PLJ 2022 Cr.C. (Note) 12
Medical evidence--
----Medical evidence is always supportive in nature and does no corroborate ocular version in any way because medical evidence never identified culpability of accused rather only supports availability of injury at person of victim. [Para 14] C
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302--Conviction and sentence--Challenge to--Murder--Benefit of doubt--Medical evidence--Conduct of complainant and other prosecution witnesses creates a serious doubt qua their veracity and truthfulness and allegations levelled against appellant--As far as recovery of 30 bore pistol from possession of appellant is concerned, that firstly, no crime empty had been secured by Investigating Officer from place of occurrence and secondly, alleged recovery had been affected from place which was accessible to public at large and it has also not been sent for forensic analysis--Hence recovery allegedly affected from possession of appellant remained inconsequential--Prosecution was duty bound to prove its case against accused beyond reasonable doubt by producing cogent, trustworthy and reliable evidence and on its failure to do that, entire benefit arising out of same shall be resolved in favour of accused--Appeal was allowed. [Para 14] B, D & E
2019 SCMR 652, 2019 SCMR 79, 2009 SCMR 230, PLD 2002 SC 1048 and 1995 SCMR 1345.
Acquittal--
----Single doubt--It is settled law by now that even a single doubt is sufficient for acquittal of accused. [Para 14] F
Barrister Salman Safdar, Advocate for Appellant.
Mr. Mehmood Ahmad Chadhar, Advocate for Complainant.
Mr. Tariq Javed, District Public Prosecutor for State.
Date of hearing: 17.6.2019.
PLJ 2022 Cr.C. (Note) 12
[Lahore High Court, Lahore]
Present: Muhammad Waheed Khan, J.
EHSAN ULLAH KHAN--Appellant
versus
STATE etc--Respondents
Crl. A. 1200 & Crl. Rev. 622 of 2014, heard on 17.6.2019.
Evidence--
----Law is settled by now that if any party withheld best piece of evidence then it can fairly be presumed that it had sinister motive behind it. [Para 14] A
2010 SCMR 385 and 2006 SCMR 1846.
Judgment
This judgment shall dispose of Cr. Appeal No. 1200 of 2014 filed by the appellant (against his conviction and sentence) and Cr. Revision No. 622 of 2014 filed by the complainant for enhancement of sentence of the appellant. As both the matters have been arisen out of the same judgment dated 31.05.2014 passed by the learned Addl. Sessions Judge, Daska Camp at District Jail, Sialkot in a private complaint filed u/S. 302/217/218/203/201/148/149, PPC and under Article 155-C of Police Order 2002 regarding FIR No. 380/2009 dated 13.06.2009 registered u/S. 324/148/149, PPC (Section 302, PPC) was added later on) at Police Station Mautra, Tehsil Daska, Sialkot, whereby appellant was convicted and sentenced as under:
Under Section 302, PPC awarded imprisonment for life as Ta'zir. He was also directed to pay a sum of Rs. 1,00,000/-, as compensation in terms of section 544-A, Cr.P.C. to the legal heirs of the deceased Dr. Shabbir. In case of default, the convict was ordered to further undergo simple imprisonment for six months.
Benefit u/S. 382-B, Cr.P.C. was also extended to the convict.
Co-accused Irfan Khan was acquitted from the charge vide same judgment by the learned trial Court by giving him benefit of doubt. Whereas, co-accused Imran Khan, Tahir Khan and Muhammad Imran were declared proclaimed offenders by the learned trial Court.
2. Feeling aggrieved of the judgment passed by the learned trial Court, appellant has assailed his conviction and sentence by filing instant appeal. On the other hand, complainant filed revision petition for enhancement of sentence of the appellant.
3. The complainant being dissatisfied with the investigation conducted by the local police, filed private complaint by narrating the following facts:
"On 9.6.2009 at about 5.45.p.m, the complainant along with Liaqat Ali and inhabitants of locality were present at Adda Pindorian when accused Ehsan Khan armed with Pistol along with Respondents Nos.2 to 5 while armed with firearm weapons and raising lalkaras emerged there and started aerial firing on the opened shutters of shops and extended threats to shop keepers to shut their shops otherwise they would be shot dead, whereupon, all the shop keepers made the shutters of shops down and stuck with different trees and walls. Complainant's son Dr. Shabbir Ahmad was checking a patient while sitting in his clinic so he neither immediately came out nor made the shutter of his Clinic down, whereupon, Ehsan Khan while armed with pistol was standing in front of his Clinic made straight fire shots with his Pistol out of which one fire shot hit on left frontal side of his shoulder. The complainant's son called from inside of Clinic "Oey Ehsan a fire has hit to me "at which accused Ehsan Khan abused him and said what should he do if a fire shot has hit to him. Then all the accused persons while making aerial firing and creating panic in the territory went away. Then Dr. Shabbir in tottering condition fell out of his Clinic. Liaqat Ali rushed and put him on a cot. Meanwhile patrolling police mobile reached the spot and carried injured to Civil Hospital Sialkot and Dr Shabbir injured was got admitted there for treatment. The Doctors due to the serious injured condition of complainant's son referred him from Civil Hospital Sialkot to Mayo Hospital, Lahore, where he succumbed to injuries. The complainant further narrated that the accused persons are criminals and they have support of local MPA, that is why, they got their case registered promptly and also got scribed the time prior to the occurrence happened with Dr. Shabbir but despite their repeated requests Muhammad Akhtar ASI, P.S. Mautra was sent to Hospital after four days who in absence of family members of Dr. Shabbir without permission of Medical Officer in hospital recorded the statement of Dr. Shabbir by twisting the facts so as to give benefit to the accused persons. They submitted their affidavits through SP Investigation to Muhammad Akhtar ASI/I.O but he did not bring the same on record and the persons who got recorded their statements were also not recorded as they stated. The SP Investigation called Dr. Shabbir on stature before him but this fact was also not mentioned in police record in which he had stated that Ehsan Khan fired him and Respondent No. 6 got registered FIR No. 380/2009 under sections 324, 148, 149, PPC in P.S. Mautra. Anyhow, Akhtar ASI/I.O made accused Ehsan Khan fled in lieu of heavy illegal gratification and the persons who were favouring to the accused party were made eye witnesses of occurrence and also in connivance with respondents/accused persons Nos. 1 to 5 he did not record statements of complainant and eye witnesses and even he did not make part the affidavits of people who supported to the complainant. The occurrence was recorded to be happened at 6.15, whereas, it happened at 5:45. Prior permission of Medical Officer is shown to be obtained before recording statement of Shabbir injured by I.O but it does not appear from record. The defective and dishonest investigation was made by Respondent No. 6 just to save accused persons Nos. 1 to 5 from legal punishment. The Respondent No. 6 with Respondent No. 1 was booked in case FIR No. 544/2009 under Articles 222/223, 155-C of Police Orders, 2002 and after departmental inquiry he was dismissed from service. It is further narrated in complaint that in the same village after the aforesaid occurrence accused persons No. I to 5 in village murdered their own companion namely, Muhammad Arif s/o Talib Hussain and accused No. 1 also injured himself. Accused No. 1 became complainant of that case and he got registered case FIR No. 371/2009 under sections 302/34, PPC against Niaz Khan and Shahbaz Khan etc, subsequently Medical Officer in MLC of accused No. 1 mentioned the injuries caused to him are self suffered. During course of investigation of that case, Shahbaz Khan and Niaz Khan etc., were declared as innocent and held that accused
No. 1 himself had caused murder of Muhammad Arif and caused injuries to himself so as to equalize the murder of Dr.Shabbir (deceased) and to save himself and his family from legal punishment. In fact, the accused persons No. 1 to 5 are involved in many cases of capital punishment, dacoity and robbery registered in different police stations and people of locality are also fed up from their crimes. The mala fide of accused persons Nos. 1 to 5 can be established that they concealed the murder occurrence of complaint case which happened prior to murder of FIR No. 371/2009. Since the local police in collusion with accused Persons No. 1 to 5 did not investigate murder occurrence of complaint case and also destroyed the evidence of complainant, hence, instant complaint case is filed. The complainant prayed that sufficient material and evidence are available on record, hence, accused persons be punished.”
4. After recording cursory evidence, proceeding were carried out in complaint case and formal charge against the appellant alongwith his co-accused was framed, to which they pleaded not guilty and claimed trial.
5. Prosecution in order to prove its case produced as many as three witnesses, whereas twelve witnesses were summoned by the Court as CW-1 to CW-12. Ocular account was furnished by the complainant Muhammad Nazir who appeared as PW-1, Liaqat Ali, who appeared as PW-2 and Shakeel Ahmad, who appeared as PW-3. Medical evidence was furnished by CW-2 Dr. Asghar Ali who conducted autopsy on the dead body of the deceased and CW-4 Dr. Azeem Khan Lodhi appeared in place of Dr. Muzammal Ahmad, who medically examined the deceased in injured condition. Investigating Officers of case Muhammad Aslam Awan SI, Akhtar Ali SI and Muhammad Afzal SI appeared as CW-5, CW-10 and PW-12 respectively. The remaining witnesses were of formal in nature and prosecution after producing certain documentary evidence closed its evidence.
6. CW-4 Dr. Azeem Khan Lodhi, appeared in place of Dr. Muzammal Ahmad (not appeared as he had gone abroad and he conducted medical examination of Dr. Shabbir on 09.06.2009) and as per contents of MLC after medical examination of injured Dr. Shabbir Ahmad (deceased) observed following injuries;
INJURIES.
Injury No. 1. Penetrating wound 2 x 2cm X DNP (depth not probed) on lateral aspect of left shoulder. Wound is entry wound.
Injury No. 2. Exit wound 3 x 3cm XDNP, on interior aspect of left shoulder.
Whereas CW-2 Dr. Asghar Ali, who conducted postmortem examination of deceased on 17.08.2009 at 12.30 a.m. opined as under;
OPINION.
"In his opinion death occurred due to advance septicemia, consequently, sudden cardio pulmonary arrest/(facio litus). Primarily, it is result of fire arm injury (as mentioned in MLR report) leading to repeated surgical interventions. The time between injury and death within 68 to 69 days and time between death and postmortem was about within 13 to 14 hours. "
7. After completion of prosecution evidence, statement of appellant was recorded u/S. 342, Cr.P.C., who opted to appear as witness u/S. 340 (2), Cr.P.C., and also produced Muhammad Afzal SI as DW-1. While answering question (Why this case against you and why the PWs deposed against you?), appellant deposed as under:
"I was involved in this case due to previous enmity. The occurrence PWs have not been produced in this complaint case. The complainant and his Ham-Zulf/PW-2 are interested witnesses and their statements are not corroborative at all to each other. "
8. After evaluating prosecution evidence available on record, learned trial Court found the prosecution version correct beyond any shadow of doubt, which resulted into conviction and sentence of the appellant in the afore stated terms.
9. Learned counsel for the appellant in support of instant appeal submits that the prosecution has failed to prove its case against the appellant beyond reasonable doubt by producing independent, trustworthy and reliable evidence; that the occurrence allegedly took place on 09.06.2009 and private complaint was filed by Muhammad Nazir father of deceased on 20.07.2010 after lapse of about thirteen months and no explanation whatsoever has been advanced regarding such delay, wherein besides complainant one Liaqat Ali was introduced as eye witness; that originally the matter was reported by the deceased Dr. Shabbir (injured at that time) on 12.06.2009, wherein he cited Muhammad Azam and Muhammad Arif as eye witnesses of the occurrence and admittedly, both of them did not appear during the trial; that both the eye witnesses are interested witnesses as complainant (PW-1) is the father of deceased, whereas Liaqat Ali is brother in law (Hum Zulf) of the complainant, even otherwise, both of them have not plausibly explained their presence at the place of occurrence at the relevant time; that recovery of weapon of offence allegedly affected from the appellant is of no consequence, as the same has been recovered from the place which is admittedly accessible to public and secondly the same has not sent for forensic analyses and no crime empty was recovered from the crime scene, so in all eventualities, recovery remained inconsequential. Lastly submits that by accepting the instant appeal, appellant be acquitted of the charge.
10. On the other hand, learned District Public Prosecutor assisted by the learned counsel for the complainant strongly controverted the arguments advanced by the learned counsel for the appellant and submits that the prosecution has successfully proved its case against the appellant beyond reasonable doubt by producing cogent, reliable and trustworthy ocular account through the complainant Muhammad Nazir (PW-1) and Liaqat Ali (PW-2); that both the PWs have not only claimed that they had seen the occurrence but also reasonably explained their presence at the place of occurrence at the relevant time; that both the PWs have undergone lengthy test of cross-examination by the learned defence counsel but nothing fatal to the prosecution case could be extracted from their evidence and they remained consistent qua the culpability and presence of appellant at the crime scene by stating that it was the appellant, who fired at the deceased, which hit him at left side of his chest; that there is no previous enmity between the parties on the basis of which it could be presumed that appellant had been implicated in this case maliciously and even otherwise, learned counsel for the appellant could not point out any inconsistency or contradiction in the ocular version of the prosecution; that medical evidence and the conduct of the appellant, who disappeared after the occurrence and remained fugitive from law for a considerable period, fully corroborate the ocular evidence. Lastly prays that instant appeal may be dismissed and conviction and sentences recorded by the learned trial Court be upheld.
11. In support of Cr. Revision No. 622 of 2014 filed by the petitioner/complainant, learned counsel for the petitioner contends that as the prosecution has proved its case up to the hilt against the appellant/Respondent No. 1 by producing cogent, trustworthy, reliable evidence; that ocular account is sufficiently corroborated by medical evidence and evidence of abscondence of Respondent No. 1, so, there was no occasion for the learned trial Court, to award lesser sentence instead of normal penalty of death to the appellant, especially when the learned trial Court had itself admitted that prosecution has proved its case against the accused beyond reasonable doubt and lastly prays that by accepting the instant revision petition, the sentence awarded to Respondent No. 1 be enhanced from life imprisonment to death.
12. I have heard arguments and perused the record with the assistance of learned counsel for the parties.
13. After hearing the arguments of learned counsel for the parties and perusing the evidence available on record, this Court straightaway observed that the alleged occurrence took place on 09.06.2009, wherein Dr. Shabbir received injuries, who was admitted to hospital on 12.06.2009, Akhtar Ali SI (CW-10) got his statement recorded after obtaining permission from the medical officer, wherein deceased Dr. Shabbir (injured at that time) stated that he was sitting in his clinic and found that Ehsan Ullah Khan armed with 30 bore pistol (present appellant) and Imran Khan (since P.O) alongwith three unknown persons had made firing and he thereafter went inside his clinic and one bullet hit on his body and at that time two witnesses, namely, Muhammad Azam and Muhammad Arif were sitting there. After that Dr. Shabbir remained alive for 67 days but admittedly, he had not made any further statement qua the occurrence and he died on 16.08.2009. Learned counsel for the appellant vigorously argued that the present complainant Muhammad Nazir who is father of deceased Dr. Shabbir also never appeared before the police and had not made any statement claiming himself as eye witness of the occurrence and never put forth his stance before the police. The occurrence allegedly took place on 09.06.2009, whereas private complaint filed by Muhammad Nazir on 20.07.2010 with a delay of about thirteen months and in interregnum, he remained mum and went into a deep slumber. If at all, he was aggrieved, as he claimed in private complaint, he should have been approached to the high ups of police hierarchy or to the learned Ex-Officio Justice of Peace or to this Court but admittedly, he has not approached to any forum.
14. This Court noted another strange thing in the instant case that the complainant himself claimed to be eye witness but admittedly, according to the medical report in the relevant column the person who brought the injured Dr. Shabbir in Hospital had written as one of the relative. Had the complainant or PW-2 Liaqat Ali been present at the place of occurrence, either of them should have accompanied the injured to the Hospital. Yet there is another aspect of the case that two eye witnesses, namely, Muhammad Azam and Muhammad Arif whose names had been introduced by the deceased himself while lodging FIR have never been produced by the prosecution during the trial. Even, the deceased Dr. Shabbir (injured at that time) had not mentioned while lodging FIR that his father Muhammad Nazir or Liaqat Ali PW-2, were also available at the place of occurrence. All these circumstances make the stance of eye witnesses doubtful and their evidence is not worthy of reliance without having independent corroboration. So, in my opinion, prosecution has withheld the best evidence available in the instant crime. The law is settled by now that if any party withheld best piece of evidence then it can fairly be presumed that it had sinister motive behind it. Reliance is placed in this regard on the cases of "Muhammad Rafique and others v. The State and others" (2010 SCMR 385) & Lal Khan v. The State. (2006 SCMR 1846). So, the conduct of complainant and other prosecution witnesses creates a serious doubt qua their veracity and truthfulness and allegations levelled against the appellant.
15. As far as, medical evidence is concerned, although the injuries as stated by the prosecution are available at the person of deceased but at the same time, it is observed that the medical evidence is always supportive in nature and does not corroborate the ocular version in any way because the medical evidence never identified the culpability of the accused rather it only supports the availability of injury at the person of victim.
16. As far as the recovery of 30 bore pistol from the possession of appellant is concerned, I noted that firstly, no crime empty had been secured by the Investigating Officer from the place of occurrence and secondly, the alleged recovery had been affected from the place which was accessible to public at large and it has also not been sent for forensic analysis. Hence recovery allegedly affected from possession of the appellant remained inconsequential.
17. As the prosecution was duty bound to prove its case against the accused beyond reasonable doubt by producing cogent, trustworthy and reliable evidence and on its failure to do that, entire benefit arising out of the same shall be resolved in favour of the accused. It is settled law by now that even a single doubt is sufficient for acquittal of the accused. Reliance is placed on the judgments passed by the august Supreme Court of Pakistan in cases of "Muhammad Ashraf alias ACCHU v. The State (2019 SCMR 652), "Munir Ahmad and another v. The State and others" (2019 SCMR 79), "Muhammad Akram v. The State" (2009 SCMR 230), "Ayub Masih v. The State" (PLD 2002 SC 1048) and "Tariq Pervez v. The State" (1995 SCMR 1345).
The august Supreme Court of Pakistan in case of "Muhammad Akram v. The State " mentioned supra observed as under;
"For giving the benefit of doubt it is not necessary that there should be many circumstances creating doubts. Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefit, not as a matter of grace and concession, but as a matter of right."
In another judgment passed in case of "Muhammad Ashraf alias ACCHU v. The State mentioned supra the august Supreme Court of Pakistan observed as under;
"It is well settled that benefit of slightest doubt must go to an accused and in a case where the Court reached a conclusion that eye-witnesses were chance witnesses; they had not witnessed the occurrence and the prosecution story is concocted by the PWs, then the case of the accused merits plain acquittal. "
18. In sequel of above discussion, instant criminal appeal is allowed, conviction and sentence awarded by the learned trial Court to the appellant Ehsan Ullah Khan is set aside and he is acquitted of the charge. He is in jail, so, he is ordered to be released forthwith if not required to be detained in any other case.
19. So far as Criminal Revision No. 622 of 2014 filed by the complainant Muhammad Nazir is concerned, in the light of above discussion, since I have disbelieved the evidence produced by the prosecution against the appellant/Respondent No. l, therefore, Criminal Revision filed by the complainant being without merits is hereby dismissed.
(A.A.K.) Appeal allowed
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