Chance Witness-- ----Testimony of--Apex Court held that testimony of chance witnesses require cautious scrutiny and was not to be accepted unless they give satisfactory explanation ...................

 PLJ 2022 Cr.C. 831 (DB)

Chance Witness--

----Testimony of--Apex Court held that testimony of chance witnesses require cautious scrutiny and was not to be accepted unless they give satisfactory explanation of presence at or near place of occurrence at relevant time, therefore, we hold that evidence of above two eye-witnesses is shaky in nature and cannot be relied upon for maintaining conviction/sentence of appellant.                   [P. 834] A

PLD 2021 SC 600.

Medical Evidence--

----Ocular account is in direct conflict with medical evidence--Moreover, medical evidence is only a supporting piece of evidence and relevant only if primary evidence i.e. ocular account inspires confidence which is not situation in this case.                                                                                 [P. 834] C

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

----S. 302(b)--Conviction and sentence--Challenge to--Qatl-e-amd--benefit of doubt--Chance witness--Medical evidence--Ocular account is in conflict with medical evidence--So far as alleged recovery of 30 bore pistol at instance of appellant is concerned same is immaterial because prosecution has failed to associate any independent witness of locality and, thus, mandatory provisions of Section 103, Cr.P.C. had flagrantly been violated in that regard--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--In instant case, prosecution remained failed to discharge its responsibility of proving case against appellant At 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--Appeal allowed.            [Pp. 834 & 835] B, D & E

2009 SCMR 230 and 2017 SCMR 898.

M/s. Sheraz Zaka, Muhammad Irfan Malik and Sheeba Qaiser, Advocates  for Appellant.

Mr. Muhammad Arshad Ali Farooqi, Deputy Prosecutor General for State.

Nemo for Complainant.

Date of hearing: 10.11.2021.

 PLJ 2022 Cr.C. 831 (DB)
[Lahore High Court, Lahore]
Present: Sadaqat Ali Khan and Shehram Sarwar Ch., JJ.
ASIF SHAHZAD--Appellant
versus
STATE--Respondent
Crl. A. No. 127161-J of 2017 & M.R No. 03 of 2018,
heard on 10.11.2021.

Judgment

Shehram Sarwar Ch., J.--Asif Shahzad (appellant) was tried by the learned Addl. Sessions Judge, Mandi Bahauddin in case FIR No. 313 dated 12.07.2017, offence under Sections 302, 449, 325 and 460, PPC, registered at Police Station Phalia District Mandi Bahauddin for the murder of Mst. Saba Shahzadi daughter of the complainant. Vide judgment dated 12.12.2017 passed by the learned trial Court, the appellant was convicted under Section 302(b), PPC and sentenced to death with a further direction to pay Rs. 5,00,000/-(rupees five lakh only) as compensation under Section 544-A, Cr.P.C. to the legal heirs of deceased and in default whereof to further undergo simple imprisonment for six months. He was further convicted under Section 325, PPC and sentenced to one year simple imprisonment alongwith fine of Rs. 10,000/- and in default whereof to further undergo simple imprisonment for one month. The appellant was also convicted under Section 449, PPC and sentenced to ten years R.I. alongwith fine of    Rs. 50,000/- and in default whereof to further undergo simple imprisonment for six months. The sentences awarded to the convict under Sections 325 and 449 PPG shall run concurrently and benefit of Section 382-B, Cr.P.C. was also extended to the appellant. Assailing the above convictions and sentences, the appellant has filed the appeal in hand whereas the learned trial Court has sent Murder Reference No. 03 of 2018 for confirmation or otherwise of the appellant’s sentence of death, as required under Section 374 of the Code of Criminal Procedure. Since both these matters have arisen out of the same judgment, therefore, the same are being decided together through this single judgment.

2. Prosecution story, as set out in the FIR (Exh.PA) registered on the application (Ex.PJ) of Shamim Akhtar, complainant (PW.9) is that she (complainant) was resident of Mouza Hailan and temporarily residing at Mohallah Kalupura, Gujrat. On 12.07.2017 she alongwith her son Husnain Ali and daughter-in-law Sidra Husnain came to Street Haji Zaman Phalia in order to see her daughter Mst. Saba Shahzadi. At about 8:20 p.m. complainant alongwith other family members, after having taken dinner, were talking with each other. In the meanwhile Asif Shahzad came to the house of Saba Shahzadi. Earlier, the said Asif Shahzad used to demand the hand of Saba Shahzadi which was refused by the complainant. On arrival, Asif Shahzad demanded the rishta but the complainant refused whereupon Asif Shahzad became infuriated and took out pistol from the fold of his shalwar and made a straight fire upon Saba Shahzadi which landed on her back. Complainant alongwith his son and daughter-in-law tried to overpower Asif Shahzad but he fired a shot on his own left side of abdomen and fell down on the ground. Mst. Saba Shahzadi succumbed to the injuries on the spot. On hearing hue and cry and report of firing the inhabitants of locality came there and took Asif Shahzad in injured condition to Hospital. Besides the complainant the occurrence was witnessed by Husnain Ali and Sidra Husnain. Motive behind the occurrence was refusal of rishta.

3. We have heard learned counsel for the appellant as well as learned Deputy Prosecutor General for the State at a considerable length and have also gone through the record very minutely.

4. The ocular account in this case consists of Mst. Shamim Akhtar, complainant (PW.9) and Mst. Sidra Husnain (PW.10). The presence of both these PWs on the spot at the time of incident is doubtful in nature because they did not receive even a scratch during the incident. They allegedly saw the incident from a close distance but we failed to understand that in the presence of both these PWs, who were closely related to Mst. Saba Shahzadi, how such tragedy with the deceased could happen without any intervention on their part to rescue them. The ocular account is in direct conflict with the medical evidence because in the FIR it was the case of complainant that Asif Shahzad (appellant) made a fire with pistol which landed on back of Mst. Saba Shahzadi (deceased) but Dr. Nazlee Saleem Wyne (PW.6), who conducted autopsy of the dead-body of deceased and prepared postmortem examination report (Exh.PE), noted two entry and two exit wounds on the person of deceased. It has been brought on record that Mst. Saba Shahzadi (deceased) was married with one Zulfiqar Ali with whom she had strained relations. In the FIR as well as before the learned trial Court it was the case of complainant that she alongwith other PWs went to the house of her daughter Mst. Saba Shahzadi (deceased) in order to see her where the incident took place but the Investigating Officer (PW.11) has stated in his cross examination that the house where the occurrence took place was owned by Zafar son of Ghulam Ali and the same has been obtained on rent by Asif Shahzad (appellant). We have further noted that both the witnesses of ocular account were chance PWs because the incident allegedly took place in the area of Phalia whereas both the witnesses of ocular account were resident of District Gujrat which fact has been endorsed by Syed Ghulam Raza S.I. (PW.11) by stating in his cross examination that during the investigation, it came on the record that witnesses of the occurrence were residents of District Gujrat. Before the learned trial Court both these PWs have not given any plausible reason for their presence on the spot at the time of incident. In the case of “Naveed Asghar and 2 others vs. The State” (PLD 2021 SC 600), the apex Court held that testimony of chance witnesses require cautious scrutiny and was not to be accepted unless they give satisfactory explanation of presence at or near the place of occurrence at the relevant time, therefore, we hold that the evidence of above two eye-witnesses is shaky in nature and cannot be relied upon for maintaining the conviction/sentence of the appellant.

5. Motive behind the occurrence was refusal of rishta because Asif Shahzad (appellant) demanded the rishta of Mst. Saba Shahzadi (deceased) which was refused by the complainant and due to the said reason the appellant committed the incident. It has been brought on record that Mst. Saba Shahzadi (deceased) was already married to Zulfiqar Ali, if it was so then there was no reason for the appellant to demand the hand of Mst. Saba Shazadi (deceased) for him. No independent witness qua motive was joined by police in investigation or produced by prosecution before the learned trial Court during trial. Therefore, we hold that prosecution has failed to substantiate motive against the appellant.

6. So far as alleged recovery of 30 bore pistol at the instance of appellant is concerned the same is immaterial because the prosecution has failed to associate any independent witness of the locality and, thus, the mandatory provisions of Section 103, Cr.P.C. had flagrantly been violated in that regard. Reliance may be placed on case law titled as “Muhammad Ismail and others vs. The State” (2017 SCMR 898). Moreover, the appellant allegedly got recovered the said pistol from the house of one Zafar cobbler which was not in exclusive possession of the appellant.

7. As far as medical evidence is concerned, it has been discussed in the preceding paragraph that the ocular account is in direct conflict with the medical evidence. Moreover, the medical evidence is only a supporting piece of evidence and relevant only if the

primary evidence i.e. ocular account inspires confidence which is not the situation in this case.

8. So far as the defence plea taken by the appellant in his statement under Section 342 of the 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.

9. We 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. Reliance is placed on case law titled as “Muhammad Akram versus The State” (2009 SCMR 230).

10. For the foregoing reasons, the appeal in hand is allowed, conviction and sentence awarded to the appellant vide judgment dated 12.12.2017 passed by the learned Addl. Sessions Judge Mandi Bahauddin are set aside and the appellant is acquitted of the charge levelled against him while extending him bengfit of doubt. Asif Shahzad, appellant is in jail. He shall be released forthwith if not required to be detained in any other case.

11. Murder Reference No. 03 of 2018 is answered in the NEGATIVE and the sentence of death awarded to Asif Shahzad (convict) is NOT CONFIRMED.

(A.A.K.)          Appeal allowed