PLJ 2022 Cr.C. (Note) 46
----S. 302(b)--Conviction and sentence--Challenge to--Benefit of doubt--According to FIR occurrence took place in between night whereas FIR was registered at 9.10 a.m. on written application moved by complainant PW-10 (real mother of deceased) with an unexplained delay of one day which itself creates doubt in prosecution story--It takes ¾ hours to reach Sukheki Chowki from her village Kot
Proya--“Garhi Ghos” (where house of occurrence is situated) is almost in center of two--They were chance witnesses but have failed to establish their presence at time of occurrence at place of occurrence with their stated reasons--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 he would be entitled to its benefit not as a matter of grace or concession, but as of right--Appeal allowed.
[Para 13 & 16] A, B & C
2014 SCMR 1698, 2002 SCMR 1343 and 2009 SCMR 230.
Mr. Tayyab Shakoor Rana, Advocate for Appellant.
Respondents/Complainant in person.
Mr. Munir Ahmad Sial, DPG for State.
Date of hearing: 31.01.2018
PLJ 2022 Cr.C. (Note) 46
[Lahore High Court, Lahore]
Present: Sadaqat Ali Khan and Shehram Sarwar ch., JJ.
ZAIGHAM ALI--Appellant
versus
STATE--Respondent
Crl. A. No. 978 & M.R No. 187 of 2015, heard on 31.1.2018.
Judgment
Sadaqat Ali Khan, J.--This single judgment shall dispose of Criminal Appeal No. 978 of 2015 filed by Zaigham Ali appellant (against his conviction) and Murder Reference No. 187 of 2015 sent by the learned trial Court for confirmation of his death sentence or otherwise as the above mentioned matters have arisen out of the same judgment dated 12.05.2015 passed by learned Sessions Judge, Hafizabad according to which the appellant was convicted under Section 302(b), PPC as Tazir and sentenced to death in case FIR No. 953 dated 10.12.2012 under Section 302, 148, 149, PPC P.S. City U-5/22HFD District Hafizabad, whereas his co-accused namely Azhar Ali, Sana Ullah and Qamar have been acquitted.
2. The facts of the case have been stated by Mst. Mst. Bashiran Bibi complainant P.W. 10 (real mother of Tanvir Ahmad deceased) in his statement (examination-in-chief) before the learned trial Court which is hereby reproduced for narration of the facts:
“Stated on oath that on 08.12.2012, Tanveer made a phone call and I alongwith Abida, Shahida and Shabana came to Garhi Ghos. It was midnight, accused Zaigham present in the Court came to the house of Sana Ullah where we were sitting, Abbas also came there. Zaigham made firing. Then Abbas made firing. The fires hit Tanveer my son. Fire of Zaigham accused hit Tanveer on his chest and of Abbas accused hit him on his chest. Accused persons Zahid, Farooq, Azhar, Ansar and Qaiser were also with the accused persons. They also made firing which my son on his whole body. PW Abida made a call to rescue. My son was shifted to
I submitted a supplementary statement wherein I nominated the accused persons Qamar and Sana Ullah present in the Court.”
3. After registration of the case, investigation started and on completion of the same report under Section 173, Cr.P.C. was submitted in the trial Court.
4. Learned trial Court after observing legal formalities provided under Criminal Procedure Code framed the charge on 27.08.2014 against Zaigham Ali and co-accused (since acquitted) under Sections 302, 148, 149, PPC to which they pleaded not guilty and prosecution evidence was summoned.
5. The prosecution produced following witnesses during the trial before the learned trial Court:-
Muhammad Asif | P.W.1 |
Muhammad Ismail | P.W.2 |
Muhammad Waris S.I | P.W.3 |
Imtiaz Ahmad | P.W.4 |
Qaiser Zulfiqar | P.W.5 |
Bilal Ahmad Bhatti Draftsman | P.W.6 |
Muhammad Afzal | P.W.7 |
Nasrullah Khan S.I. | P.W.8 |
Dr. Basharat Rasool | P.W.9 |
Mst. Bashir Bibi (Bashiran Bibi) (complainant) | P.W.10 |
Mst. Abida Bashir | P.W.11 |
Raza Haider | P.W.12 |
Muhammad Arshad S.I. | P.W.13 |
Umar Farooq S.I. | P.W.14 |
whereas P.Ws. namely Furrukh Hussain 241/C, Usman Zakariya 954/C, Shabana Naz, Shahida Bashir and Qaiser Abbas were given up by the prosecution being unnecessary and after tendering certain documents i.e. Exh-PA to Exh.PDD closed its evidence.
6. Medical evidence was furnished by Basharat Rasool P.W.9, who conducted post-mortem examination on f the dead body of Tanvir Ahmad deceased on 10.12.2014 and observed as under:--
“INJURIES
1. Fire-arm wound of entry 1½ x 1½ cm. On the right chest upper part going deep corresponding with wound of exit 2 cm x 1½ cm on the top and outer side of right shoulder.
OPINION
Time between injury and death 02 to 04 hours and between death and post-mortem within 24 hours.
FINAL OPINION.
Death in my opinion is due to haeomarhage and shock caused by fire-arm Injuries all are antimotem and sufficient for death collectively and Injury No. 01 individually. Operation notes were not provided from south surgical ward of
7. On the other hand, statements of the appellant and his
co-accused (since acquitted) were recorded under Section 342, Cr.P.C. in which they refuted the allegations leveled against them by the prosecution. The appellant has neither opted to appear as witness under Section 340(2), Cr.P.C. nor produced any oral defence evidence. Certain documents i.e. Ex.D.A. to Ex.D.E were produced by the appellant during documentary defence evidence. In reply to the question “Why this case against you and why the PWs deposed against you? Zaigham Ali appellant replied as under:
“Sana Ullah my co-accused is my relative. He was not happy over the marriage by Tanvir Ahmad, deceased with the daughter of his second wife. Tanvir Ahmad, deceased, was a proclaimed offender in number of cases of heinous nature, like murder. He was an outlaw in the eye of law. I tender photocopy of F.I.R No. 25/12 under Section 302/34, PPC, Police Station Ahmad Nagar District Gujranwala as Mark-DB, F.I.R No. 357/ 11, Police Station Chowk Azam District Layyah, under Section 302/324/148/149, Mark-DC. F.I.R. No. 412/99 Police Station City Wazirabad, District Gujranwala under Section 302/148/149, PPC, Mark-DD, F.I.R No. 806/10 Police Station Aroop, District Gujranwala, under Section 302/148/149, PPC, Mark-DE in this respect. Tanvir Ahmad, deceased, had a number of enemies around him. I have been falsely Involved in this case, by fabricating a false story by the complainant. I have no connection, what-so-ever, with the murder of Tanvir Ahmad, deceased. It is an unseen occurrence. Tanvir Ahmad deceased was murdered by some unknown persons at some unknown place. No such occurrence took place at the house of Sana Ullah the co-accused, the alleged place of occurrence. The PWs are inter-se related with the deceased, therefore, they have deposed falsely against me. The I.O. did not record my first plea, correctly.”
8. After conclusion of the trial, learned trial Court, while acquitting co-accused mentioned above, convicted the appellant with above stated sentence. Hence this appeal.
9. Learned counsel for the appellant has contended that:--
i. the judgment of the trial Court dated 12.05.2015 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 appellant beyond shadow of doubt and the learned trial Court wrongly convicted him in surmises and conjectures;
iv. and lastly submitted for acceptance of the instant appeal and acquittal of the appellant.
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 appellant with solid evidence and prayed for the dismissal of the present appeal.
11. We have heard the learned counsel for the appellant as well as learned DPG and “perused the record.
12. The detail of prosecution case has already 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 in between night of 8/9.12.2012 whereas FIR was registered on 10.12.2012 at 9.10 a.m. on the written application Exh.PA moved by Bashiran Bibi complainant PW-10 (real mother of Tanveer Ahmad deceased) with an unexplained delay of one day which itself creates doubt in the prosecution story. Place of occurrence is the house of Sana Ullah
co-accused (since acquitted) situated at Gharri Ghous Hafiz Abad (Tanveer Ahmad deceased was his son in law (Damaad). Prosecution has introduced following accused in this case:
1. Azhar Ali 2. 3. Qamar | These three accused have been acquitted through the impugned judgment and complainant/ State has not filed any appeal against their acquittal as stated by learned DPG. |
1. Zahid Amin, 2. Ghulam Abbas, 3. Qaiser Mahmood 4. Ansar Iqbal | These four accused have been declared P.Os and have not been arrested till today as stated by learned DPG. |
Zaigham Ali | Appellant |
Mst. Bashiran Bibi complainant PW-10 (real mother of Tanveer Ahmad deceased) and Mst. Abida Bashir PW-11 (real sister of Tanveer Ahmad deceased) claim themselves to be the eye-witnesses of the occurrence. Mst. Bashiran Bibi complainant PW-10 is resident of Kot Proya, Tehsil Wazirabad, District Gujranwala whereas her daughter Mst. Abida Bashir is resident of Atlay Ghulam, Tehsil Pindi Bhattian, District Hafizabad (being married was residing with her husband Abdul Qudoos). Both these eye-witnesses are not the residents of the village Gharri Ghous Hafizabad, where house of occurrence (house of Sana Ullah co-accused since acquitted) is situated. Mst. Bashiran Bibi complainant PW-10 stated in her cross-examination that Mst. Abida Bashir PW-11 is married at Sukheki Chowki. It takes ¾ hours to reach Sukheki Chowki from her village Kot Proya. “Garhi Ghos” (where house of occurrence is situated) is almost in center of the two. They were chance witnesses but have failed to establish their presence at the time of occurrence at the place of occurrence with their stated reasons. Reliance is placed on case titled “Muhammad Rafique v. The State” (2014 SCMR 1698) in which August Supreme Court of Pakistan has observed at pages 1700 and 1701 as under:
“After hearing the learned counsel for the parties and going through the record we have straightaway observed that the ocular account of the incident in issue had been furnished before the learned trial Court by two eye-witnesses namely Falak Sher complainant (PW-6) and Abdul Razzaq (PW-7) who were both related and chance witnesses. Falak Sher complainant (PW-6) was the father of Mukhtar Ahmed deceased and Abdul Razzaq (PW-7) was a brother-in-law of the said deceased. Both the said eye-witnesses had claimed that although they lived about one kilometer away from the scene of the crime yet they were present near the spot because they were working as labourers at a project regarding construction of the banks of Kanda Minor at the relevant time which project was being undertaken quite close to the place of occurrence. Before the learned trial Court the said eye-witnesses had utterly failed to establish the stated reason for their presence near the place of occurrence at the relevant time masmuch as they had failed to give any detail of the project in issue and they did not even know the name of the contractor who had hired them as labourers for the purpose. We have noticed that although in the rough site-plan of the place of occurrence prepared by the Investigating Officer an under construction project and the Kanda Minor had been shown near the place of occurrence yet in the formal site-plan of the place of occurrence prepared by a Patwari no such Kanda Minor or the under construction project were shown anywhere close to the place of occurrence. It is an admitted position that no blood-stained earth had been collected from the stated place of occurrence and also that the F.I.R. had been lodged with a noticeable delay and post-mortem examination of the deadbody had also been conducted with significant delay in the following afternoon. All these factors had pointed towards a real possibility that the murder in issue had remained unwitnessed and time had been consumed by the local police in procuring and planting eye-witnesses and in cooking up a story for the prosecution. As if this were not enough the record of the case shows that the related and chance eye-witnesses produced by the prosecution had failed to receive any independent corroboration or support.”
Reliance is also placed on the case titled “Ghulam Farid vs. Ghulam Mustafa and another” (2002 SCMR 1343) wherein the Hon’ble Supreme Court of Pakistan has observed at page 1345 as under:
“4. The learned Judges of the High Court came to the conclusion that the evidence of the present petitioner/ complainant who appeared as P.W.2 and Muhammad Hussain P.W.3 who claimed to have witnessed the occurrence is not trustworthy as their presence on the spot was highly doubtful because they were not residents of the area where the occurrence took place.”
14. Mst. Bashiran Bibi complainant PW-10 while making statement (examination-in-chief) before the learned trial Court did not utter even a single word regarding motive of the occurrence.
15. Muhammad Arshad S.I. PW-13 stated in his statement (examination-in-chief) that on 02.01.2013 he arrested Zaigham appellant who on 11.01.2013 during interrogation disclosed and got recovered a pistol .30-bore P1 from the house of one Imtiaz Ahmad which place is not in exclusive possession of Zaigham appellant, hence this recovery is not believable. Even otherwise, this recovery has become inconsequential as stated by learned DPG that no crime empty has been recovered from the place of occurrence.
16. In view of the above discussion, we entertain serious doubt in our minds regarding participation of the appellant in the present case. 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 he 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-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 its benefit not as a matter of grace of concession, but as a matter of right.”
17. For the foregoing reasons, this appeal is allowed. Conviction and sentence of Zaigham appellant awarded by the trial Court through impugned judgment are hereby set aside. Zaigham appellant is acquitted of the charge. He is directed to be released forthwith if not required in any other case. M.R is answered in NEGATIVE and death sentence of Zaigham appellant is not CONFIRMED.
18. Before parting with this judgment, it is observed that Zahid Amin, Ghulam Abbas, Qaiser Mahmood and Ansar Iqbal co-accused of the appellant are still P.Os, their case shall be decided by the learned trial Court on its own merits without being influenced from this judgment on their arrest.
(A.A.K.) Appeal allowed
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