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--

 PLJ 2022 Cr.C. 584

Medical evidence--

----Medical evidence is merely a supportive piece of evidence and relevant only if primary evidence i.e. ocular account inspires confidence which is not situation in this case--Evidence furnished by above said PWs is shaky in nature and cannot be relied upon for maintaining conviction/ sentence of appellant.     [P. 588] A

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

----Ss. 302(b), 148 & 149--Sentence--Challenge to--Delay of 2 hours--No cogent evidence qua motive part of incident--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--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.   [P. 588] B & C

Mr. Ali Afzal Sahi, Advocte/Defence Counsel for Appellant.

Mr. Muhammad Ahmad Saeed, Deputy prosecutor General for State.

Nemo for Complainant.

Date of hearing: 20.12.2021.

 PLJ 2022 Cr.C. 584
[Lahore High Court, Lahore]
Present: Shehram Sarwar Ch., J.
SAFDAR ALI alias SUBTAIN--Appellant
versus
STATE--Respondent
Crl. A. No. 70-J of 2015, heard on 20.12.2021.

Judgment

Safdar Ali alias Subtain (appellant) alongwith his co-accused namely Imtiaz, Shahbaz Ahmad and Gulzar Ahmad was tried by learned Addl. Sessions Judge, Jaranwala in a private complaint under Sections 302, 148 and 149, PPC instituted by Ameer Ali, complainant being dissatisfied with the investigation conducted by policein case FIR No. 342 dated 17.05.2011, offence under Sections 302, 148 and 149, PPC, registered at Police Station Satiana District Faisalabad. Vide judgment dated 24.02.2015 passed by learned trial court, the appellant has been convicted under Section 202(b), PPC and sentenced to imprisonment for life R.I., with a further direction to pay Rs. 2,00,000/- (rupees two lakh only) as compensation under Section 544-A, Code of Criminal Procedure, to the legal heirs of deceased and in default whereof to further undergo six months S.I. Benefit of Section 382-B, Cr.P.C. was extended to him. Through the same judgment, learned trial Court acquitted Imtiaz, Shahbaz Ahmad and Gulzar Ahmad co-accused of the appellant by extending them benefit of doubt and no appeal against their acquittal was filed by the complainant. Assailing the above conviction and sentence, the appellant has filed the appeal in hand.

2. Precisely the facts of the case as mentioned in the FIR (Exh.PA/1) recorded on the application (Exh.PA) of Ameer Ali, complainant (PW.1) are that on 17.05.2011 at about 8:30 a.m. complainant alongwith his son Zafar Iqbal, brother Bashir Ahmad and cousin Jehangir were present in his haveli. Zafar Iqbal was watering the buffalos. In the meanwhile, Safdar Ali, Imtiaz Ali, Suqlain, all armed with 30 bore pistols, Shahbaz Ahmad armed with rifle 303 bore and Gulzar armed with 12 bore gun entered his haveli while raising lalkaras. Shahbaz raised lalkara that Zafar Iqbal be taught a lesson for quarrelling with them and be done to death whereupon Safdar Ali made a fire with 30 bore pistol which landed on right thigh of Zafar Iqbal. Second fire made by Suqlain hit on left thigh of Zafar Iqbal, who fell on the ground. On his falling position, Imtiaz Ali made a fire with pistol which landed on back side of thigh of Zafar Iqbal. Shahbaz Ahmad and Gulzar armed with firearms kept on raising lalkarasby stating that if anybody came near he would be done to death. On hearing the report of firing many people came on the spot whereupon Safdar etc while brandishing their firearms fled away from the spot. Zafar Iqbal in injured condition was being shifted to hospital through dalabut on the way he succumbed to the injuries. Motive behind the occurrence was that two days prior to the occurrence Shahbaz Ahmad called Zafar Iqbal (deceased) for thrashing his wheat, who refused whereupon a trivial quarrel took place between Shahbaz Ahmad and Zafar Iqbal and due to the said grudge the accused persons committed the incident. Being dissatisfied with the investigation conducted by the police, the complainant instituted a private complaint titled as “Ameer Ali vs. Safdar Ali etc.” on the same facts as narrated in the FIR.

3. Arguments heard, record perused.

4. The occurrence in this case allegedly took place on 17.05.2011 at 8:30 a.m. whereas the matter was reported to the police on the same day at 10:30 a.m. The distance between police station and the place of occurrence is six miles. There is a delay of about two hours in reporting the crime to the police without there being any plausible explanation. It is also worth mentioning here that while appearing before the learned trial Court both the witnesses of ocular account namely Ameer Ali, complainant (PW.1) and Bashir Ahmad (PW.2) 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. Ocular account in this case consists of Ameer Ali, complainant (PW.1) and Bashir Ahmad (PW.2). The presence of both these witnesses 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 I failed to understand that in the presence of both these PWs, who were closely related to the deceased, how such tragedy with Zafar Iqbal 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 time of incident. The ocular account is in direct conflicted with the medical evidence because in the FIR, private complaint as well as before the learned trial Court it was the case of complainant that the appellant and his co-accused caused three firearm injuries on the person of Zafar Iqbal (deceased) but Dr. Farooq Ahmad (CW.3) who conducted autopsy of the dead-body of deceased noted only two entry wounds on the person of deceased. Moreover, Imtiaz co accused of the appellant having similar role of causing firearminjury on the person of deceased with that of the appellant has been acquitted by the learned trial court and no appeal against his acquittal was filed by the complainant, therefore, the question, for determination before me, is whether the evidence which has been disbelieved qua the acquitted co accused of the appellant namely Imtaiz can be believed against the appellant? In this regard, I am guided by the judgment of the Hon’ble Supreme Court of Pakistan reported as “Shahbaz 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 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.”

Motive behind the occurrence was that two days prior to the occurrence Shahbaz Ahmad called Zafar Iqbal (deceased) for thrashing his wheat, who refused whereupon a trivial quarrel took place between Shahbaz Ahmad and Zafar Iqbal and due to the said grudge the accused persons committed the incident. No cogent evidence qua motive part of incident was produced by the prosecution during the trial. Aman Ullah S.I. (CW.2) has stated in his cross examination that “During investigation motive occurrence, related to Shahbaz accused was not proved. During investigating, complainant party did not describe any other motive to the extent of accused Saqlain and Sabtain”. The recovery of 30 bore pistol at the instance of appellant does not advance the case of prosecution because the appellant allegedly got recovered the same from an open place, accessible to everyone. The medical evidence is merely a supportive piece of evidence and relevant only if the primary evidence i.e. ocular account inspires confidence which is not the situation in this case. Therefore, I hold that the evidence furnished by the above said PWs is shaky in nature and cannot be relied upon for maintaining the conviction/ sentence of the appellant.

5. As far as the defence plea taken by the appellant in his statement under Section 342, Code of Criminal Procedure is concerned, since the prosecution evidence is doubtful in nature, therefore, there is no need to discuss the same which is exculpatory in nature.

6. 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 appellant 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 appellant. 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).

7. For the foregoing reasons, the appeal in hand filed by Safdar Ali alias Subtain (appellant) is allowed, conviction and sentence awarded to him vide judgment dated 24.02.2015 passed by the learned trial Court are set aside and the appellant is acquitted of the charge levelled against him while extending him benefit of doubt. Safdar Ali alias Subtain, appellant is in jail. He shall be released forthwith if not required to be detained in any other case.

(R.A.)  Appeal allowed