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 lis replete with number of circumstances which have created serious doubt about prosecution story.

 PLJ 2021 Cr.C. (Lahore) 490

Witness--

----It is settled by now that a witness who lied about any material fact must be disbelieved as to all other facts.           [P. 495] A

Evidence--

----Evidence furnished by complainant and PWs is shaky in nature and cannot be relied upon for maintaining convictions/sentences of appellants.                                  [P. 495] B

Motive--

----Appreciation of evidence--Admittedly, motive incident took place one year prior to main occurrence and during said interregnum no untoward incident took place between parties--No solid/convincing evidence qua motive was produced by prosecution during trial--Moreover, no independent witness qua motive was joined by police in investigation or produced by prosecution in trial--Therefore, prosecution has failed to substantiate motive against appellants.                                                                                     

                                                                                             [P. 496] C

Recovery of weapon--

----Alleged recovery of sota at instance of (appellant) is concerned same does not advance case of prosecution because it was an ordinary sota, easily available in market--Likewise recovery of motorcycle at instance of appellants is concerned same is of no avail to prosecution because it was a joint recovery allegedly effected at instance of all appellants.                                                                        [P. 496] E

Medical evidence--

----As far as medical evidence is concerned, same may confirm ocular account with regard to receipt of injury, locale of injury, kind of weapon used for causing injury, duration between injury and death but it would not tell names of assailants.                                                                        [P. 496] D

Criminal Procedure Code, 1898 (V of 1898)--

----S. 342--Statement of accused--Benefit of doubt--As far as defence pleas taken by appellants in their statements under Section 342, Code of Criminal Procedure are concerned, since prosecution evidence is doubtful in nature, therefore, there is no need to discuss same which are exculpatory in nature. [P. 496] F

Pakistan Penal Code, 1860 (XLV of 1860)--

----Ss. 302, 324, 337-F(v)(vi), 337-A(i), 337-L(2), 459, 114, 148 & 149--Sentence--Challenge to--Ocular account--Appreciation of evidence--Benefit of doubt--Court have considered all pros and cons of this case and have come to this irresistible conclusion that prosecution could not prove its case against appellants 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 9 defence--In instant case, prosecution remained failed to discharge its responsibility of proving case against appellants--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 lis replete with number of circumstances which have created serious doubt about prosecution story.                             [P. 496] G

M/s. Ch. Abdul Aziz, Ghulam Rasool Sial, Muhammad Akram Khaksaar, Khan Qalb-e-Abbas Sial and Saiqa Javed, Advocates for Appellants.

Mr. Ahmad Saeed, Deputy Prosecutor General for State.

M/s. Hamad Akbar Walana and Khudadad Chattha, Advocates for Complainant.

Date of hearing: 22.2.2021.

 PLJ 2021 Cr.C. (Lahore) 490
Present: Shehram Sarwar Ch., J.
MUHAMMAD ASLAM etc.--Appellants
versus
STATE etc.--Respondents
Crl. A. No. 366-J of 2015, Crl. A. No. 43721-J of 2017, Crl. PSLA
No. 185 & Crl. Rev. No. 643 of 2015, heard on 22.2.2021.

Judgment

Muhammad Aslam, Muhammad Ashraf and Muhammad Akram (appellants) along with their co-accused namely Muhammad Akhtar, Mumtaz, Riaz, Ijaz and Haqnawaz were tried by the learned Addl. Sessions Judge, Shor Kot in a private complaint under Sections 302, 324, 337-F(v), 337-F (vi), 337-A(i), 337-L(2), 459, 114, 148 and 149, PPC instituted by Noor Ahmad, complainant (PW.1) being dissatisfied with the investigation conducted by the police in case FIR No. 801 dated 1.9.2011, offence under Sections 324, 337-F(v), 337-A(i), 337-L(2), 148 and 149, PPC, registered at Police Station Shor Kot City District Jhang for the murder of Haqnawaz and causing injuries to Ghulam Jaffar and Fareed. Vide judgment dated 30.05.2015 passed by the learned trial Court, Muhammad Akram, Muhammad Aslam and Muhammad Ashraf (appellants) have been convicted under Section 302(b), PPC and sentenced to imprisonment for life each with a further direction to pay Rs. 1,00,000/- (rupees one lakh only) each as compensation to the legal heirs of deceased as required under Section 544-A, Cr.P.C. and in default whereof to further undergo six months simple imprisonment each. They were further convicted under Section 324, PPC and sentenced to four years rigorous imprisonment each. The appellants were further convicted under Section 337-L (2), PPC and sentenced to one year rigorous imprisonment each alongwith daman Rs. 5000/-each payable to Ghulam Jaffar, injured. They were also convicted under Section 447, PPC and sentenced to three months R.I. each alogn with fine of Rs. 1000/- each and in default whereof to further undergo rigorous imprisonment for fifteen days each. All the sentences were ordered to run concurrently. Benefit of Section 382-B, Cr.P.C. was extended to the appellants. Through the same judgment learned trial Court acquitted Muhammad Akhtar, Mumtaz, Riaz, Ijaz and Haqnawaz co-accused of the appellants by extending them benefit of doubt and against their acquittal Noor Ahmad, complainant has filed Crl. PSLA No. 185 of 2015. He has also filed Crl. Revision No. 643 of 2015 for enhancement of sentences of appellants from life imprisonment to death as well as compensation. Assailing the above convictions and sentences, the appellants have filed the appeal in hand.

2. Prosecution story, as set out in the FIR (Exh.PA) registered on the application (Exh.PD) of Noor Ahmad, complainant (PW.1) is that on 30.08.2011 at about 6:00 a.m. Muhammad Akram, Muhammad Aslam and Muhammad Ashraf (appellants) along with their co-accused while armed with their respective weapons attacked upon complainant party as a result whereof Haqnawaz died whereas Ghulam Jaffar and Fareed sustained injuries. The role attributed to the appellants and their co-accused was to the effect that Muhammad Akram made a fire with rifle which landed on right thigh of Haqnawaz. Ijaz made a fire with pistol which landed on right knee of Haqnawaz. Riaz caused injuries on right and left legs of Haqnawaz with butt of rifle blows. Muhammad Ashraf inflicted sota blow which landed on arm of Haqnawaz. Muhammad Aslam made a fire with .30 bore pistol which landed on right thigh of Ghulam Jaffar, injured. Mumtaz caused injuries with butt of gun blows on different parts of body of Ghulam Jaffar. Haqnawaz caused injury with phora on head of Fareed, injured. Thereafter, two unknown accused persons caused injuries with butt of rifle blows on different parts of body of Fareed, injured. The complainants and other PWs witnessed the occurrence. Motive behind the occurrence was that one year ago daughter of Muhammad Ashraf as well as niece of Haqnawaz contracted love marriage with Riaz brother of complainant and they both adopted residence in another city, who had come to the house of complainant to meet with them and at the time of incident they were sleeping in a room of the house. Due to the above said grudge the appellants and their co-accused committed this occurrence.

Being dis-satisfied. with the investigation conducted by the police, Noor Ahmad, complainant instituted a private complaint titled as “Noor Ahmad vs. Muhammad Akram etc.”, almost on the same facts as narrated in the FIR.

3. After recording of cursory evidence in the present case, the appellants and their co-accused Muhammad Akhtar, Mumtaz, Riaz, Ijaz and Haqnawaz 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 them, to which they pleaded not guilty and claimed trial. Statements of the appellants and their co-accused under Section 342 of the Code of Criminal Procedure were recorded, wherein they refuted all the prosecution allegations levelled against them and professed their innocence. The appellants did not opt to appear as their own witnesses in disproof of the prosecution allegations as provided under Section 340(2) of the Code of Criminal Procedure. After conclusion of trial, the learned trial Court convicted and sentenced the appellants and acquitted their co-convict, as detailed above. Hence these appeals and criminal revision.

4. Arguments heard, record perused.

5. The occurrence in this case, as per prosecution, took place on 30.8.2011 at 6:00 a.m. whereas the matter was reported to the police on 1.9.2011 at 7:20 p.m. The distance between police station and the place of occurrence is eleven kilometers. There is a delay of about thirty seven 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 all the witnesses of ocular account namely Noor Ahmad, complainant (PW.1), Ghulam Jaffar (PW.2) and Umar Ali alias Umar Draz (PW.3) did not utter even a single word about the above said delay. Therefore, I hold that this inordinate delay in setting the machinery of law in 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).

6. Ocular account in this case consists of Noor Ahmad, complainant (PW.1), Ghulam Jafar (PW.2) and Umar Ali alias Umar Draz (PW.3). The presence of Noor Ahmad complainant (PW.1) on the spot at the time of incident is doubtful in nature because he did not receive even a scratch during the incident. It was the claim of said PW that soon after the incident he shifted all the injured persons to hospital but in the medico-legal-reports available on record his name is not mentioned in the relevant column accompanying the injured to hospital. The delay in the FIR also casts doubt about his presence on the spot at the time of incident. So far testimony of Ghulam Jaffar (PW.2) is concerned, his statement under Section 161, Cr.P.C. was recorded on 06.09.2011 i.e. about six days after the occurrence. It is a settled law that credibility of a witness is looked with serious suspicion if his statement under Section 161, Cr.P.C. is recorded with delay without offering any plausible explanation. Reliance is placed on case law titled as “Muhammad Khan vs Maula Bakhsh and another” (1998 SCMR 570). Moreover, Mumtaz co-accused of the appellants who allegedly caused injuries on the person of above said PW has been acquitted by the learned trial Court, meaning thereby the story of prosecution to the extent of receiving injuries by Ghulam Jaffar (PW.2) at hands of Mumtaz has been disbelieved by the learned trial Court. This argument of learned Law Officer that presence of Ghulam Jaffar (PW.2) cannot be doubted at the place of occurrence due to the injuries on his person has no substance because merely the injury on the body of a person would not stamp him/her truthful witness. Reliance is placed on case law titled as “Amin Ali and another vs. The State” (2011 SCMR 323). It was also the case of complainant that one Fareed also sustained injuries during the occurrence but he was not produced by the prosecution during the trial and as such the complainant withheld the best evidence available with him. As far as testimony of Umar Ali alias Umar Draz (PW.3) is concerned, the said PW also did not receive even a scratch during the incident. He has not explained any plausible reason for his presence on the spot at the time of incident. Moreover, Ghulam Jaffar (PW.2) and Umar Ali alias Umar Draz (PW.3) while appearing before the learned trial Court made dishonest improvements, they were confronted with their previous statements and the improvements were brought on record. There is another aspect of the case. Ijaz and Raiz co-accused of the appellants, having similar role of causing firearm injuries on the person of Haqnawaz (deceased) with that of the appellants, have been acquitted by the learned trial Court therefore, the question, for determination before us, is whether the evidence which has been disbelieved qua the acquitted co-accused of the appellants namely Ijaz and Riaz can be believed against the appellants? In this regard, I am guided by the judgment of the Hon’ble Supreme Court of Pakistan reported as “Shehbaz vs. The State” (2016 SCMR 1763), wherein it was held at page 1765 as under:

“2. ...The law is settled by now that if some eye-witnesses are disbelieved against some accused persons attributed effective roles then the same eye-witnesses cannot be relied upon to the extent of the other accused persons in the absence of any independent corroboration and a reference in this respect may be made to the cases of Ghulam Sikandar and another v. Mamaraz Khan and others (PLD 1985 SC 11), Sarfraz alias Sappi and 2 others v. The State (2000 SCMR 1758), Iftikhar Hussain and others v. The State (2004 SCMR 1185) and Akhtar Ali and others v. State (2008 SCMR 6). In the case in hand no independent corroboration worth its name was available to the extent of Shehbaz appellant inasmuch as the trial Court and the High Court had disbelieved the motive set up by the prosecution, the alleged recovery of a chhurri from the custody of the appellant was inconsequential because the recovered chhurri was not stained with blood, post-mortem examination of the deadbody of Aftab Akhtar deceased was noticeably delayed as the same had been conducted in the following morning and the duration between death and post-mortem examination was recorded as about eleven hours. It appears that time had been consumed by the complainant party and the local police in procuring and planting eye-witnesses and in cooking up a story for the prosecution. The said story of the prosecution already stands substantially disbelieved to the extent of Muhammad Abbas co-accused and we have found that the same was not free from doubt even to the extent of Shehbaz appellant.”

It is settled by now that a witness who lied about any material
fact must be disbelieved as to all other facts. I respectfully relied upon the case law reported as “PLD 2019 Supreme Court 527” in the matter of Crl. Misc. Application No. 200 of 2019 in Crl. Appeal No. 238-L of 2013 decided on 4th March, 2019. Therefore, I hold that evidence furnished by Noor Ahmad, complainant (PW.1), Ghulam Jafar (PW.2) and Umar Ali alias Umar Draz (PW.3) is shaky in nature and cannot be relied upon for maintaining the convictions/sentences of the appellants.

7. Motive behind the occurrence was that one year ago daughter of Muhammad Ashraf as well as niece of Haqnawaz contracted love marriage with Riaz brother of complainant and they both adopted residence in another city, who had come to the house of complainant to meet with them and at the time of incident they were sleeping in a room of the house. Due to the above said grudge the appellants and their co-accused committed this occurrence. Admittedly, the motive incident took place one year prior to the main occurrence and during the said interregnum no untoward incident took place between the parties. No solid/convincing evidence qua motive was produced by the prosecution during the trial. Moreover, no independent witness qua motive was joined by police in investigation or produced by prosecution in the trial. Therefore, I hold that prosecution has failed to substantiate motive against the appellants.

8. As far as medical evidence is concerned, the same may confirm the ocular account with regard to the receipt of injury, locale of injury, kind of weapon used for causing the injury, duration between the injury and the death but it would not tell the names of the assailants. Reliance is placed on “Ata Muhammad and another versus The State” (1995 SCMR 599).

9. So far as alleged recoveries of .444 bore rifle and .30 bore pistol at the instances of Muhammad Akram and Muhammad Aslam (appellants), respectively, are concerned the same are immaterial because no report of PFSA qua said weapons is available on the record. Moreover alleged recovery of sota at the instance of Muhammad Ashraf (appellant) is concerned the same does not advance the case of prosecution because it was an ordinary sota, easily available in the market. Likewise recovery of motorcycle at the instance of appellants is concerned the same is of no avail to the prosecution because it was a joint recovery allegedly effected at the instance of all the appellants.

10. As far as the defence pleas taken by the appellants in their statements under Section 342, Code of Criminal Procedure are concerned, since the prosecution evidence is doubtful in nature, therefore, there is no need to discuss the same which are exculpatory in nature.

11. I 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 appellants 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 appellants. 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).

12. For the foregoing reasons, both the appeals in hand filed by Muhammad Akram, Muhammad Aslam and Muhammad Ashraf are allowed, convictions and sentences awarded to them vide judgment dated 30.05.2015 passed by the learned Addl. Sessions Judge, Shorkot are set aside and the appellants are acquitted of the charges levelled against them while extending them benefit of doubt. Muhammad Akram and Muhammad Ashraf (appellants) are in jail. They shall be released forthwith if not required to be detained in any other case. Muhammad Aslam (appellant) is present in the Court on bail. His surety is discharged from the liability of bail bonds.

13. In view of above discussion, Crl. PSLA No. 185 of 2015 filed by Noor Ahmad complainant against the acquittal of Muhammad Akhtar, Mumtaz, Riaz, Ijaz and Haqnawaz co-accused of the appellants and Crl. Revision No. 643 of 2015 filed by complainant for enhancement of sentences of appellants from life imprisonment to death as well as compensation having no merits are dismissed.

(R.A.S.)           Appeal allowed