PLJ 2022 Cr.C. 793 (DB)
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conviction and sentence--Challenge to--Benefit of doubt--Qatl-i-amd-Conflict between ocular account and medical evidence--Chance witness--Testimony of--Motive--Therefore, possibility exists that it was an unwitnessed murder and time had been consumed by police in procuring and planting eye-witnesses and in’ cooking up a story for prosecution--Prosecution could not prove its case against appellant beyond any shadow of doubt--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--Further held: It 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. [Pp. 797, 798 & 799] A, C & D
2016 SCMR 1628 and 2009 SCMR 230.
Chance witness--
----Testimony of--Testimony of a chance witness ordinarily is not accepted unless justifiable reasons are shown to establish his presence at crime scene at relevant time--In normal course, presumption under law would operate about his absence from crime spot--The testimony of chance witness may be relied upon, provided some convincing explanations appealing to a prudent mind for his presence at crime spot are put forth, when occurrence took place otherwise his testimony would fall within category of suspect evidence and cannot be accepted without a pinch of salt. [P. 798] B
2015 SCMR 1142 and 2016 SCMR 2021.
Khawaja Umaiz, Advocate appointed as Defence Counsel at State expense for Appellant
Mr. Tariq Javed, Additional Prosecutor General for State.
Nemo for Complainant.
Date of hearing: 4.6.2020.
PLJ 2022 Cr.C. 793 (DB)
[Lahore High Court, Lahore]
Present: Shehram Sarwar Ch. and Sadiq Mahmud Khurram, JJ.
versus
STATE, etc.--Respondents
Crl. A. No. 55728-J and M.R. No. 185 of 2017, heard on 4.6.2020.
Judgment
Shehram Sarwar Ch., J.--Ijaz Ali (appellant) was tried by the learned Addl. Sessions Judge,
2. It is pertinent to mention here that earlier the instant case was decided by the learned trial Court vide judgment dated 29.02.2012 and on filing Crl. Appeal No. 140-J/2012 by the appellant before this Court, the case was remanded to the learned trial Court vide judgment dated 10.01.2017 with the direction to frame the charge afresh and decide the same within a period of two months after giving opportunity of hearing to both the sides.
3. Prosecution story, as set out in the FIR (Ex.PA/1) registered on the statement (Ex.PD) of Umar Farooq, complainant (PW.4) is that about 8/9 months back, Mst. Hajran Bibi sister of complainant aged about 20/21 years was married to Ijaz Ali (appellant). On 17.03.2010 at morning time, sister of complainant telephonically informed him that her husband (appellant) usurped her ornaments and whenever she asked about the same, the appellant used to quarrel with her. Having received that information, the complainant alongwith his paternal uncle Muhammad Ashraf and maternal uncle Iftikhar Ahmad reached the house of Mst. Hajran Bibi at around 1.00 p.m. Mst. Hajran Bibi and her husband Ijaz Ahmad were present at home. As soon as she started telling the matter of ornaments to the complainant party, Ijaz Ahmad became furious, picked up chhurri lying nearby and gave its blow on the chest of Mst. Hajran Bibi, who fell down in injured condition. The complainant party attended Mst. Hajran Bibi but she succumbed to the injuries on the spot. The complainant side tried to apprehend the appellant but he succeeded to flee away. Motive behind the occurrence as alleged in the FIR was that the appellant had sold gold ornaments and a dispute arose between the spouses and on telling the same by Mst. Hajran Bibi to the complainant side, the appellant stabbed her to death.
4. After completion of investigation, report under Section 173, Code of Criminal Procedure was submitted in this case. The appellant was summoned by the learned Addl. Sessions Judge,
5. Learned counsel for the appellant, in support of this appeal, contends that the appellant has falsely been implicated in this case; that the matter was reported to the police with due deliberation and consultation on the part of the complainant; that the postmortem examination of the dead body of deceased was also conducted with a considerable delay; that Umar Farooq, complainant (PW.4) and Muhammad Ashraf (PW.5), alleged witnesses of ocular account have not given any plausible reason for their presence on the spot at relevant time; that the said eye-witnesses were neither residents of the place of incident nor have any place of business over there and were chance witnesses; that ocular account is in direct conflict with the medical evidence; that a vague motive was set up by the prosecution which has not been proved; that the alleged recovery of chhurri (P.5) at the instance of the appellant is inconsequential; that the version of the appellant is more probable, convincing and even gets full support from prosecution’s own case; that viewing from all angles, the prosecution case is doubtful in nature and the appellant is entitled to acquittal.
6. On the other hand, learned Addl. Prosecutor General for the State vehemently opposes this appeal on the grounds that the matter was reported to the police with promptitude; that Umar Farooq, complainant (PW.4) and Muhammad Ashraf (PW.5), who witnessed the incident, have reasonably explained their presence on the spot at relevant time which is quite natural and probable; that the eye-witnesses have no enmity with the appellant to falsely implicate him in this case; that a specific motive was set out in the FIR. which has been proved against the appellant; that ocular account is fully supported by medical evidence; that the prosecution case is corroborated by the recovery of chhurri (P.5) at the instance of the appellant and the reports of Chemical Examiner (Ex.PL) and Serologist (Ex.PM); that the prosecution has successfully brought home guilt against the appellant to the hilt and there is no merit in this appeal.
7. We have heard arguments of learned counsel for the appellant as well as the learned Addl. Prosecutor General for the State at a considerable length and have also gone through the record very minutely.
8. This unfortunate incident wherein Mst. Hajran Bibi (deceased) sister of complainant lost her life, as per prosecution, took place of 17.03.2010 at about 1.00 p.m. in the area of Jameel Park, Street No. 3 situated within the territorial limits of Police Station Raza Abad District Faisalabad. The distance between the place of occurrence and the police station is about five kilometers. The matter was reported to the police through statement (Ex.PD) of Umax Farooq, complainant (PW.4) on the same day at 2.25 p.m. i.e. one hour and twenty five minutes after the incident and formal FIR (Ex.PA/1) was got registered at 2.35 p.m. The post-mortem examination of the dead body of deceased was conducted on the next day i.e. 18.03.2010 at 8.30-a.m. i.e. about nineteen and a half hours after the incident. Therefore, possibility exists that it was an unwitnessed murder and time had been consumed by the police in procuring and planting eye-witnesses and in’ cooking up a story for the prosecution. In this regard, reliance is placed on the case of “Muhammad Riaz vs. The State” (2009 P.Cr.LJ. 1022
Same view was affirmed by the Hon’ble Supreme Court of Pakistan in the cases of “Irshad Ahmed vs. The State” (2011 SCMR 1190) and “Nazeer Ahmed vs. The State” (2016 SCMR 1628).
9. The ocular account in this case has been furnished before the learned trial Court by Umar Farooq, complainant (PW.4) and Muhammad Ashraf (PW.5), who were closely related to the deceased being her brother and paternal uncle, respectively and were chance witnesses because they were neither residents of the place of occurrence nor have any place of business over there. The occurrence took place in the area of Jameel Park, Faisalabad whereas Umar Farooq, complainant (PW.4) was resident of Harbanspura, Lahore and Muhammad Ashraf (PW.5) was residing at Millat Town, Faisalabad, which as stated by him was at a distance of fifteen kilometers from the place of occurrence. No plausible or convincing reason was offered by both the eye-witnesses for going to the house of deceased and it was their stance that Mst. Hajran Bibi telephonically informed the complainant that her husband (appellant) usurped her ornaments and on asking about the same, the appellant used to quarrel with her. The presence of both these PWs on the spot at the time of incident is doubtful in nature because had they been present on the spot at relevant time, why they did not try to rescue the deceased or to catch hold of the appellant, who admittedly was not armed with any fire-arm to ward the said eye-witnesses off or to keep them away at the time of incident. There is conflict in the ocular account and medical evidence as it was stated by both the eye-witnesses in their examination-in-chief that the deceased received one stab wound on her chest but according to Dr. Tanvir Zafar (PW.8), there were two stab wounds on the chest of deceased. Before the learned trial Court, the eye-witnesses have utterly failed to establish their presence on the place of occurrence at relevant time. It is in this context that the testimony of a chance witness ordinarily is not accepted unless justifiable reasons are shown to establish his presence at the crime scene at the relevant time. In normal course, the presumption under the law would operate about his absence from the crime spot. The testimony of chance witness may be relied upon, provided some convincing explanations appealing to a prudent mind for his presence at the crime spot are put forth, when the occurrence took place otherwise his testimony would fall within the category of suspect evidence and cannot be accepted without a pinch of salt. Reliance may be placed on the case law reported as “Mst. Sughra Begum and another vs. Qaiser Pervez and others” (2015 SCMR 1142) and “Muhammad Javed vs. The State” (2016 SCMR 2021). All these factors clearly suggest that it was an unwitnessed occurrence and the alleged eye-witnesses were not present on the spot.
11. So far as the alleged recovery of chhurri (P.5) at the instance of the appellant which was taken into possession vide recovery memo. Ex.PF is concerned, the same is inconsequential for the reasons that it was got recovered from a graveyard which was an open place, accessible to everyone and there was no mention in the recovery memo. (Ex.PF) that the chhurri was stained with blood.
12. So far as the defence plea taken by the appellant in his statement under Section 342, 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.
14. For the foregoing reasons, Criminal Appeal No. 55728-J of 2017 filed by Ijaz Ali (appellant) is allowed, conviction and sentence awarded to the appellant vide judgment dated 08.03.2017 passed by the learned Addl. Sessions Judge, Faisalabad are set aside and he is acquitted of the charge levelled against him while extending him benefit of doubt. The appellant is in jail. He shall be released forthwith if not required to be detained in any other case.
15. Murder Reference No. 185 of 2017 is answered in the NEGATIVE and the sentence of death awarded to Ijaz Ali (convict) is NOT CONFIRMED.
(A.A.K.) Appeal allowed
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