent person should suffer. [Pp. 1843] K & L
M/s. Ghulam Rasool Bhatti, Iftikhar-ul-Haq Khan Sherwani, Barrister Ch. Muhammad Ishtiaq Hussain, Muhammad Nadeem, Advocates for Appellant.
Mr. Naveed Umar Bhatti, DPG for State.
M/s. Ch. Usman Ali, Mirza Tayyab Baig, Attiq-ur-Rehman Ranjha, Khawaja Mohsain Abbas, Advocates for Complainant.
Date of hearing: 20.5.2021.
PLJ 2021 Cr.C. 1834 (DB)[Lahore High Court, Lahore]Present: Shehram Sarwar ch. and Muhammad Tariq Nadeem, JJ.SULEMAN alias SULA etc.--AppellantsversusSTATE etc.--RespondentsCrl. A. No. 92479-J, M.R No. 511 & PSLA No. 69078 of 2017,decided on 20.5.2021.
Judgment
Muhammad Tariq Nadeem, J.--Suleman alias Sula (appellant) alongwith his co-accused namely Sikandar Saeed alias Shamas alias Chhama, Wahab alias Wabu, Mohsin and Wasif alias Wasu (since acquitted) was tried by the learned Additional Sessions Judge, Sialkot in a private complaint regarding the occurrence reported in case FIR No. 304 offence under Sections 302, 337-A(i), 148, 149, PPC, Police Station Cantt. Sialkot, for the murder of Ibrahim (deceased), brother of the complainant and for causing injury to Sikandar (PW-2). Vide judgment dated 20-07-2017 passed by the learned Additional Sessions Judge, Sialkot, Suleman alias Sula (appellant) has been convicted and sentenced as under:
Under Section 302(b), PPC Sentenced to death with a further direction to pay Rs. 5,00,000/- (rupees five lacs only) as compensation under Section 544-A, Code of Criminal Procedure to the legal heirs of the deceased, recoverable as arrears of land revenue and in default whereof to further undergo six months S.I.
However, by the same judgment co-accused of the appellant namely Wasif alias Wasu, Wahab alias Wabu, Mohsin and Sikandar Saeed alias Shamas alias Chhama have been acquitted of the charge by extending them benefit of doubt.
Assailing the above conviction and sentence, Suleman alias Sula (appellant) has filed Criminal Appeal No. 92479-J of 2017 in hand whereas the learned trial Court has sent Murder Reference No. 511 of 2017 for confirmation or otherwise of sentence of death awarded to Suleman alias Sula (appellant), as required under Section 374, Code of Criminal Procedure. Whereas Muhammad Tanveer (complainant) also filed PSLA No. 69078 of 2017 against acquittal of Wasif alias Wasu, Wahab alias Wabu, Mohsin and Sikandar Saeed alias shamas alias Chhama, As all these matters have arisen out of the same judgment, therefore, shall be decided together through this single judgment.
2. Precisely, facts of the case, as contained in the private complaint (Ex.PA) are that on 04-07-2016 at about 05:30 p.m, Muhammad Tanveer, complainant (PW.1) alongwith his real brother Muhammad Yousaf was going to market for shopping of Ramdan-ul-Mubarik. On the way, they saw their elder brother Muhammad Ibrahim (hereinafter referred to as the deceased) alongwith his son Sikandar (injured PW-2), who entered in the street on the motorcycle. They also saw the accused persons namely Suleman alias Sula, Shamas alias Chhama, Wahab alias Wabu, Mohsin, Wasif alias Wasu along with two unknown persons being armed with their respective weapons, having ambushed themselves and when Ibrahim and Sikandar arrived near the accused persons they stopped them where accused Shamas alias Sama pushed them on the ground from the motorcycle and raised Lalkara that they be not let go and be killed. The accused Suleman alias Sula started firing hitting one shot on left side of chest of Ibrahim, who fell down on the ground. Accused Suleman alias Sula again made firing causing injuries to the victim Ibrahim on right side of his abdomen, lower portion towards left and left thigh. Upon which Sikandar came forward to rescue his father whereupon accused Wasif alias Wasu gave a danda blow on his head, due to which he fell on the ground. Accused persons observed that the victim Ibrahim was still alive, on which the accused Wahab alias Wabu fired with his pistol hitting near right thigh and buttock of the victim. The complainant and his brother came forward on which the accused persons gave life threats to them. Thereafter, the accused persons after raising Lalkaras took to their heels.
Motive behind the occurrence as alleged in the private complaint was that a few days prior to the occurrence, some hot words were exchanged between the accused Suleman alias Sula and the injured Sikandar, which nourished the grudge.
3. It is pertinent to mention here that earlier on the complaint (Ex.PA) of complainant F.I.R. No. 304 dated 05-07-2016 u/S. 302, 337-A(i), 148, 149, PPC was registered at Police Station Cantt. Sialkot regarding the occurrence but being dissatisfied with the investigation of the police, the complainant filed the instant private complaint. The learned trial Court after recording cursory evidence, summoned the accused to face the trial and after fulfilment of required formalities, they were charged sheeted to which they pleaded not guilty and claimed trial. After prosecution evidence, statements of the appellant and his co-accused under Section 342, Code of Criminal Procedure were recorded, wherein they refuted all the allegations of the prosecution and professed their innocence. The appellant neither opted to appear as his own witness as provided under Section 340(2) Code of Criminal Procedure nor produced defence evidence.
4. The learned trial Court vide its judgment dated 20-07-2017 found the appellant guilty, convicted and sentenced him as mentioned above, however, his co-accused Sikandar Saeed alias Shamas alias Chhama, Wahab alias Wabu, Mohsin and Wasif alias Wasu were acquitted of the charge through the same judgment by giving them the benefit of doubt. Hence, both the appeals and murder reference.
5. We have heard the arguments advanced by learned counsel for the appellant as well as the learned Deputy Prosecutor General assisted by learned counsel for the complainant assiduously and perused the record with their eminent assistance.
Description: A6. As per contents of FIR, the alleged incident qua murder of Muhammad Ibrahim real brother of the complainant took place on 04.07.2016 at 5:30 p.m. and the matter was reported to the police on 05.07.2016 at 02:05 p.m. i.e. about twenty hours after the incident. The distance between police station and the place of occurrence is seven kilometers. No plausible explanation for the aforesaid delay has been brought on record. Even while appearing before the learned trial Court the prosecution witnesses did not utter even a single word about the above said delay. Therefore, we hold that this delay in setting the machinery of law into motion speaks volumes against the veracity of prosecution version. Reliance is placed on case-law titled as "Altaf Hussain vs. The State" (2019 SCMR 274).
Description: B7. Post-mortem examination on the dead body of Muhammad Ibrahim deceased was conducted at 08.20 a.m. on 6.7.2016, and as per opinion of Dr. Usman Sahi (PW-4) the time between the death and post-mortem examination was 7 hours. So it was a case of delayed post-mortem, which casts serious doubt. We may refer here the case of "Irshad Ahmed v. The State" (2011 SCMR 1190).
Similar view was given by the Hon'ble Supreme Court of Pakistan in a case reported as "Ata Muhammad and another vs. The State" (1995 SCMR 599).
8. Ocular account in this case consists of statement of Muhammad Tanvir (PW-1) real brother of the deceased, whereas, Sikandar (PW-2) son of the deceased. According to the prosecution story on 04.07.2016 at 05.30 p.m. Complainant along with his brother Muhammad Yousaf was going to purchase some articles for Aftari in the month of Ramzan. In the meanwhile, his brother Muhammad Ibrahim along with his son namely Sikandar entered in the street while riding on a motorcycle. In the corner of the street accused persons Suleman alias Soola armed with pistol, Shams alias Shama armed with pistol and Wahab alias Wahboo armed pistol, Mohsin armed with pistol, Wasif alias Wasoo armed with club all residents of Daloo Wall along with two unknown person were ambushed there when the Complainant's brother and nephew reached near them, Suleman accused inflicted fire shot on the chest of Ibrahim and made second fire on the right side of abdomen of Muhammad Ibrahim, Suleman accused also made further fire shot which also hit on the lower part of the body of Muhammad Ibrahim. Suleman also fired upon the right thigh of Muhammad Ibrahim. When complainant's nephew attempted to save his father, Wasif accused made club blow on the head of complainant's nephew. Wahab alias Wahboo also made pistol shot on the right buttock of Muhammad Ibrahim when the Complainant and his brother Yousaf attempted to rescue his brother, the accused extended threats of dire consequences.
Description: CBoth the PWs are related to the deceased and chance witnesses as statement of both the PWs are altogether different. PW-1 Tanvir states in his cross-examination that he did not tell the police about his visit to bazar. PW-2 Sikandar categorically states that he told the police about the shop where they made purchases. However, CW-10 Muhammad Yousaf has refuted both the PWs by stating that he was not told by the witnesses about their purchases from the bazar. 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 chance witness may be relied upon, provided some convincing explanations appealing to a 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 this regard we respectfully refer the case law reported as "Mst. Sughra Begum and another v. Qaiser Pervez and others" (2015 SCMR 1142).
9. While dilating upon the ocular account it is found that one eye-witness acclaimed to has received injury during the occurrence. It was pressed hard by the prosecution that injury on the person of PW is conclusive proof of his presence at the spot thus his testimony is destined to be accepted, even without scrutinizing it on the touch stone of corroboration. We feel it essential to mention here that though the injury on the person of PW indicate his presence at the spot, however, it is not a conclusive proof of what he deposed before the Court is true for the reason that injury received by him was never declared and the accused at whose hands he received the injury has been acquitted by the learned trial Court and Petition for Special Leave to Appeal has been dismissed by us today. As per settled principle laid down for appraisal of evidence, even the testimony of injured witness is to be subject to scrutiny, for making it basis of conviction. While holding so, we are guided by the observation of the Honorable Supreme Court of Pakistan expressed in the case of "Nazir Ahmad vs. Muhammad Iqbal and another" (2011 SCMR 527).
Description: EDescription: D10. The co-accused namely Wahab, Shams, Mohsin and Wasif have been acquitted of the charge. Accused Wahab and Wasif were ascribed active role in the occurrence. The learned trial Court has disbelieved the prosecution story qua the supra mentioned accused persons. It is a trite principle of law and justice that once prosecution witnesses are disbelieved with respect to a co-accused then, they cannot be relied upon with regard to the other co-accused unless they are corroborated by corroboratory evidence coming from independent source and shall be unimpeachable in nature but that is not available in the present case. Reliance is placed on "Nazir Ahmad versus The State" (2018 SCMR 787) "Haroon Shafique versus The State and others" (2018 SCMR 2118).
Description: F11. After going through the prosecution evidence and scanning the record, we have observed that in the instant case Muhammad. Ibrahim (since deceased) remained alive for 31 hours and while he was admitted in hospital his statement was not recorded by the police nor by the doctor regarding the occurrence. It has been admitted by Dr. Nadeem Ashraf PW-6 in his cross-examination that police made no application seeking permission to record statement of patient, the patient when received was conscious and was capable to give statement. In this way, the prosecution has withheld a very important piece of evidence which was vital evidence, thus, an adverse inference under illustration (g) to Article 129 of the Qanun-e-Shahadat Order, 1984 could easily be drawn that in case Muhammad Ibrahim was produced he would not have supported the prosecution version. We may refer here the case of "Muhammad Rafique and others vs. The State and others" (2010 SCMR 385).
12. According to statement of Muhammad Tanvir (PW-1), he took the injured Muhammad Ibrahim and Sikandar to the hospital but he did not produce his blood stained clothes to the police. This fact also negates the presence of PW-1 at the place of occurrence.
Description: HDescription: G13. According to cursory statement of Muhammad Tanvir Exh. DA he got recorded that "the gun shot fired by Suleman alis Sula hit on the left side of chest of my brother Ibrahim and he fell on the ground. Suleman alias Sulah made second fire hitting my brother on right side of his abdomen. The accused Suleman alias Sulah inflicted only two gun shots to my brother Ibrahim", whereas, while appearing in the witness-box before the learned trial Court Muhammad Tanvir while making dishonest improvements stated that three pistol shots were made at the person of Muhammad Ibrahim by Suleman alias Sulah (appellant). Likewise, Muhammad Tanvir also stated in his cross-examination that he recorded in cursory statement that he assigned three fire shots to accused Suleman alias Sulah which was confronted with Exh. DA wherein only two gun shots was mentioned. He further deposed in his cross-examination that he had not assigned four gun shots to the accused Sulman in complaint Exh. PA. It is cordial principle of law that any statement improved during trial is not worth relying, which is also deprecated by the principle enunciated in two salutary judgments. In the dictum of law laid down by august Supreme Court of Pakistan in the case of "Saeed Ahmed Shah vs. The State" (1993 SCMR 550), it has been held that the statement of any witness improved at trial is not worth relying rather such improvement creates serious doubt about its veracity and credibility. Similar view was held in another case reported as "Muhammad Rafique and others vs. The State and others" (2010 SCMR 385).
14. According to the FIR Exh. CW-9/1 at the place of occurrence five pistols shots were made, whereas, in private complaint Exh. PA the complainant Muhammad Tanvir has described that three pistol shots were made at the time and place of occurrence, whereas, seven empties of pistol were sent to the PFSA for analysis. In such circumstances, positive report of the PFSA Exh.PK is of no avail to the prosecution.
Description: I15. Likewise, neither the date nor the time as well as place has been mentioned by the prosecution where alleged motive part took place. Similarly no witness has been produced in respect of that incident. It has been held, in number of judgments of Honorable Supreme Court of Pakistan that if a specific motive is alleged by the prosecution then it is the duty of the prosecution to establish the same through cogent and confidence inspiring evidence and non-proof of motive may be considered a mitigating circumstance in favor of the accused. While treating it as a case of mitigation we have fortified our view by the judgment of apex Court of Pakistan reported in the case of "Muhammad Ismail vs. The State'' (2017 SCMR713).
Description: J16. There is yet another intriguing aspect of the matter which raised an eye brow is that according to the prosecution story motive behind the occurrence is that a few days ago hot words were exchanged between Sikandar (PW-2) and Suleman appellant. It is crystal clear from the prosecution evidence that PW-2 Sikandar was completely at the mercy of accused party who were armed with deadly weapons and he received a simple injury whereas no motive was alleged against Muhammad Ibrahim (deceased), father of Sikandar. This fact also makes the prosecution story highly doubtful and unbelievable.
Description: MDescription: LDescription: K17. 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 ten 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.” The accused to be afforded the right of the benefit of 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 appellant. A reference in this respect may be made to the case of "Mst. Asia Bibi vs. The State" (PLD 2019 SC 64).
18. We have considered all the pros and cons of the case and has come to an irresistible conclusion that the prosecution has failed to prove its case against Suleman alias Sula appellant beyond the shadow of doubt, therefore, we accept Criminal Appeal No. 92479-J of 2017 filed by Suleman alias Sula appellant, set aside his conviction and sentence recorded by the learned Additional Sessions Judge, Sialkot vide judgment dated 20.07.2017 and acquit him of the charge by extending him the benefit of doubt. The appellant is in jail, he be enfranchised trice from the jail forthwith if not required in any other case.
19. Murder Reference No. 511 of 2017 is answered in the NEGATIVE and the sentence of death of Suleman alias Sula appellant is NOT CONFIRMED.
20. As a natural corollary, Petition for Special Leave to Appeal No. 69078 of 2017 filed by Muhammad Tanvir complainant against the acquittal of Shams alias Sama, Wahab alias Waboo, Mohsin and Wasif alias Wasu respondents is dismissed.
(A.A.K.) Appeal accepted
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