Credibility of witness--
----It is settled law that credibility of a witness is looked with serious suspicion if his statement under Section 161, Cr.P.C. is recorded with delay without offering any plausible explanation. [Para 13] A
1998 SCMR 570.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conviction and sentence--Challenge to--Qatl-e-amd--Murder reference--Credibility of eye-witness--Benefit of doubt--Both these witnesses are chance witnesses and have failed to establish their presence at time of occurrence at place of occurrence--Even otherwise, sequence of events narrated by them in their statements is rather highly improbable--Evidence of these two eye-witnesses is absolutely unreliable--Prosecution has failed to establish any relation of appellants with mother-in-law of deceased (mentioned in motive story)--Prosecution has failed to prove motive against appellants--He further stated that at same time, he disclosed and got recovered I.D. Card of deceased which was also taken into possession through recovery memo.--This witness had not stated that dagger was blood stained at time of recovery, hence, positive reports of Chemical Examiner and Serologist are not believable and are discarded--Held: It is settled principle of law that for giving benefit of doubt, it is not necessary that there should be many circumstances creating doubt--If there is a circumstance which creates reasonable doubt in prudent mind about guilt of accused, then they would be entitled to its benefit not as a matter of grace or concession, but as of right.
[Para 14, 15, 16 & 20] B, C, D & E
2016 SCMR 1635, 2011 SCMR 1378 and 2009 SCMR 230.
Ch. Muhammad Ashraf Goraya, Advocate for Appellants.
Ms. Alveena Sharif, Advocate vice counsel for Appellant.
Mr. Munir Ahmad Sial, DPG for Respondents/Complainant/ State.
Date of hearing: 1.11.2016.
PLJ 2022 Cr.C. (Note) 16
[Lahore High Court, Lahore]
Present: Sadaqat Ali Khan and Shehram Sarwar Ch., JJ.
MUHAMMAD MUNIR etc.--Appellants
versus
STATE etc.--Respondents
Crl. A. No. 1387 of 2013, Crl. A. No. 241/J of 2016, M.R No. 366 of 2013 & PSLA No. 203 of 2013, heard on 1.11.2016.
Judgment
Sadaqat Ali Khan, J.--This single judgment shall dispose of Criminal Appeal No. 1387 of 2013 filed by Muhammad Munir and Sarfraz appellants, Criminal Appeal No. 241/J of 2016 filed by Muhammad Qurban, Muhammad Munir and Sarfraz appellants through jail authorities, PSLA 203 of 2016 filed by Muhammad Hussain complainant against Muhammad Siddique and Muhammad Amjad (acquitted accused) and Murder Reference No. 366 of 2013 sent by the learned trial Court for confirmation of death sentence of Muhammad Qurban appellant or otherwise, as the above said all matters have arisen out of the same judgment dated 31.10.2013 passed by learned Additional Sessions Judge, Pakpattan according to which the appellants Muhammad Munir, Muhammad Qurban and Sarfraz appellants were convicted and sentenced as under:
Muhammad Qurban | He was convicted under Section 302(b), PPC as Tazir and sentenced to death with compensation of Rs. 2,00,000/- to the legal heirs of Muhammad Aslam alias Mahi Sajan deceased as required under Section 544-A, Cr.P.C. which shall be recoverable from his immoveable property as arrears of land revenue and if he has not such property, he shall further undergo six months S.I. Benefit of Section 382-B, Cr.P.C. was extended to him. |
Muhammad Munir | He was convicted under Section 302(b), PPC as Tazir and sentenced to life imprisonment with compensation of |
Sarfraz | He was convicted under Section 302(b), PPC as Tazir and sentenced to life imprisonment with compensation of Rs. 2,00,000/- to the legal heirs of Muhammad Aslam alias Mahi Sajan deceased as required under Section 544-A, Cr.P.C. which shall be recoverable from his immoveable property as arrears of land revenue and if he has not such property, he shall further undergo six months S.I. Benefit of Section 382-B, Cr.P.C. was extended to him. |
in private complaint arising out of FIR No. 12 dated 11.01.2012 under Sections 302, 148, 149, PPC, Police Station Chakbedi, Distt. Pakpattan. Muhammad Siddique and Muhamad Amjad co-accused have been acquitted through the impugned judgment.
2. The facts of the case have been stated by Muhammad Hussain complainant P.W.1 (real brother of Muhammad Aslam alias Mahi Sajan deceased) in his statement before the learned trial Court which is hereby reproduced for narration of the facts:
"It is stated that on 10.1.2012, my younger brother Muhammad Aslam alias Mahi Sajjan aged about 27/28 years, went for labour along with Muhammad Siddique and Amjad accused persons on their request towards Farm Dalmyan Gunj on the tralla of said farm. At Maghrab Waila, the said tralla came in the village to leave the labourers at their houses, but my brother did not reach at house till Esha. I became worried about my brother and went for search along with Muhammad Hussain s/o Khan Muhammad, Wali Muhammad s/o Muhammad Sadiq PWs and when we reached three acres away from MOchi Pura at the turbine of Asghar Patwari, we saw accused persons namely Muneer, Qurban and Sarfraz who told us that my brother Aslam left the trolla along with Siddique and Amjad. We continued our search and reached near the graveyard of village and listened some noises and we saw in the light of torches five accused persons namely Munir Ahmad, Muhammad Qurban, Sarfraz, Siddique and Amjad armed with fire-arms and pouring soil in a hole and we identified the accused persons in the light of torches. We raised alarm on which the accused persons fled away and we saw that the dead body of Muhammad Aslam, my brother was lying in the said hole and his neck was cut through sharp edged weapon. The said accused persons with their common object murdered my younger brother Aslam and the PWs Muhammad Nawaz s/o Allah Ditta, saw the said accused persons on 10.1.2012 at Esha waila when he was present in his onion crop for irrigation and when he reached near the turbine of Asghar, Lal Din PW also came from Jowaya Kalya and they listen some noises. When they reached towards the noises, they saw in the light of torches that accused, Sarfraz, Qurban and Munir forcibly laid my younger brother Aslam in the Khal and Sarfraz accused grappled from his hands and hair and Munir accused grappled his legs and Qurban accused with his churri, was cutting the neck of my brother Aslam and he died at the spot. The other accused persons namely Siddique and Amjad were present there who threatened the PWs that if they make noise, they will be done to death and the accused persons also took mobile and I.D card of the deceased from his pocket. The PWs namely Lal Din and Muhammad Nawaz told me that they were frightened and did not tell this fact to me at that time.
Motive behind the occurrence is that my younger brother made fire shot on his mother in law about one and half year prior to this occurrence and the case was registered against him but the compromise was affected, but accused persons Munir etc. had grudge in their mind due to this revenge, they murdered my younger brother Muhammad Aslam with their common intention.
I complained about the occurrence and the FIR No. 12/12 dated 11.1.12 u/S. 302/148/149, PPC Police Station Chakbedi was registered and the case was investigated by Ghulam Murtaza S.I/I.O who connived with the accused persons namely Siddique and Amjad and did not mention the offence u/S. 365, PPC. He took illegal gratification from Siddique and Amjad, destroyed and recoveries and declared Siddique and Amjad innocent who were found guilty during the investigation. The 1.0 also destroyed my supplementary statement and the supplementary statement of PWs Nawaz and Lal Din to destroy my case. I filed many applications to the high-ups of the police and to AIG investigation Lahore for change of" investigation, but all in vain. Then I filed the instant private criminal Complaint Ex.P.A."
3. After filing of private complaint, learned trial Court recorded cursory evidence produced by Muhammad Hussain complainant P.W. 1 and thereafter summoned the appellants and their co-accused mentioned above to face the trial.
4. Learned trial Court after observing legal formalities provided under the Criminal Procedure Code framed the charge against the appellants (Muhammad Munir, Muhammad Qurban and Sarfraz) and Muhammad Siddique and Muhammad Amjad (acquitted accused) under Sections 302, 365, 148, 149, PPC on 16.05.2013 to which they pleaded not guilty and prosecution evidence was summoned.
5. The prosecution produced Muhammad Hussain complainant P.W.I, Wall Muhammad P.W.2, Muhammad Nawaz P.W.3, Lal Din P.W.4, Dr. Riaz Ahmad P.W.5, Ghulam Mustafa Chughtai Draftsman C.W.I, Muhammad Yasin 126/HC C.W.2, LiaqatAli 445/C C.W.3 and Ghulam Murtaza S.I. C.W.4 and after tendering reports of Chemical Examiner (Ex.P.M, Ex.P.N) and those of Serologist (Ex.P.O, Ex.P.P) closed the prosecution evidence.
6. Medical evidence was furnished by Dr. Riaz Ahmad P.W.5, who conducted post-mortem examination on the dead body of Muhammad Aslam alias Mahi Sajan deceased on 11.01.2012 and observed as under:
"INJURY
An incised wound 16-cm x 6-cm on the front, left and right side of neck 4-cm below right ear, 5-cm below chin, 5-cm below the left ear and 4-cm above the middle part of front of chest.
ON DISSECTION.
Skin soft tissues, muscles, blood vessels of the neck along with trachea, hyoid bone and esophagus were damaged.
All the other organs of the body were healthy. Stomach contained about one ounce semi digested food and urinary bladder contained about 20-cc residual urine. Pericardium and heart were healthy and contained about 25-cc blood.
OPINION:
In my opinion the above stated injury was anti- mortem in nature and caused by sharp edged weapon. The cause of death in this case was cut throat leading to damage of major blood vessels of neck resulting in hemorrhagic shock and death under injury No. 1 which was sufficient to cause death in ordinary course of nature."
7. On the other hand, statements Muhammad Munir, Muhammad Qurban and Sarfraz appellants under Section 342, Cr.P.C. were recorded in which they refuted the allegations leveled against them by the prosecution. They neither opted to appear as witness under Section 340(2) of Cr.P.C. nor produced any defence evidence. In reply to the question "Why this case against you and why the PWs deposed against you? Muhammad Qurban appellant replied as under:
"It was a false case. The PWs were not present at the alleged time of occurrence at the alleged place of occurrence. It was a unseen murder which was committed at any other unknown place and complainant party came to know about the presence of dead body of the deceased on the following day by some people of the village subsequently after consulting and premeditation with the connivance of the police got registered this false case. The eye-witnesses are planted and arranged. I and my co-accused are innocence and we have been falsely implicated in this case with ulterior motive and suspicion. I and my co-accused have no grudge and motive against the deceased. The parents and kith and kins of the deceased did not support the false version of the complainant during the investigation. No one from the area appeared before the 1.0 and Court of law in order to support of false version of complainant. The PWs are closely related inter-se and complainant. Similarly, they are not residents of the village of the complainant. They were imported by the complainant during the investigation and recorded their statements with consultation and delay during the investigation. The version of the complainant was not found correct during the investigation and police my co-accused Siddique and Amjad innocent in this case. All the PWs are interested unnatural and chance witnesses as per their statements and so they falsely deposed personal interest and relationship with the complainant."
In reply to the question "Why this case against you and why the PWs deposed against you? Muhammad Munir appellant replied as under:-
"I adopt the detailed answer of my co-accused Qurban for answer of this question."
In reply to the question "Why this case against you and why the PWs deposed against you? Sarfraz appellant replied as under:
"I adopt the detailed answer of my co-accused Qurban for answer of this question."
8. After conclusion of the trial, learned trial Court convicted the appellants (Muhammad Munir, Muhammad Qurban and Sarfraz) with above stated sentences while acquitting their co-accused (Muhammad Siddique and Muhammad Amjad) mentioned above. Hence these appeals and PSLA.
9. Learned counsel for the appellants have contended that:
i. the impugned judgment of the trial Court dated 31.10.2013 is against law and facts and is liable to be set-aside;
ii. it is submitted that the story of the prosecution is improbable and not believable;
iii. it is further submitted that prosecution has failed to prove its case against the appellants beyond shadow of doubt and the learned trial Court wrongly convicted appellants in surmises and conjectures;
iv. and lastly submitted for the acceptance of the appeals of the present appellants.
10. On the other hand, learned DPG has vehemently opposed the appeal and submitted that the prosecution has proved its case beyond any shadow of doubt against the appellants with solid evidence and prayed for the dismissal of the present appeals. Muhammad Hussain complainant P.W.1 submitted in PSLA No. 203 of 2013 that Muhammad Siddique and Muhammad Amjad (acquitted co-accused) are also liable to be convicted under Section 302 (b)/34, PPC having common intention which has been proved by the prosecution.
11. We have heard the learned counsel for the appellants as well as learned DPG and perused the record.
12. The detail of prosecution case has been given in para 2 of this judgment, therefore, there is no need to repeat the same to avoid duplication and repetition.
13. According to the FIR, occurrence took place between the night of 10/11 January, 2012, whereas FIR was registered on 11.01.2012 at 12:10 a.m. (midnight) on the written application of Muhammad Hussain complainant P. W. 1 (real brother of Muhammad Aslam alias Mahi Sajan deceased). Prosecution has introduced following accused in this case:
1. Muhammad Siddique, | |
2. Muhammad Amjad | (These two accused have been acquitted by the learned trial Court through the impugned judgment and PSLA No. 203 of 2013, filed by Muhammad Hussain complainant P.W. 1 has also been dismissed today (01.11.2016) by this Court. |
3. Muhammad Qurban, | |
4. Muhammad Munir and | |
5. Sarfraz | (appellants) |
Muhammad Abbas (Muhammad Nawaz) son of Allah Ditta P.W.3 and Lal Din P.W.4 claim themselves to be the eye-witnesses of the occurrence. They stated in their statements (examination-in-chief) that on 10.01.2012 at the time of Isha prayer, they were present near the turbine ofAsghar Patwari and heard hue and cry coming from eastern side of the road and rushed there and saw in the light of torch that Sarfraz appellant was holding the arms and hair of Muhammad Aslam alias Mahi Sajan deceased, Munir appellant was holding his legs and Qurban appellant applied churri at his neck. Appellants picked up I.D. card and mobile phone of Muhammad Aslam alias Mahi Sajan deceased. It is important to note here that names of these two eye-witnesses are not mentioned in the written application Ex.P.A/1 moved by Muhammad Hussain complainant P. W. 1 for registration of FIR Bx.P.W.1/A. Lal Din P.W.4 stated in cross-examination that he did not show the place of occurrence to the police even he did not know who had shown place of occurrence. He further stated in cross-examination that he did not show the place of occurrence to anyone. Further Ghulam Murtaza S.I. C.W.4 I.O. of this case admitted in cross-examination that P.Ws. Muhammad Abbas (Muhammad Nawaz) and Lal Din alleged eye-witnesses did not appear before him. This witness further stated in cross-examination that Muhammad Abbas (Muhammad Nawaz) P.W.3 and Lal Din P.W.4 had approached him on 11.10.2013 but he was busy in a case of dacoity. He further admitted in cross-examination that the statements of Muhammad Abbas (Muhammad Nawaz) P.W.3 and Lal Din P.W.4 (Ex.DB and Ex.DC) were recorded without any omission or addition on his part. Perusal of Ex.D.B and Ex.D.C (statements of Muhammad Abbas (Muhammad Nawaz) P.W.3 and Lal Din P.W.4 recorded under Section 161, Cr.P.C. during investigation) show that these two witnesses appeared before the I.O. of this case/C.W.4 on 12.01.2012 with unexplained delay of two days from the date of occurrence (10.01.2012) mentioned by them in their statements. It is settled law that credibility of a witness is looked with serious suspicion if his statement under Section 161, Cr.P.C. is recorded with delay without offering any plausible explanation. Reliance is placed on case reported as "Muhammad Khan vs. Maula Bakhsh and another" (1998 SCMR 570) in which Hon'ble Supreme Court of Pakistan has observed at page 575 as under:
"It is a settled law that credibility of a witness is looked with serious suspicion if his statement under Section 161, Cr.P.C. is recorded with dealy without offering any plausible explanation."
Furthermore, both these witnesses have stated in their statements (examination-in-chief) that they had identified the appellants in the light of torch in the dark of night, which is otherwise not believable. Muhammad Abbas (Muhammad Nawaz) P.W.3 stated in his statement regarding his presence at the place of occurrence at the time of occurrence as under:
"It is stated that on 10.1.2012, I was going to irrigate. It was time of Esha prayer. When I reached near the turbine of Asghar Patwari, where I met with Lal Din who was coming from Jawaya Kalya. We listen hue and cries towards eastern side of the road and we rushed there."
Likewise Lal Din P.W.4 stated in his statement regarding his presence at the place of occurrence at the time of occurrence as under:
"It is stated that on 10.1.2012, It was time of Esha prayer. I was coming from Jowa Kalya. When I reached near the turbine of Asghar Patwari, where I met with Nawaz. We listen hue and cries towards eastern side of the road and we rushed there."
14. Considering above, we are of the view that both these witnesses are chance witnesses and have failed to establish their presence at the time of occurrence at the place of occurrence. Even otherwise, the sequence of events narrated by them in their statements is rather highly improbable. The evidence of these two eye-witnesses is absolutely unreliable.
15. Muhammad Hussain complainant P.W.I and Wali Muhammad P.W.2 do not claim themselves to be the eye-witnesses of the occurrence. They stated that on 10.01.2012, they went for search of Muhammad Aslam alias Mahi Sajan deceased who did not come back at his home till Esha prayer after his work, when they reached three acres from Mochi Pura at the turbine of Asghar Patwari and saw appellants who told them that his brother Muhammad Aslam alias Mahi Sajan deceased left the trolla along with Siddique and Amjad (acquitted accused). They further stated that they continued search and reached near graveyard of the village and heard some noises and saw in the light of torches that the appellants (Muhamamd Munir, Muhamamd Qubran and Sarfraz), Muhammad Siddique and Muhammad Amjad (acquitted accused) were throwing soil in a hole, they raised alarm on which the appellants and Muhammad Siddique and Muhammad Amjad (acquitted accused) fled away and they saw that dead body of Muhammad Aslam alias Mahi Sajan deceased was lying in the said hole. Above mentioned evidence is neither plausible nor believable. Reliance is placed on case reported as "Sarfraz Ahmad v. The State" (2016 SCMR 1635) in which Hon'ble Supreme Court of Pakistan has observed at page 1636 as under:
"2. We have heard the learned counsel for the parties and have straightaway observed that the alleged kidnapping, commission of Zina-bil-Jabr and murder of the minor namely Mst. Fatima had never been witnessed by anybody and the prosecution had utterly failed to bring any direct evidence on the record incriminating the petitioner vis-a-vis kidnapping, Zina-bil-jabr and murder. The record shows that the only incriminating evidence produced by the prosecution was that the petitioner had allegedly removed the dead body of the deceased from a Baithak in his occupation as a tenant to a plot of land and had thrown the deadbody in that plot within the view of some members of the complainant party. We have found the said allegation leveled against the petitioner to be fantastic, to say the least. It was hardly believable that the petitioner had a whole night available to him to get rid of the deadbody of the deceased but he had not availed that opportunity and had chosen to come out of his Baithak with the deadbody and to throw the deadbody in a plot within the view of the members of the complainant party. At best the prosecution had come up with an allegation that the petitioner had committed an offence under Section 201, P.P.C. but we entertain serious doubts as to whether even the said provision of law was applicable to the case in hand because the act attributed to the petitioner did not amount to making any evidence disappear. Even if the allegation leveled by the prosecution in that respect is accepted as it is still that only amounted to creating of evidence or disclosure of evidence on the part of the petitioner rather than making any evidence disappear. No other evidence was available on the record incriminating the petitioner in any manner. In this view of the matter a conclusion is irresistible that the prosecution had failed to prove its case against the petitioner beyond reasonable doubt."
Muhammad Hussain Complainant P.W.1 stated regarding motive of the occurrence in his statement (examination-in-chief) as under:
"Motive behind the occurrence is that my younger brother made fire shot on his mother in law about one and half year prior to this occurrence and the case was registered against him but the compromise was affected, but accused persons Munir etc. had grudge in their mind due to this revenge, they murdered my younger brother Muhammad Aslam with their common intention."
Muhammad Munir appellant is real brother of Muhammad Qurban appellant, who stated in answer to Question No. 4 regarding motive of occurrence in his statement recorded under Section 342, Cr.P.C. as under:
"It is incorrect. I have no concern with mother-in-law of deceased. Even I do not know who she is. I also know nothing about any case in this regard. I have no relationship with the complainant or the deceased."
Likewise Sarfraz appellant stated in answer to Question No. 4 regarding motive of occurrence in his statement recorded under Section 342, Cr.P.C. as under:
"It is incorrect. I have no concern with mother-in-law of deceased. Even I do not know who she is. I also know nothing about any case in this regard. I have no relationship with the complainant or the deceased."
In view of the above, prosecution has failed to establish any relation of the appellants with mother-in-law of Muhammad Aslam alias Mahi Sajan deceased (mentioned in the motive story). Considering above, we are of the view that the prosecution has failed to prove the motive against the appellants.
16. Muhammad Hussain complainant P.W.1 stated in his statement that on 13.02.2012, Muhammad Qurban appellant made disclosure and led to the recovery of dagger wrapped in old clothes which was taken into possession through recovery memo. Ex.P.C. He further stated that at the same time, he disclosed and got recovered I.D. Card of Muhammad Aslam alias Mahi Sajan deceased which was also taken into possession through recovery memo. Ex.P.D. This witness had not stated that the dagger was blood stained at the time of recovery, hence, positive reports of Chemical Examiner Ex.P.N and Serologist Ex.P.O are not believable and are discarded. Reliance is placed on case reported as "Muhammad Attique vs. The State" (2011 SCMR 1378), in which Hon'ble Supreme Court of Pakistan has observed at page 1380 as under:
"It has not came in the evidence through the recovery witness that the churri secured from the possession of the appellant was stained with blood.”
17. Muhammad Hussain complainant P. W. 1 further stated in his statement (examination-in-chief) that on 13.02.2012 Muhammad Munir appellant during interrogation made disclosure and got recovered Kassi which was taken into possession through recovery memo. Ex.P.E.
18. Muhammad Hussain Complainant P.W.1 further stated in his statement (examination-in-chief) that on 13.02.2012 Sarfraz appellant during interrogation made disclosure and led to the recovery of mobile phone Nokia 1200 black colour which was taken into possession through recovery memo. Ex.P.F.
19. Considering the facts of this case, above mentioned recoveries are not believable.
20. In view of the above discussion, case of the prosecution is not free from doubt. It is settled principle of law that for giving benefit of doubt, it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in the prudent mind about the guilt of the accused, then they would be entitled to its benefit not as a matter of grace or concession, but as of right. Reliance is placed on case reported as "Muhammad Akram vs. The State" (2009 SCMR 230), in which Hon'ble Supreme Court of Pakistan has observed in Para No. 13 of Page 236 as under:
"The nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then he would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."
21. For the foregoing reasons, Criminal Appeal No. 1387 of 2013 filed by Muhammad Munir and Sarfraz appellants, Criminal Appeal No. 241/J of 2016 filed by Muhammad Qurban, Muhammad Munir and Sarfraz appellants are accepted and conviction and sentence of the appellants (Muhammad Munir, Muhammad Qurban and Sarfraz) awarded by the learned Trial Court through the impugned judgment are hereby set aside. Muhammad Munir, Muhammad Qurban and Sarfraz appellants are ordered to be acquitted in private complaint arising out of FIR No. 12 dated 11.01.2012 under-Sections 302, 148, 149, PPC, Police Station Chakbedi, Distt. Pakpattan. They are directed to be released forthwith if not required in any other case. Murder Reference No. 366 of 2013 is answered in NEGATIVE and death sentence of Muhammad Qurban appellant is NOT CONFIRMED.
22. In view of above discussion, PSLA No. 203 of 2013 filed by Muhammad Hussain complainant P.W. 1 against acquittal of Muhammad Siddique and Muhammad Amjad has no merits and is dismissed.
(A.A.K.) Appeals accepted
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