PLJ 2022 Cr.C. 851 (DB)
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conviction and sentence--Challenge to--Benefit of doubt--Qatl-e-amd--Medical evidence--Held: It is settled law that if any party withholds best piece of evidence, then it can fairly be presumed that such party has some sinister motive behind it--Besides, it will create impression that had such witnesses been produced into witness box, they might have not supported prosecution case--Adverting to other pieces of evidence relied by prosecution against appellant, i.e. medical evidence, recovery of pistol .30 bore coupled with forensic report and motive, we are of view that these pieces of evidence, being corroborative in nature and not of charge, do not connect appellant with murder of deceased in absence of any trustworthy, confidence inspiring and reliable direct evidence--Prosecution has failed to prove guilt of appellant beyond shadow of doubt--It is firmly settled by Hon’ble Supreme Court of Pakistan that not many circumstances creating doubt in prosecution story are required rather a single circumstance creating doubt is enough to acquit accused--Appeal accepted. [Pp. 859 & 860] A, B & D
2006 SCMR 1846, 2010 SCMR 385, 2009 SCMR 230 and
2019 SCMR 129.
Medical evidence--
----So far as medical evidence is concerned, it is well settled by now that medical evidence may confirm ocular account with regard to seat, nature and duration of injuries and kind of weapon used for causing such injuries but it cannot connect accused with commission of crime. [P. 859] C
PLD 2009 SC 53, 2009 SCMR 1410, 2009 SCMR 916.
Benefit of doubt--
----In case of doubt, benefit thereof must accrue in favour of accused as matter of right and not of grace. [P. 860] E
M/s. Muhammad Ahsan Bhoon and Irfan Riaz Gondal, Advocates assisted by Mrs.Nighat Saeed Mughal, Advocate (defence counsel) for Appellant
Mr.Usman Iqbal, Deputy Prosecutor General for State.
Mr. Ghulam Rasool Bhatti, Advocate for Complainant.
Date of Hearing: 24.5.2021.
PLJ 2022 Cr.C. 851 (DB)
[Lahore High Court, Lahore]
Present: Raja Shahid Mehmood Abbasi and Shakil Ahmed, JJ
versus
STATE--Respondent
Crl. A. No. 505-J of 2018 & M.R. No. 69 of 2017, decided on 24.5.2021.
Judgment
Raja Shahid Mehmood Abbasi, J.--Through this single judgment, we intend to decide Criminal Appeal No. 505-J of 2018 filed by Qaiser appellant against his conviction and sentence along with Murder Reference No. 69 of 2017 transmitted by learned trial Court for confirmation or otherwise of death sentence of Qaiser appellant being originated from the judgment dated 31.03.2017 passed by learned Additional Sessions Judge, Chichawatni in a private complaint connected with case FIR No. 295 dated 05.07.2016, registered under Sections 302, 34, PPC, at Police Station Kassowal, whereby the appellant was convicted under Section 302(b), PPC and sentenced to death with direction to pay compensation of Rs. 200,000/- to the legal heirs of Muhammad Waseem deceased or in default thereof to undergo six-months S.I.
2. The brief history of the case narrated by Shoukat Ali complainant in FIR No. 295/16 (Ex.PA/1) is that on 05.07.2016 at about 09:00 p.m. he along with nephews Muhammad Waseem and Tasleem and one Muhammad Sajjad were going to Jamia Masjid Ahl-e-Sunnat situated in main Chowk of Chak No. l/14-L to offer Isha prayer, when reached in the Chowk, they were taken to surprise by Muhammad Yahya, Qaiser, Nazim and Mirza Zahoor Ahmad, all equipped with 30 bore pistols, who emerged there from their houses. Muhammad Yahya raised lalkara to teach them (complainant party) a lesson for forbidding the accused from standing in the Chowk, upon which Muhammad Waseem rushed to take shelter inside the Masjid, but Mirza Zahoor and Nazim caught hold of him and dragged him to the Chowk, where Qaiser made a fire shot targeting right flank of Muhammad Waseem, who, after sustaining the injury, fell down on the ground. The accused resorted to firing with their respective weapons and while extending murder threats decamped from the spot. The complainant maintained that he and the witnesses had seen the whole incident in the electric light installed outside the Masjid. They attended Muhammad Waseem, who succumbed to the injury while being shifted to THQ Hospital, Chichawatni. The complainant further maintained that on 27th of Ramadan-ul-Mubarak at about 09:00 p.m. an announcement was made in the Masjid that the male persons would not stand in the Chowk of Masjid because the females had to come to Masjid for prayer, but the accused while disregarding the announcement stood in the Chowk and they were reprimanded by the complainant party, due to which they were annoyed and an altercation had also taken place between them. Due to intervention of respectable of the locality, the matter was patched up then and there, but the accused kept the grudge in their mind and ultimately committed the murder of Muhammad Waseem.
3. During investigation, accused Nazim was declared innocent and accused Zahoor though found involved by the investigating officer but with different role. Feeling dissatisfied with the police investigation, Shoukat Ali complainant (PW1) filed private complaint (Ex.PB). Learned trial Court, after observing all the pre-trial codal formalities, summoned the accused and after procuring their attendance, framed charge against them to which they pleaded not guilty and claimed trial.
4. The prosecution in order to prove its case produced as many as eight PWs and two CWs in all out of whom Shoukat Ali complainant (PW-1) and Tasleem (PW2) furnished eye witness account of the prosecution case; Muhammad Irfan (PW3) identified the dead body of the deceased at the time of postmortem examination; Muhammad Saeed Akhtar (PW4) prepared scaled site plan (Ex.PF); Amjad Ali constable (PW5) shifted dead body of the deceased to mortuary and also testified about the recoveries effected in this case; Gulzar Ahmad, head constable, (PW6) chalked out FIR (Ex.PA/1) and also kept case property in Malkhana, which was subsequently handed over by him to the investigating officer who further handed over the same to Manzoor Ahmad, head constable (PW7) for depositing the same with the Punjab Forensic Science Agency. Dr. Muhammad Imran Anjum (PW8) conducted autopsy on the dead body of Muhammad Waseem deceased vide postmortem report (Ex.PJ) and noted following injury:
Injury No. 1:
Firearm punctured wound measuring 1½ cm x 1½ cm. Inverted margin on the right lateral side of abdomen. 3 cm from the mid of right iliac crest, 16 cm from umbilicus. Corresponding cuts were present on the shirt i.e. entry wound. Bullet was recovered from the body (abdomen).
Opinion:
Firearm injury damaged the internal abdominal organs and viceras (blood vessels) leading to hemorrhage shock, which is sufficient to cause death in ordinary course of nature.
After tendering in evidence the reports (Ex.PM and Ex.PN) of the Punjab Forensic Science Agency, the prosecution closed its evidence. Thereafter, Abid Sagheer Inspector was examined as CW1, who stated about various steps taken by him during the investigation of the case, whereas Masood Ahmad S.I. was examined as CW2, who stated that he had recorded the complaint (Ex.PA) of Muhammad Shoukat complainant (PW1).
5. The accused in their statements under Section 342, Cr.P.C. refuted the allegations leveled by the prosecution against them and professed their innocence. They neither opted to make statements on oath as provided under Section 340(2), Cr.P.C. nor produced any defence evidence in disproof of the allegation leveled against them. While answering the questions, “Why this case was registered against you?” and “Why all the PWs have deposed against you?” Qaiser appellant stated as under:
“It is a false case. This false case was registered against me and my co-accused due to enmity, party friction and political rivalry.”
“All the PWs are closely related inter se and inimical towards me and my co-accused. I was not present at the time and place of occurrence. The complainant and the PWs were also not present at the time and place of occurrence. The occurrence did not take place in the manner as stated by the complainant and PWs. In fact, it was chand raat and the present occurrence took place in dark hours of night. There was a cross firing in between Fahid Rajpoot group belonging to complainant party and the relatives of Shahzad alias Kala. The deceased Muhammad Waseem had received firearms with the stray bullet, I and my co-accused were involved in this case due to enmity, political rivalry and party fraction and I adopted the statement of my co-accused Muhammad Yahya regarding this question”
6. The learned trial Court vide judgment dated 31.03.2017 found Qaiser appellant guilty, convicted and sentenced him as mentioned above, however, acquitted his co-accused Muhammad Yahya, Mirza Zahoor Ahmed and Nazim of the charge through the same judgment by giving them the benefit of doubt, hence, the criminal appeal and connected murder reference before us.
7. The learned counsel appearing on behalf of the appellant contended that the appellant is absolutely innocent and he has been maliciously involved in this case by the complainant; that the matter was reported to the police after due deliberation and consultation and the prosecution story regarding the mode and manner of incident is highly contradictory. Goes on to maintain that the prosecution has miserably failed to substantiate the factum of accusation against the appellant by producing worthy of credence evidence which aspect of the matter went unnoticed causing serious prejudice against the appellant; that it was indeed an un-witnessed incident, whereby Muhammad Waseem deceased was hit by a stray bullet during cross-firing between Fahid Rajpoot group belonging to complainant party and the relatives of Shahzad alias Kala, but the complainant in league with other prosecution witnesses concocted a false and fabricated story only to implicate the appellant and his co-accused in this frivolous case; that even the medical evidence was not in consonance with the version of the prosecution which aspect of the matter has not been dilated upon properly; that there are various glaring contradictions in the statements of prosecution witnesses which are not noticed by learned trial Court resulting into serious miscarriage of justice against the appellant; that the recovery of weapon allegedly effected from the appellant does not support the prosecution case in the light of negative forensic report; that the prosecution has also failed to prove the motive part of its case through any cogent and convincing evidence; that the prosecution witnesses exaggerated during the trial making the prosecution evidence highly doubtful, hence, this fact alone is( sufficient to infer that the occurrence did not take place in the manner as alleged by them; that three co-accused of the appellant have been acquitted of the charge on the basis of same evidence, therefore, he also deserves the same treatment under the law. Finally it has been prayed that while accepting his appeal, the appellant may be acquitted of the charge and murder reference may be answered in negative.
8. Conversely, learned Deputy Prosecutor General assisted by learned counsel for the complainant vehemently opposed the contentions raised by learned counsel for the appellant and inter alia maintained that the appellant is named in FIR with specific allegation that he had inflicted the fatal fire shot and committed the murder of Muhammad Waseem deceased; that the role attributed to the appellant by the eye witnesses is fully established through the medical evidence; that the case of prosecution against the present appellant is entirely different from that of his acquitted co-accused and to his extent, the prosecution has produced overwhelming evidence that unambiguously connected him with the murder of ill-fated nephew of the complainant; that the prosecution has also proved the motive part of the occurrence by producing independent corroborative evidence and its case stood proved beyond any shadow of reasonable doubt. Finally, it has been prayed that the appeal may be dismissed, murder reference may be answered in affirmative and death sentence may be confirmed.
9. We have considered the arguments advanced by learned counsel for the parties as well as learned Deputy Prosecutor General and have gone through the record with their assistance.
10. According to FIR (Ex.PA/1), the incident in which Muhammad Waseem, paternal nephew of Shoukat Ali complainant (PW1) and real brother of Tasleem (PW2,) was gunned down on 05.07.2016 at about 09:00 p.m. and purportedly the matter was brought into the notice of the police by Shoukat Ali complainant (PW1) on the same night at 10:15 p.m. when he (PW1) along with the dead body of Muhammad Waseem deceased appeared before Masood Ahmad S.I. (CW2) at Sanpal Chowk Kassowal and got recorded his statement (Ex.PA), which, according to the prosecution, was transform into FIR (Ex.PA/1) at 10:30 p.m. Learned counsel for the complainant has forcefully contended that it was a case of promptly lodged crime report but this contention has been subverted by none other than Shoukat Ali complainant (PW1) himself as he has categorically stated during cross-examination that he reached at THQ Hospital Chichawatni at about 10:00 p.m. where the doctor had shown him the firearm injuries on the person of deceased; that the doctor had also informed him that the deceased had received firearm injuries and that he had seen the said injuries at that time. He (PW1) further destructively stated in his cross-examination that he neither remember nor can deny as to whether police recorded his statement after postmortem examination on the dead body of the deceased, which, according to him, was conducted at about 02/03:00 a.m. (night). This shows that the daily-diary was withheld and an ante-time crime report was registered only to show promptitude in lodging FIR (Ex.PA/1), but actually neither Masood Ahmad S.I. (CW2) had recorded the alleged statement (Ex.PA) of Shoukat Ali complainant (PW1) while being present at Sanpal Chowk Kassowal at about 10:15 p.m. nor the FIR (Ex.PA/1) was chalked out at the time mentioned therein, therefore, we are quite convinced that whatever was stated in FIR (Ex.PA/1) was the aftermath of preliminary inquiry, deliberation and consultation. The tendency of showing promptitude in lodging FIR (Ex.PA/1) on the part of the police also indicates about the non-availability of eye witnesses at the scene of occurrence at the relevant time as held by the Hon’ble Supreme Court of Pakistan in the cases of “Irshad Ahmed v. The Stated (2011 SCMR 1190) and “Nazeer Ahmed v. The State” (2016 SCMR 1628).
11. Next in the line is the most important aspect of the case in the light of respective opposing contentions of the parties is that according to the prosecution, Shoukat Ali complainant (PW1) along with Tasleem (PW2) and Muhammad Sajjad were present at the spot at the time of incident and they had seen the tragedy with their own eyes, but the defence consistently refuted this stance of the prosecution witnesses while maintaining that they were not available at the place of occurrence, in which Muhammad Waseem deceased became a victim of stray bullet during cross-firing between Fahid Rajpoot group belonging to complainant party and the relatives of Shahzad alias Kala. To resolve this controversy, we have analyzed the statements of Shoukat Ali complainant (PW1) and Tasleem (PW2) and observed that both of them claimed to be present at the spot and to have seen the incidence and they further claimed that after the incident they were shifting the deceased, while in injured condition, to the hospital, but he succumbed to the injuries on the way. To further clarify Tasleem (PW2) stated that Muhammad Waseem deceased, then injured, was shifted to hospital by Shoukat Ali complainant (PW1) alongwith others through a carry van, but Dr. Muhammad Imran (PW8), in his examination in chief stated that the dead body of Muhammad Waseem deceased was brought by Rescue 1122, which not only belied the prosecution version regarding shifting of the deceased to the hospital by Shoukat Ali complainant (PW1), but also conclusively pointed out towards non-availability of Shoukat Ali complainant (PW1) and Tasleem (PW2) at the spot at the relevant time. In the preceding paragraph, Shoukat Ali (PW1) has been held to be a false witness with regard to his version of coming across Masood Ahmad S.I. (CW2) at Sanpal Chowk Kassowal, where complaint (Ex.PA) was allegedly recorded at 10:15 p.m. Though he (PW1) has stated about the availability of source of light in FIR (Ex.PA/1) which is further reflected in the scaled site plan (Ex.PF), but while appearing in the witness box, he did not utter a single word in this regard. Furthermore, the investigating officer had also not taken into possession any source of light available at the spot. Much interestingly Tasleem (PW2) stated that the accused were identified in the light of a crescent moon as well as bulbs installed in the surroundings of the crime scene, but the prosecution side has not denied that there was no chance of availability of crescent moon at about 09:00 p.m. during the days of incident. In this way, the prosecution witnesses were not even able to prove beyond the shadow of doubt that any source of light was available at the place of occurrence, which, according to their own version had taken place at about 09:00 p.m. (night). There is another circumstance creating further doubt about the presence of Shoukat Ali complainant (PW1) and Tasleem (PW2) at the spot that according to them, the deceased was dragged by appellant’s co-accused from the Masjid to the place where he was gunned down, but it is an admitted position of the case that no marks of dragging were observed by the doctor at the time of conducting autopsy on the dead body of the deceased. We have also observed with serious concerns that despite the incident had taken place in the Chowk of the village and according to prosecution’s own version, it was a time of Isha prayer and many persons from the surroundings were gathered there, the prosecution did not bother to produce before the investigating officer any person from the locality including the Imam Masjid or the Moazan or any other person who had come to the Masjid to offer Isha prayer. Similarly, no official from Rescue 1122 was associated with the investigation of the case. Even none of them was brought in the witness box to testify whatever had actually happened at the spot rather prosecution preferred to rely on the statements of Shoukat Ali complainant (PW1) and Tasleem (PW2), who were miserably failed to prove their own presence. In the circumstances stated above, we are of the view that abandoning of actual witnesses of tragedy, who were available in the surroundings of the crime scene including the Imam Masjid, Moazanas as well as the officials of Rescue 1122, who had actually shifted the dead body of the deceased to the hospital obviously leads to adverse inference in terms of Article 129-(g) of the Qanun-e-Shahadat Order, 1984. It is settled law that if any party withholds the best piece of evidence, then it can fairly be presumed that such party has some sinister motive behind it. Besides, it will create impression that had such witnesses been produced into witness box, they might have not supported the prosecution case. Reliance in this respect is placed on the cases of “Lal Khan v. The State” (2006 SCMR 1846) and “Muhammad Rafiq and others v. The State” (2010 SCMR 385). In the backdrop of above circumstances, we are persuaded to hold that Shoukat Ali complainant (PW1) and Tasleem (PW2) are not trustworthy, confidence inspiring or reliable witnesses, as such no implicit reliance can be placed upon them.
brother of co-accused Zahoor (since acquitted). These shortcomings, discrepancies and contradictions are sufficient to hold that the prosecution could not prove the motive part its case beyond the shadow of doubt.
14. Murder Reference is answered in negative and death sentence is not confirmed.
(A.A.K.) Appeal accepted
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