PLJ 2021 Cr.C. (Lahore) 243 (DB)
Testimony of witness--
----It is well settled by now that when a witness improves his statement to strengthen prosecution case and moment it is concluded that improvement was made deliberately and with mala fide intention testimony of such witness does not remain reliable.
[P. 248 & 249] A
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conviction and sentence--Challenge to--Benefit of doubt--Qatl-e-amd--Contradiction between ocular account and medical evidence--Motive behind occurrence was that few days prior to incident, accused persons made aerial firing in front of house of complainant, who were forbidden in harsh tone by complainant due to illness of his father and because of said grudge accused persons committed murder of deceased and caused injuries to injured man--No exact date, time and place of motive incident have been mentioned in FIR--Moreover, motive incident was not reported to police by complainant party--If motive part of incident is admitted as true, then complainant would have been prime target of assailants instead of deceased, who allegedly forbidden appellant and his co-accused from making aerial firing--Furthermore, no independent witness qua motive was joined by police in investigation or produced by prosecution before trial Court during trial--Prosecution has failed to substantiate motive against appellant--So far as medical evidence is concerned, since have already discussed in preceding paragraph of this judgment that there is contradiction between ocular account and medical evidence--Alleged recovery of 30 bore pistol at instance of appellant is concerned same is immaterial because report of Punjab Forensic Science Agency qua pistol is in negative--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, therefore, there is no need to discuss same which is exculpatory in nature--All pros and cons of this case and have come to this irresistible conclusion that 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 Megs 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--Appeal was allowed. [Pp. 248 & 249] B, C, D, E & F
Benefit of doubt--
----It is also well established that if there is a single circumstance which creates doubt regarding prosecution case, same is sufficient to benefit of doubt to accused, whereas, instant case is replete with number of circumstances which have created serious doubt about prosecution story. [P. 249] G
2009 SCMR 230.
Mr. Shahid Naseem Garwah, Advocate/Defence Counsel appointed at State expense.
Mr. Tariq Javed, Addl. Prosecutor General for State.
Mian Mehmood Rashid, Advocate for Complainant.
Date of hearing: 2.11.2020.
PLJ 2021 Cr.C. (Lahore) 243 (DB)
Present: Sadaqat Ali Khan and Shehram Sarwar Ch., JJ.
versus
STATE--Respondent
Crl. A. No. 455-J of 2018, Crl. A. No. 708, Crl. Rev. No. 291 &
M.R. No. 101 of 2017, heard on 2.11.2020.
Judgment
Shehram Sarwar Ch., J.--Imran (appellant) alongwith his co-accused namely Zeeshan alias Shani, Zahid,’Shahid and Irfan was tried by the learned Addl. Sessions Judge, Sahiwal in case FIR No. 142 dated 23.02.2014, offence under Sections 302, 324, 148 and 149, registered at Police Station Farid Town District Sahiwal for committing the murder of Sherdil (deceased and causing injuries to Muhammad Amjad (PW.3). Vide judgment dated 5.6.2017 passed by the learned trial Court, Imran (appellant) was convicted under Section 302(b), PPC and sentenced to death alongwith fine of Rs. 1,00,000/- (rupees one lakh only) and in default whereof to further undergo simple imprisonment for six months. He was further directed to pay Rs. 1,00,000/- (rupees one lakh only) as compensation under Section 544-A, Cr.P.C. to the legal heirs of deceased and the same shall be recovered as arrears of land revenue. It is pertinent to mention here that Zahid co-accused of the appellant was also convicted under Section 337(N)(2), PPC and sentenced to pay daman Rs. 30,000/- to Muhammad Amjad, injured, however, the said accused has not filed any appeal against the above said conviction/sentence as conceded by learned Law Officer as well as learned counsel for the complainant. Through the same judgment, learned trial Court acquitted Zeeshan alias Shani, Shahid and Irfan co-accused of the appellant while extending him benefit of doubt and against their acquittal Muhammad Afzal, complainant filed Crl. Appeal No. 708 of 2017. Muhammad Afzal (complainant) also filed Crl. Revision No. 291 of 2017 for enhancement of compensation imposed upon Imran, 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. 101 of 2017 for confirmation or otherwise the sentence of death of Imran (appellant) as required under Section 374 of the Code of Criminal Procedure. 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.PB/1) registered on the application (Exh.PB) of Muhammad Afzal, complainant (PW.2) is that on 23.02.2014 at about 7:30 p.m. Imran, Zahid, Zeeshan, Shahid, all armed with 30 bore pistols and Irfan armed with toka alongwith three unknown persons came in front of the house of complainant started abusing. The mother of complainant informed him that the accused persons were extending life threats while standing in front of the house whereupon complainant alongwith his brother Muhammad Amjad, Muhammad Akram and Arshad reached the spot. In the meanwhile Sherdil, friend of the complainant, also came there. As soon as they reached in front of the house the accused persons started firing. Imran (appellant) made a fire with pistol which landed on front of chest of Sherdil who fell down. Second fire was made by Zahid which hit on left arm of Amjad brother of the complainant. Third fire was made by Imran, hitting on the arm of Amjad and fourth fire made by Shahid also hit Amjad. The accused persons also made firing while entering the house of the complainant. On hue and cry of complainant party and hearing the report of firing, the accused persons fled away while brandishing their firearms and making firing. Sherdil succumbed to the injury on the spot whereas Amjad fell on the ground having smeared with blood. The deceased and the injured were shifted to hospital through 1122. Motive behind the occurrence was that few days prior to the incident, the accused persons made aerial firing in front of the house of complainant, who were forbidden in harsh tone by the complainant due to illness of his father and because of said grudge the accused persons committed the murder of Sherdil and caused injuries to Amjad.
3. After completion of investigation, report under Section 173, Code of Criminal Procedure was submitted in this case. The appellant alongwith his co-accused was summoned by the learned Addl. Sessions Judge, Sahiwal to face the trial. Copies of relevant documents were provided to the appellant and his co-accused, as required under Section 265-C, Code of Criminal Procedure and charge was framed against them on 17.11.2014, 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 27.05.2017, 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 copy of FIR No. 235 of 2013 as Mark.A in his defence. After conclusion of the trial, the learned trial Court convicted and sentenced the appellant and acquitted his co-accused namely Zeeshan alias Shani, Shahid and Irfan 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 presence of Muhammad Afzal, complainant (PW.2) on the spot at the time of incident is doubtful in nature; that Muhammad Amjad (PW.3) cannot be considered a truthful witness; that both the witnesses of ocular account while appearing before the learned trial Court, in order to strengthen the prosecution case, made dishonest improvements, they were confronted with their previous statements and the improvements were brought on record; 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 30 bore pistol at the instance of Imran (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 Addl. Prosecutor General assisted by learned counsel for the complainant opposes this appeal on the grounds that matter was reported to the police with due promptitude; that presence of Muhammad Afzal, complainant (PW.2) and Muhammad Amjad (PW.3) 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 30 bore pistol 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 Addl. Prosecutor General for the State and gone through the record with their able assistance.
7. Ocular account in this case consists of Muhammad Afzal, complainant (PW.2) and Muhammad Amjad (PW.3). The ocular account is in direct conflict with the medical evidence because in the FIR it was the case of complainant that Imran (appellant) made a fire with pistol which landed on front of chest of Sherdil. Second fire was made by Zahid which hit on left arm of Muhammad Amjad (PW.3). Third fire was made by Imran, hitting on the arm of Muhammad Amjad and fourth fire made by Shahid also hit Muhammad Amjad but while appearing before the learned trial Court both the witnesses of ocular account changed the prosecution story to the extent of third and fourth fire allegedly made by Imran and Shahid on the person of Muhammad Amjad (PW.3) by stating that Imran and Shahid fired at Amjad PW but the same did not hit him. We have further noted that both the witnesses of ocular account while appearing before the learned trial Court in order to strengthen the prosecution case, made dishonest improvements, they were confronted with their previous statements and the improvements were brought on record. It is well settled by now that when a witness improves his statement to strengthen the prosecution case and the moment it is concluded that the improvement was made deliberately and with mala fide intention the testimony of such witness does not remain reliable. While holding so we are fortified by the dictum laid down by the Hon’ble Supreme Court of Pakistan in the cases reported as “Muhammad Rafique and others versus The State and others” (2010 SCMR 385) and “Syed Saeed Muhammad Shah and another versus The State” (1993 SCMR 550). Admittedly, the occurrence took place at night time but no source of light is mentioned in the FIR, however, while appearing before the learned trial Court both the eye-witnesses have stated in their examination-in-chief that they saw the incident in the light of an electric bulb but no bulb was taken into possession by the Investigating Officer during the course of investigation. Moreover, the prosecution story qua inflicting firearm injuries by Zahid, Imran and Shahid on the person of Muhammad Amjad (PW.3) has been disbelieved by the learned trial Court. The argument of the learned Law Officer that presence of Muhammad Amjad (PW.3) cannot be doubted at the place of occurrence due to the injury 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). Therefore, we hold that the evidence of above two eye-witnesses was not consistent, truthful and confidence inspiring.
13. For the foregoing reasons, Crl. Appeal No. 455-J of 2018 filed by the appellant is allowed, conviction and sentence awarded to him vide judgment dated 05.0672017 passed by the learned Addl Sessions Judge, Sahiwal are set aside and the appellant is acquitted of the charge levelled against him while extending him benefit of doubt. Imran (appellant) is in jail. He shall be released forthwith if not required to be detained in any other case.
14. Murder Reference No. 101 of 2017 is answered in the NEGATIVE and the sentence of death awarded to Imran (convict) is NOT CONFIRMED.
15. In view of above discussion, Crl Appeal No. 708 of 2017 against the acquittal of Zeeshan alias Shani, Shahid, Zahid and Irfan, Respondents No. 1 to 4 and Crl Revision No. 291 of 2017 for enhancement of compensation imposed upon Imran, appellant, filed by the complainant having no merits are dismissed.
(A.A.K.) Appeal allowed
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