PLJ 2021 Cr.C. (Lahore) 282 (DB)
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conviction and sentence--Challenge to--Qatl-e-amd--Benefit of doubt--There is a delay of about four hours in reporting crime to police without any plausible explanation--While appearing before trial Court both witnesses of ocular account did not utter even a single word about above said delay--This inordinate delay in setting machinery of law in motion speaks volumes against veracity of prosecution version--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--If motive part of incident is admitted as true, then father of complainant as well as deceased would have been prime target of assailants instead of (deceased, who allegedly snubbed appellant at time of motive incident--Furthermore, no independent witness qua motive was joined by police in investigation or produced by prosecution before trial Court during trial--Therefore, we hold that prosecution has failed to substantiate motive against appellant--So far as medical evidence is concerned, since already discussed in preceding paragraph of this judgment that there is contradiction between ocular account and medical evidence--Alleged recovery of Kalashnikov at instance of appellant) is merely a corroborative piece of evidence and relevant only if primary evidence i.e. ocular account inspires confidence which is not situation in this case--So far as defence plea taken by appellant in his statement under Section 342, Code of Criminal Procedure is concerned, since prosecution evidence is doubtful in nature which is exculpatory in nature--Prosecution could not prove its case against appellant 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 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--Appeal was allowed by extending him benefit of doubt.
[Pp. 286, 287, 288 & 289] A, B, D, E, F, G & H
2019 SCMR 274, 2014 SCMR 1197, 2014 SCMR 1698 and
2009 SCMR 230
“Falsus in uno falsus in omnibus”--
----It is settled by now that a witness who lied about any material fact must be disbelieved as to all other facts by applying principle of falsus in uno falsus in omnibus. [P. 288] C
2018 SCMR 344; PLD 2019 SC 527.
Mr. Shahid Naseem Garwah, Advocate/Defence Counsel appointed at State expense for Appellant.
Rai Akhtar Hussain, Deputy Prosecutor General for State.
Mr. Zafar Mehmood Ch., Advocate for Complainant.
Date of hearing: 28.10.2020.
PLJ 2021 Cr.C. (Lahore) 282 (DB)
Present: Sadaqat Ali Khan and Shehram Sarwar Ch., JJ.
versus
STATE and others--Respondents
Crl. A. No. 59906-J, 27086, Crl. Rev. No. 27077 & M.R. No. 274 of 2017, heard on 28.10.2020.
Judgment
Shehram Sarwar Ch., J.--Zia Ullah (appellant) alongwith his co-accused namely Rahid Ramzan alias Radha was tried by the learned Addl. Sessions Judge Gojra in case FIR No. 118 dated 4.3.2014, offence under Sections 302 and 34, PPC, registered at Police Station Saddar Gojra District Toba Tek Singh for the murder of Muhammad Asif brother of the complainant. Vide, judgment dated 19.04.2017 passed by the learned Addl. Sessions Judge, Gojra, Zia Ullah (appellant) was convicted under Section 302(b), PPC and sentenced to death with a further direction to pay Rs. 2,00,000/- (rupees two lakh only) as compensation under Section 544-A, Cr.P.C. to the legal heirs of deceased and in default whereof to further undergo simple imprisonment for six months. Through the same judgment learned trial Court acquitted Rahid Ramzan alias Radha co-accused of the appellant while extending him benefit of doubt and against his acquittal Muhammad Asghar, complainant filed Crll. Appeal No. 27086 of 2017. Muhammad Asghar (complainant) also filed Crl. Revision No. 27077 of 2017 for enhancement of compensation imposed upon Zia Ullah, appellant. Assailing the above conviction and sentence, the appellant has filed the appeal in hand whereas the learned trial Court has sent Murder Reference No. 274 of 2017 for confirmation or otherwise the sentence of death of Zia Ullah (appellant) as required under Section 374 of the Code of Criminal Frocedure. Since all these matters have arisen out of the same judgment, therefore, are being decided together through this single judgment.
2. Prosecution Story, as set out in the FIR (Exh.PA/1) registered on the application (Exh.PA) of Muhammad Asghar, complainant (PW.6) is that he (complainant) was resident of Chak No. 299/JB Tehsil Gojra and an agriculturalist. On 04.03.2014 at 11:45 a.m his brother Muhammad Asif was coming to his village No. 299/JB by brining fodder from his land situated at Chak No. 300/JB. When he reached near Haveli Hanif Gujjar, Rana Zia Ullah and an unknown person while armed with Kalashnikovs came there on motorcycle. After alighting from motorcycle, Zia Ullah started abusing Muhammad Asif and raised lalkara that today he would be done to death. Zia Ullah made straight fire with Kalashnikov which landed on front of chest of Muhammad Asif and made its exit from his right armpit. Second fire was made by unknown person with Kalashnikov hitting on right arm of Muhammad Asif and went through and through. The occurrence was witnessed by the complainant, Muhammad Naeem, Amir Ali and Muhammad Ismaeel. On hue and cry of witnesses the accused persons fled away towards Chak No. 300/JB while making aerial firing. Muhammad Asif, smeared with blood, fell down on earth. The complainant’s side shifted Muhammad Asif in injured condition to Eye-cum-General Hospital Gojra where he succumbed to the injuries. Motive behind the occurrence was that three days ago a quarrel took place between Rana Zia Ullah and Muhammad Usman, relative of the complainant whereupon father of complainant snubbed Zia Ullah (appellant) and due to the said reason the appellant committed the murder of Muhammad Asif (deceased).
3. After completion of investigation, report under Section 173, Code of Criminal Procedure was submitted in this case. The appellant was summoned by the learned Addl. Sessions Judge, Gojra to face the trial. Copies of relevant documents were provided to the appellant, as required under Section 265-C, Code of Criminal Procedure and charge was framed against him on 14.05.2014, to which he pleaded not guilty and claimed trial. Statement of the appellant under Section 342 of the Code of Criminal Procedure was recorded on 17.09.2016, wherein he refuted all the prosecution allegations levelled against him and professed his innocence. The appellant neither opted to appear as his own witness, in disproof of the allegations levelled against him, as provided under Section 340(2), Code of Criminal Procedure nor did he produce any evidence in his defence. After conclusion of the trial the learned trial Court convicted and sentenced the appellant and acquitted his co-accused namely Rahid Ramzan alias Radha as detailed above. Hence these appeals, criminal revision and murder reference.
4. Learned counsel for the appellant contends that the appellant has falsely been implicated in this case; that there is a delay of about four hours in reporting the matter to the police without there being any satisfactory explanation; that both the witnesses of ocular account namely Muhammad Asghar, complainant (PW.6) and Muhammad Ismaeel (PW.7) are chance PWs and their presence on the spot at the time of incident is doubtful in nature; that motive has not been proved against the appellant; that the ocular account is in direct conflict with the medical evidence; that alleged recovery of Kalashnikov (P.2) at the instance of Zia Ullah (appellant) is inconsequential; that viewing from all angles the prosecution case is doubtful in nature and the appellant is entitled to the benefit of doubt not as a matter of grace but as of right.
5. On the other hand, learned Deputy Prosecutor General assisted by learned counsel for the complainant opposes this appeal on the grounds that there was no conscious or deliberate delay in reporting the matter to the police; that presence of Muhammad Asghar, complainant (PW.6) and Muhammad Ismaeel (PW.7) on the spot at the time of incident is quite natural and probable; that motive has been proved against the appellant; that prosecution case is fully supported by medical evidence and further corroborated by the recovery of Kalashnikov (P.2) at the instance of appellant; that the prosecution has successfully brought home guilt against the appellant beyond any shadow of doubt and there is no merit in this appeal.
6. We have heard learned counsel for the parties as well as the learned Deputy Prosecutor General for the State and gone through the record with their able assistance.
8. Ocular account in this case consists of Muhammad Asghar, complainant (PW.6) and Muhammad Ismaeel (PW.7). The presence of both these PWs on the spot at the time of incident is doubtful in nature because they did not receive even a scratch during the incident. Moreover, they allegedly saw the incident from a close distance but we failed to understand that in the presence of both these PWs, who were closely related to the deceased, how such tragedy with the deceased could happen without any intervention on their part to rescue the deceased. The delay in the FIR also casts doubt about their presence on the spot at the relevant time. In the FIR it was the case of complainant that Zia Ullah made a straight fire with Kalashnikov which landed on front of chest of Muhammad Asif and made its exit’ from his right armpit. The doctor (PW.5), who conducted autopsy of the dead-body of Muhammad Asif (deceased) noted the above said injury as an exit wound. We have further noted that both the witnesses of ocular account while appearing before the learned trial Court made dishonest improvements in order to strengthen the prosecution case, they were confronted with their previous statements and the improvements were brought on record. We have further observed that both the witnesses of ocular account were chance witnesses because the occurrence in this case had taken place far away from their houses. Both these PWs have no agricultural land or place of business near the place of occurrence. Before the learned trial Court they have not given any plausible reason for their presence on the spot at the time of incident. Therefore, we hold that both the above said PWs were chance witnesses. 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. Reliance may be placed on the cases reported as “Mst. Shazia Parveen vs. The State” (2014 SCMR 1197) and “Muhammad Rafique vs. The State” (2014 SCMR 1698). 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.
“2. ... The law is settled by now that if some eye-witnesses are disbelieved against some accused persons attributed effective roles the 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 Shahbaz 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 Shahbaz appellant.”
10. Motive behind the occurrence was that three days ago a quarrel tool place between Rana Zia Ullah and Muhammad Usman, relative of the complainant whereupon father of complainant snubbed Ziao Ullah (appellant) and due to the said reason the appellant committed the murder of Muhammad Asif (deceased). The following portion of cross examination of Muhammad Asghar, complainant (PW.6) is relevant which is reproduced as under:
“It is correct that I have not mentioned in FIR the details regarding the time, place, PWs and assailants of quarrel took place three days prior to the occurrence. It is correct that I have not got mentioned in FIR the details of cause of quarrel took place in between Muhammad Usman and Zia-Ullah accused. Blows of Sotas were made in the occurrence took place three days prior to the present occurrence, however, I do not know as how much time was consumed in said quarrel in between Muhammad Usman and Zia Ullah accused. None of the parties informed the police about the fight taken place three days prior to present occurrence in between Usman and Zia-Ullah ...”
15. For the foregoing reasons, Crl. Appeal No. 59906-J of 2017 filed by the appellant is allowed, conviction and sentence awarded to him vide judgment dated 19.04.2017 passed by the learned Addl Sessions Judge, Gojra are set aside and the appellant is acquitted of the charge levelled against him while extending him benefit of doubt. Zia Ullah (appellant) is in jail. He shall be released forthwith if not required to be detained in any other case.
16. Murder Reference No. 274 of 2017 is answered in the NEGATIVE and the sentence of death awarded to Zia Ullah (convict) is NOT CONFIRMED.
17. In view of above discussion, Crl. Appeal No. 27086 of 2017 against the acquittal of Rahid Ramzan alias Radha, Respondent No. 1 and Crl. Revision No. 27077 of 2017 for enhancement of compensation imposed upon Zia Ullah, appellant, filed by the complainant having no merits are dismissed.
(A.A.K.) Appeal allowed
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