PLJ 2022 Cr.C. 536
[Lahore High Court, Multan Bench]
Present: Muhammad Waheed Khan, J.
MUHAMMAD HANIF and others--Appellants
versus
STATE etc.--Respondents
Crl. A. No. 565-J & Crl. Rev No. 191 of 2017, heard on 28.9.2021.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b) & 34—Conviction and sentence--Challenge to--Qatl-e-Amd--Case of prosecution mainly hinges upon testimony of two eye-witnesses, whereas third eye-witness was given up by prosecution being unnecessary--There was no occasion for witnesses to visit house of deceased--Even otherwise, other eye-witness, who appeared as PW-2 is closely related to complainant being his maternal uncle and father-in-law, who narrated incident almost in a similar manner--Both PWs could be categorized as chance witnesses as they had failed to explain and establish reasons for their presence at crime scene at relevant time--Prosecution witnesses have claimed that they had seen incident through a window in light of electric bulb--Bulb which was allegedly being lit at crime scene had not been taken into possession by him--Autopsy of deceased was conducted by medical officer on 25.02.2012 at 5:00 p.m. with delay of 16 hours--Prosecution evidence has been disbelieved by learned Court to extent of acquitted co-accused Nizam Nai, hence same cannot be relied upon to maintain conviction and sentence of appellant without having any independent corroboration--Any reasonable doubt arising out from prosecution story shall be resolved in favour of accused--In instant case, prosecution story is replete with number of doubts as discussed supra, so while relying upon judgments passed by august Supreme Court of Pakistan--Appeal allowed.
[Pp. 539, 541, 542 & 543] A, B, C, D, E, F & G
1995 SCMR 896; 2016 SCMR 2021; 2018 PCr.LJ 698; PLD 1985 SC 11; 2000 SCMR 1758.
Peer Syed Muhammad Najmul Husnain, Advocate for Appellant.
Complainant in person.
Malik Mudassir Ali, Deputy Prosecutor General for State.
Date of hearing: 28.9.2021.
Judgment
This judgment shall dispose of Cr. Appeal No. 565-J of 2017 filed by appellant Muhammad Hanif (against his conviction and sentence) and Cr. Revision No. 191 of 2017 filed by the complainant Muhammad Afzal for enhancement of sentence of Respondent No. 1/appellant. As both the matters have arisen out of the same judgment dated 21.02.2017 passed by the learned Addl. Sessions Judge, Dunyapur in case FIR No. 81 dated 25.02.2012 registered under Section 302/34, PPC at Police Station City Dunyapur, District Lodhran, whereby appellant was convicted and sentenced as under:
Under Section 302(b), PPC awarded Rigorous Imprisonment for life as Ta'zir and he was also directed to pay Rs. 1,00,000/- as compensation to the legal heirs of deceased Muhammad Zaman. In default of its payment, to further undergo six months Simple imprisonment.
Benefit under Section 382-B, Cr.P.C. was also extended to - him.
It is pertinent to mention here that earlier co-accused, namely, Mst. Naseem Mai was tried by the learned trial Court and she had been convicted and sentenced by the learned trial Court vide judgment dated 31.10.2012. But due to proclaimed offender, present appellant along with his co-accused was tried by the learned trial Court and he was convicted and sentenced vide judgment dated 21.02.2017, whereas co-accused, namely, Nizam was acquitted of the charge.
2. Feeling aggrieved of the judgment passed by the learned trial Court, the appellant had assailed his conviction and sentence by filing instant appeal. On the other hand, complainant filed revision petition for enhancement of sentence of the appellant awarded to him by the learned trial Court, which is also being decided today.
3. After registration of case, police investigated the same and submitted report under Section 173, Cr.P.C. before the learned trial Court while declaring the appellant as guilty. Thereafter, formal charge against the appellant along with co-accused was framed, to which they pleaded not guilty and claimed trial. The prosecution in order to prove its case produced as many as eleven witnesses. Ocular account was furnished by the complainant Muhammad Afzal, who appeared as PW-1 and eye-witness Allah Ditta who appeared as PW-2. Muzaffar Hussain S.I. Investigating Officer of case appeared as PW-7. Draftsman Khalid Hussain appeared as PW-11 and Dr. Ghulam Yaseen Sabir, who conducted autopsy on the dead body of the deceased appeared as PW-10. The remaining witnesses were of formal in nature and the prosecution after producing certain documents closed its evidence. After completion of prosecution evidence, statement of appellant was recorded under Section 342, Cr.P.C., in which he denied all the allegations leveled against him by the prosecution. He neither opted to appear as his own witness under Section 340 (2), Cr.P.C., nor produced any evidence in his defence. After evaluating the 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.
4. In support of the instant appeal, learned counsel for the appellant has submitted that the impugned judgement is not liable to be sustained as the prosecution has failed to lead reliable and confidence inspiring evidence to substantiate its case; that both the eye-witnesses failed to explain their presence at the place of occurrence at the time of incident and both of them can be termed as chance witnesses; that the prosecution case is that the witnesses had seen the occurrence in the light of a bulb but neither the same has been shown in the site-plan nor taken into possession during the course of investigation; that even otherwise, the story narrated by the eye-witnesses was highly improbable and cannot be relied upon without having any independent corroboration, which is lacking in this case and lastly submits that by accepting the instant appeal, the appellant be acquitted of the charge.
5. On the other hand, learned Deputy Prosecutor General strongly controverted the arguments advanced by the learned counsel for the appellant and has submitted that the prosecution has successfully brought home the guilt of the appellant by producing trustworthy, reliable and coherent evidence; that the eye-witnesses being the residents of the same locality are the natural witnesses and they had no axe to grind against the appellant to falsely involve him in the alleged crime and lastly prayed that since the prosecution has proved its case up to the hilt, so, the instant appeal is liable to be dismissed.
6. In support of revision petition, the complainant has submitted that since the learned trial Court has believed and relied upon the evidence of the prosecution, so, in absence of any mitigating circumstance, there was no occasion for the learned trial Court to withhold the normal penalty of death and lastly submits that by accepting the instant revision petition the sentence of life imprisonment may be enhanced to death penalty.
"Stated that in the year 2012, I was working as driver of Ch. Ali Hassan. My elder brother Muhammed Zaman resides on the back of my house. He was working as private driver at Lahore. On 24.02.2012 at about 5:00 P.M, I along with Allah Ditta and Muhammed Sharif were sitting in my house where my elder brother Muhammed Zaman came there. He told us that his wife Naseem Bibi is of bad character and she has developed illicit relations with one Muhammed Haneef Balouch, the accused present in Court. He further told that on the same day, at about 4:00 P.M, he was present at his home when Muhammed Haneef and Nizam present in Court came in his home and demanded the diverse of his wife Naseem Mai. Muhammed Zaman told us that I refused to divorce Naseem Mai, whereupon Naseem Mai extended threats that if he do not divorce her, she will get him murdered. My brother Zaman requested us to accompany him and counsel Naseem Mai. We told him that we were going to Multan in connection with some urgent piece of work and on return, we will come to his home. At about 1:30 A.M, I along with Allah Ditta and Muhammad Sharif went to the house of my brother Zaman. The main gate of the house was opened whereas room was bolted from inside. We saw through the window in the light of electric bulb which was lightning in the Courtyard whereas the light of room was off. Naseem Mai was holding the feet of my brother Muhammad Zaman whereas Nizam Nai was holding his arms and Muhammad Haneef Balouch was strangling Muhammad Zaman with an electric wire. We made noise and the accused persons opened the door. They extended threats that if any body come forward, he will be treated like Muhammad Zaman. The accused persons fled away while scaling over the small wall of rear side of the house. We took care of my brother Muhammad Zaman, who was died. I, Allah Diita and Muhammad Sharif witnessed the occurrence. While leaving Allah Ditta and Sharif at guard of dead body, I went to the police station City, Dunyapur and I submitted the application Ex-P-A for registration of case which bears my signature as Ex.P-A/1."
I have straightway observed that at evening of the night of occurrence, Muhammed Zaman approached to the complainant at 5:00 p.m. and told to his brother that his wife Naseem Mai (co-accused) was a bad character woman and had developed illicit relations with one Muhammed Hanif (appellant). The complainant further claimed that Muhammed Hanif and Nizam Nai (acquitted co-accused) approached to his deceased brother and demanded divorce of his wife Naseem Mai and on his refusal, she extended threats to him of dire consequences. The complainant further revealed that his deceased brother Muhammad Zaman requested him and other PWs to accompany him to his house but instead of going with his deceased brother, the complainant and other PWs went to Multan for some urgent piece of work. During the course of cross-examination the said PW-1 deposed that in fact he had gone to Multan to attend Meelad at the house of Muhammad Waris and admittedly the other PWs Allah Ditta and Muhammed Sharif (not produced) had no acquaintance with said Muhammad Waris, so, there was no reason to accompany the other PWs with the complainant at Meelad allegedly arranged in the house of said Waris at Multan which place was at a distance of 62 km away from their residence.
8. As far as story of reaching back of complainant and other PWs and going into the house of Muhammed Zaman deceased at odd hours of night at 1:30 A.M. It is hard to believe, as admittedly Muhammed Zaman deceased used to live in a different house, which is situated in the backstreet of the house of the complainant. So, there was no occasion for the witnesses to visit the house of the deceased at 1:30 A.M. night. Even otherwise, other eye-witness, namely, Allah Ditta, who appeared as PW-2 is closely related to the complainant Muhammad Afzal being his maternal uncle and father-in-law, who narrated the incident almost in a similar manner. On going through his testimony, I found that he has not given any cogent and plausible reason to accompany the complainant all the way to Multan and then returned back to the house of the complainant and then going to the house of the deceased exactly at the same time when he was being murdered by the appellant and others. So, in this eventuality both the PWs could be categorized as chance witnesses as they had failed to explain and establish the reasons for their presence at the crime scene at the relevant time. There is no cavil with the proposition that when no corroborative evidence was forthcoming to support the version of a chance witness, it has to be excluded from consideration. Reliance in this regard may be placed on the judgments passed by the august Supreme Court of Pakistan titled "Zafar Hayat v. The State" (1995 SCMR 896) , "Muhammad Javed v. The State" (2016 SCMR 2021) and judgment passed by this case in case titled "Ijaz Ahmed and others v. The State and others (2018 P.Cr.L.J. 698).
"It is correct that I had not pointed out any bulb outside of the room as it was not narrated by complainant and PWs."
Even in both the site-plans, the positions of the accused persons have not been mentioned and this factum was also admitted by the above said PW during his cross-examination before the learned trial Court, who deposed as under:
"It is correct that I had not mentioned the position of the accused persons in the room, by name, in scaled site-plan Ex.PM, Ex.PM/1. It is also correct that complainant and PWs did not point out the position of the accused persons. "
10. Another aspect of the case which also goes deep qua the truthfulness of the prosecution story was that the alleged occurrence as stated in the FIR took place in the intervening night of 24/25.02.2012, whereas the time of alleged incident mentioned in the relevant column of First Information Report (FIR) was written as
(شب درمیانی), whereas according to the prosecution witnesses, it was 1:30 A.M. and the incident was reported to the police with the delay of 07 hours at 7:15 A.M. and the autopsy of the deceased was conducted by the medical officer on 25.02.2012 at 5:00 p.m. with the delay of 16 hours. So, this aspect also raised my eyebrows about the availability of the eye-witnesses at the crime scene. Had they been available there, the matter should have been reported to the police much earlier as distance of police station is mentioned just three furlong from crime scene in the relevant column of FIR. It is settled by now that unexplained delay in conducting postmortem suggests procuring/ planting eye-witnesses and fabrication of false story. Reliance is placed on the cases titled as "Irshad Ahmed v. The State" (2011 SCMR 1190) "Khalid @, Khalidi and 2 others v. The State (2012 SCMR 327), "Muhammad Ashraf v. The State (2012 SCMR 419). "Ulfat Husain v. The State" (2018 SCMR 313) "Muhammad Yaseen v. Muhammad Afzal and another" (2018 SCMR 1549) and "Muhammad Rafique alias Feeqa v. The State" (2019 SCMR 1068).
"Munir Ahmad and another v. The State and others" (2019 SCMR 79). So under the circumstances, pre consultation and due deliberation on part of the prosecution witnesses prior to lodging FIR cannot be ignored.
13. So far as Criminal Revision No. 191 of 2017 for enhancement of sentence of the accused/respondent No. 1 filed by the complainant Muhammad Afzal is concerned, as the story of prosecution has been disbelieved as discussed above, so, the Criminal Revision is dismissed.
(A.A.K.) Appeal allowed
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