PLJ 2022 Cr.C. 896 (DB)
----S. 302(b)--Conviction and sentence--Challenge to--Benefit of doubt--Qatl-e-amd--Dera of deceased, where said meeting was taking place, has not been mentioned either in the1 site plans or even in inspection note as prepared by Investigating Officer--In absence of physical proof or reason for presence of witnesses at crime scene--Claim of witnesses who lived one kilometer away from occurrence, but on day of occurrence stated to be present near spot as they working as labourers, inasmuch as they failed to give any detail of projects they were working--Who were all residents of some other houses and they were not inmates of house wherein occurrence had taken place and he said eye-witnesses were, thus, chance witnesses and not worthy of reliance--Occurrence at time of occurrence for witnesses to make a positive identity of assailants neither witnesses produced any such source of light during investigation of case or during trial through which source they could have identified assailants in dead of night--The prosecution failed to establish fact of such availability of light source and in absence of their ability to do so, we cannot-presume existence of such a light source--Moreover during investigation of case or trial, no documentary evidence was produced to support motive of occurrence--Failure of prosecution to produce any documentary evidence in support of motive institutes that appellant had no motive to commit occurrence--Prosecution remained unable to establish any motive--A tainted piece of evidence cannot corroborate another tainted piece of evidence--Held: It is an axiomatic principle of law that in case of doubt, benefit thereof must accrue in favour of accused as matter of right and not of grace.
[Pp. 904, 905, 910 & 912] A, B, C, D, H & M
2014 SCMR 1698, 2017 SCMR 622, 2017 SCMR 724, 2017 SCMR 135 & 2017 SCMR 564.
Absence of witness--
----Delay--August Supreme Court of Pakistan that such delay is reflective of absence of witnesses and sole purpose of causing such delay is to procure presence of witnesses and to further advance a false narrative to involve any person. [P. 905] E
2012 SCMR 327, 2019 SCMR 956, 2019 SCMR 1068 &
2017 SCMR 596.
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 129--If witness was left alive he would depose against accused even then assailants did not cause any injury to him--Such behavior, on part of accused, runs counter to natural human conduct and behavior--Article 129 of Qanun-e-Shahadat Order, 1984 allows Courts to presume existence of any fact, which it thinks likely to have happened, regard being had to common course of natural events and human conduct in relation to facts of particular case--Thus believe existence of this fact, by virtue of Article 129 of Qanun-e-Shahadat Order, 1984, that conduct of assailants as deposed to by witness PW-8 was opposed to common course of natural events and human conduct--Hence, Court is holding that PW-8 did not witness occurrence. [P. 908] F
Motivation against witness--
----Where motivation was, against complainant or witnesses but accused did not cause any harm to them notwithstanding being within range of their firing would reveal that messes were not present at place of occurrence. [P. 909] G
2019 SCMR 1170.
Abscondance of accused--
----Fact of abscondence of an accused can be used as a corroborative piece of evidence, which cannot be read in isolation but it has to be read along with substantive piece of evidence. [P. 911] I
PLD 1971 SC 541, 1995 SCMR 1373 and 1995 SCMR 1632.
Abscondance--
----Abscondence itself has no value in absence of any other] evidence--Abscondence of accused can never remedy defects in prosecution case--By august Supreme Court of Pakistan that abscondence per se is not, sufficient to prove guilt but can be taken as a corroborative piece of evidence. [P. 911] J
1999 SCMR 1220, 1999 SCMR 304 and 1992 SCMR 814.
Abscondance--
----It was observed that conviction on abscondence alone cannot be sustained--In present case, substantive piece of evidence in shape of ocular account has been disbelieved, therefore, no conviction can be based on abscondence alone. [Pp. 911 & 912] K
2006 SCMR 1707, 1984 SCMR 1092 & 2010 SCMR 566.
Benefit of doubt--
----Principle--It is settled principle of law that for giving benefit of doubt it is not necessary that there should be so many circumstances rather if only a single” circumstance creating reasonable doubt in mind of a prudent person is available then such benefit is to be extended to an accused not as a matter of concession but as of right. [P. 912] L
2018 SCMR 772 & 2009 SCMR 230.
Khawaja Umaiz, Advocate (defence counsel appointed on State expenses) for Appellant.
Mr. Tariq Javaid, Additional Prosecutor General for State.
Date of hearing: 1.6.2020.
PLJ 2022 Cr.C. 896 (DB)
[Lahore
Present: Shehram Sarwar Ch.
RIAZ--Appellant
versus
STATE--Respondent
Crl. A. No. 194235-J of 2018 & M.R. No. 107 of 2019,
heard on 1.6.2020.
Judgment
Sadiq Mahmud Khurram, J.--The appellant namely Riaz son of Lal Din alongwith his co-accused namely Faryad son of Lal Din since acquitted) was tried by the learned Additional Sessions Judge, Faisalabad in case FIR No. 606 of 2005 dated 06.08.2005 registered at Police Station Sargodha Road, District Faisalabad .in respect of offences under Sections 302, 34 and 109, PPC for committing the Qatl-i-Amd of Muhammad Ameen son of Haji Hassan Din (deceased). The learned trial Court vide judgment dated 28.02.2018 convicted Riaz son of Lal Din (convict) and sentenced him as infra:
Riaz son of Lal Din;
Death under Section 302(b), PPC as Tazir for committing Qatl-i-Amd of Muhammad Ameen son of Haji Hassan Din (deceased) and directed to pay Rs. 500,000/- as compensation under Section 544-A., Cr.P.C. to the legal heirs of the deceased, in case of default thereof, the convict was further directed to undergo simple imprisonment for six months. The convict was ordered to be hanged by his neck till dead.
The co-accused of the appellant namely Faryad son of Lal Din was however acquitted by the learned trial Court .
2. Feeling aggrieved, Riaz son of Lal Din (convict) lodged Criminal Appeal No. 194235-J of 2018 against his conviction and sentence through jail. The learned trial Court submitted Murder Reference No. 107 of 2019 under Section 374, Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant Riaz son of Lal Din. We intend to dispose of the Criminal appeal No. 194235-J of 2018 and Murder Reference No. 107 of 2018 through this single judgment.
3. Precisely the necessary facts of the prosecution case, as divulged in the statement of Muhammad Yasin (PW-8) are as under:
“It is stated that a power loom factory was situated in street No. 2/3,
4. After the formal investigation of the case report under Section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial Court wherein the appellant namely Riaz son of Lal Din and his co-accused namely Faryad son of Lal Din( since acquitted) were sent to face trial. The learned trial Court framed the charge against the accused on 03.02.2014, to which the appellant pleaded not guilty and claimed trial.
5. The prosecution in order to prove its case got as many as twelve witnesses examined. Muhammad Yasin (PW-8) gave evidence regarding the ocular account. Muhammad Akram 2313/C (PW-1) stated that on 06.08.2005 he escorted the dead body of the deceased to the hospital for the purpose of post mortem examination and after the post-mortem he was handed over the last worn clothes of the deceased which were taken into possession by the Investigating Officer through recovery memo (Exh.PA) and a phial containing pellets which was taken into possession by the Investigating Officer through recovery memo (Exh.PB). Aurangzeb, draftsman (PW-2) prepared the scaled site plan of the place of occurrence (Exh.PC) on 08.08.2005. Abbas Ali 3128/C (PW-4) stated that on 2.2.2006, he was handed over warrants of arrest of the appellants and on 10.04.2005 he was handed over the proclamation declaring the appellant as an absconder. Abid Hussain 3798/C (PW-5) stated that on 06.08.2005 he received one sealed parcel said to contain blood stained earth which on 30.08.2005, he handed over to Nasir Ali 4092 (PW-3) for its onward transmission to the office of Chemical Examiner, Lahore. Muhammad Ashraf, SI (PW-6) stated that on 21.03.2006, he recorded the supplementary statement of Muhammad Yasin and on 10.04.2006 he submitted application whereupon proclamation regarding the appellant was issued by the Court. Muhammad Aslam, ASI (PW-7) recorded the formal F.I.R (Exh.PK/1) on 6.8.2005. Javed Akram, SI (PW-9) stated that he arrested the appellant in this case on 21.01.2013 .and it was brought on record that the appellant had got recovered a pistol during the investigation of case F.I.R No. 438 of 2012. Sana Ullah, SI (PW-10) stated that on 28.01.2013 the appellant got recovered pistol 30-bore
P-6 and three live bullets P7-9 which were taken into possession through recovery memo (Exh.PL). Muhammad Mushtaq Ahmad, SI (PW-11) stated that on 06.08.2005 he recorded the proceedings on the written application (Exh.PK) and sent the same for registration of the case. Muhammad Mushtaq Ahmad, SI (PW-11) also got recorded secondary evidence with regard to the investigation conducted by Muhammad Hussain SI (PW-12), who investigated the case from 06.08.2005 till 26.11.2005.
6. The prosecution got examined Dr. Javed Iqbal (PW-12), who on 06.08.2005 was posted as Demonstrator at Punjab Medical College Faisalabad and on the same day conducted the post-mortem examination of the dead body of Muhammad Ameen son of Haji Hassan Din . Dr. Javed a Iqbal (PW-1) observed as under:-
“Injuries.
1-A A fire-arm wound of entry 1 x ¾ cm, it was 8 cm from elbow joint on outer lower part of the arm.
1-B A fire-arm wound of exit 1 x ½ cm, it was 2 cm above the elbow joint on inner lower part of right arm.
1-C A fire-arm wound of re-entry 1 x1 cm, it was 26 cm from mid line and 14 cm from right iliac crest, on right lower part of the chest. A fire-arm wound of entry 1x1 cm, it was 10 cm from midline just at the lower and of right sealplula. On right back of the chest.
2-B A fire-arm wound of exit 1 cm ½ cm, it was 11 cm from mid line (sic).
3. A fire-arm wound of entry 1 x 1 cm, it was 4 cm on mid line and 11 cm from 2-A, this (sic) pellet recovered from under the skin on left side of the chest near the sternum.
4. A fire-arm wound of entry ½ x ½ cm it was 1 cm from mid line and 4 cm blow and medially on right back of the abdomen.
5-A. A fire-arm wound of entry 1 x 3/4 cm. It was 9 cm from mid line just above the iliac crest on right lower part of the abdomen.
5-B. A fire-arm wound of exit 1½ x ½ cm, it was 14 cm from mid line and 4 cm above the right anterior superior iliac spine on right lower part of the abdomen.
6. There were two abrasion 1½ x 1 cm and 1 x ¾ cm on right side of the forehead.
………………………………………
FINAL OPINION:
All the injuries were fatal except Injury No. 6 and inflicted by fire-arm. Severely damaged the right lung, heart, liver, intestines and right kidney with led to severe blood loss and hemorrhagic shock. So Injuries No. 1, 2, 3, 4, 5 individually and collectively were sufficient to a cause death in ordinary course of nature. Three metallic projectile were recovered and sealed.
Probable time that elapsed between injury and death was 10 to 20 minutes and between death and post mortem was 12-24 hours."
7. On 11.05.2017, the learned ADPP gave up PW Shabbir Ahmad 3940/HC as being unnecessary, on 05.07.2017, the learned Deputy District Public Prosecutor gave up PW Muhammad Shabbir 3940/C and Muhammad Aslam 174/C as being unnecessary, on 16.10.2017 the learned Deputy District Public Prosecutor gave up PW’s Muhammad Ashraf, Niaz Ali Muhammad Siddique Ghulam Sarwar, Muhammad Afzal and Muhammad Tehseen as being unnecessary, on 16.10.2017 the learned Deputy District Public Prosecutor gave up Akbar Ali 3376/HC as being unnecessary and on 09.11.2017 the learned ADPP gave up PW Idrees Iqbal, SI as being unnecessary. On 27.02.2018, the learned ADPP tendered the report of Punjab Forensic Science Agency,
8. After the closure of prosecution evidence, the learned trial Court examined the appellant namely Riaz son of Lal Din under Section 342, Cr.P.C. and in answer to question why this case against you and why the PWs have deposed against you, he replied that he was innocent and had been falsely involved in the case . The appellant namely Riaz son of Lal Din opted not to get himself examined under Section 340(2) of the Cr.P.C. and did not adduce any evidence in his defence.
9. On the conclusion of the trial, the learned Additional Sessions Judge,
10. The contention of the learned counsel for the appellant precisely is that whole case is fabricated and false and the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence. Learned counsel for the appellant, further contended that the story of the prosecution mentioned in the F.I.R., on the face of it is highly improbable. Learned counsel for the appellant further contended that the statement of Muhammad Yasin (PW-8) was not worthy of reliance. The learned counsel for the appellant also submitted that the recovery was full of procedural defects, of no legal worth and value and result of fake proceedings. The learned counsel for the appellant also argued that the appellant had been involved in the occurrence due to enmity. The learned counsel for the appellant finally submitted that the prosecution has totally failed to prove the case against the accused beyond the shadow of doubt.
11. On the other hand, learned Additional Prosecutor General contended that the prosecution has proved its case beyond shadow of doubt by producing independent witnesses. Learned Additional Prosecutor General further argued that the deceased died as a result of injuries suffered at the hands of the appellant. He further contended that the medical evidence also corroborated the statement of Muhammad Yasin (PW-8). He further argued that the recovery of pistol (P-6) from Riaz son of Lal Din (appellant) also corroborated the ocular account. He contended that there was no occasion for the prosecution witness, who was related to the deceased to substitute the real offender with the innocent in this case. Lastly, he prayed for the rejection of appeal.
12. We have heard the learned counsel for the appellant and learned Additional Prosecutor General and with their assistance perused the record and evidence recorded during the trial carefully.
13. The whole prosecution case revolves around the statement of Muhammad Yasin (PW-8), the brother of the deceased. The other eye-witness of the case namely Muhammad Ashraf did not appear before the learned trial Court and was given up by the prosecution as being unnecessary. Muhammad Yasin (PW-8) was admittedly not the resident of the place of occurrence. The place of occurrence as mentioned by Muhammad Yasin (PW-8) was Fareed Chowk, which according to Muhammad Yasin (PW-8) was at a distance of 100 feet from his house. The time of occurrence as mentioned by the said witness was 3:00 a.m (at night). It is an admitted fact that none of the prosecution witnesses namely Muhammad Yasin (PW-8), Muhammad Saleem (since dead) and Muhammad Ashraf (not produced) had their residences or their houses at the place of occurrence. They were all “chance witnesses”. We have also perused the scaled site plan (Exh.PC) as prepared by Aurangzeb, draftsman (PW-2) and the rough site plan (Exh.PR) as prepared by Muhammad Hussain, SI and find that neither any house nor any shop belonging to the three eye-witnesses is marked in the same. More importantly no place has been pointed out in the said site plans where, prior to the occurrence, the witnesses namely Muhammad Yasin (PW-8), Muhammad Saleem (since dead) and Muhammad Ashraf (not produced) were present. As per the claim of the prosecution witnesses, all the prosecution witnesses namely Muhammad Yasin (PW-8), Muhammad Saleem (since dead) and Muhammad Ashraf (not produced) were present in the Dera of the deceased. A perusal of the above mentioned site plans (Exh.PC and Exh.PR) reveals that the Dera of the deceased wherein all the three prosecution witnesses namely Muhammad Yasin (PW-8), Muhammad Saleem (since dead) and Muhammad Ashraf (not produced) were allegedly present prior to the occurrence, is also not shown in the said site plans. We have noticed that the alleged eye-witnesses namely Muhammad Yasin (PW-8), Muhammad Saleem (since dead) and Muhammad Ashraf (not produced were not mentioned, either in column No. 4 or page 4 of the inquest report (Exh. PN) as being the ones who were present at the time of preparation of the said inquest report (Exh. PN) by the investigating officer. These witnesses were also not the ones who had identified the dead body of the deceased at the time of the post-mortem report. All these omissions are conspicuous by their absence. Moreover, during the course of investigation as well as the trial no independent witness was produced to support the alleged holding of a political meeting at the Dera of the deceased prior to the occurrence. As mentioned above, the said Dera of the deceased, where the said meeting was taking place, has not been mentioned either in the site-plans or even in the inspection note as prepared by the Investigating Officer. In absence of physical proof or the reason for the presence of the witnesses at the crime scene, the same cannot be relied upon. In this respect reliance is placed on the case of “Muhammad Rafiq v. State” (2014 SCMR 1698) wherein the august Supreme Court of Pakistan rejected the claim of witnesses who lived one kilometer away from the occurrence, but on the day of occurrence stated to be present near the spot as they working as labourers, inasmuch as they failed to give any detail of the projects they were working on. Reliance is also placed on the case of “Usman alias Kaloo v. State” (2017 SCMR 622) wherein the august Supreme Court of Pakistan held that the ocular account of the incident had been furnished by Zahoor Ahmad complainant (PW3), Ghulam Farid (PW6) and Manzoor Ahmed (PW-7) who were all residents of some other houses and they were not inmates of the house wherein the occurrence had taken place and he said eye-witnesses were, thus, chance witnesses and not worthy of reliance. Reliance is also placed on the case of “Nasrullah alias Nasro v. The State” (2017 SCMR 724) wherein the august Supreme Court of Pakistan observed as under:
14. We have also noted that no source of light, which could have been available at the place of occurrence at the time of occurrence allowing the witnesses to identify the assailants, was taken into possession by the Investigating Officer namely Muhammad Hussain, SI despite the fact that as per prosecution’s own claim the occurrence had taken place during the night. Muhammad Hussain, SI , the Investigating Officer of the case, during his investigation did not take into possession any article so as to prove that sufficient light was present at the place of occurrence at the time of occurrence for the witnesses to make a positive identity of the assailants neither the witnesses produced any such source of light during the investigation of the case or during the trial through which source they could have identified the assailants in the dead of the night. The prosecution failed to establish the fact of such availability of light source and in absence of their ability to do so, we cannot-presume the existence of such a light source. Reliance is placed on the case of “Azhar Mehmood and others v. The State” (2017 SCMR 135) wherein the August Supreme Court of Pakistan observed as under:
Reliance is placed on the case of “Arshad Khan v. The State” (2017 SCMR 564) wherein the August Supreme Court of Pakistan observed as under:
“The occurrence in this case had taken place before Fajar prayers at about 05.00 a.m. and according to the FIR the occurrence in issue had been witnessed by the eye-witness in the light of an electric bulb but during the investigation no such electric bulb had been secured by the investigating officer.”
The August Supreme Court of Pakistan in the case of “Mian Sohail Ahmed and others vs. The State and others” (2019 SCMR 956) has held as under:
“According to the Doctor (PW-10), who did the post-mortem examination, the dead-body of the deceased was brought to the mortuary at 11:15 a.m. on 01.9.2006 and the post-mortem examination took place at 12 noon after a delay of 15 hours. This delay in the post-mortem examination, when the occurrence was promptly reported at 8:45 p.m. and formal FIR was registered at 9.00 p.m. on 31.8.2006 gives rise to an inference that the incident was not reported as stated by the prosecution.”
The August Supreme Court of Pakistan in the case of “Muhammad Rafique alias Feeqa vs. The State” (2019 SCMR 1068) has held as under:
“More importantly, the only person who can medically examine the dead body during the said police custody of the dead body is the medical officer, and that too, when the same is handed over to him by the police for its examination. For the purposes of the present case, it is crucial to note that, at the time of handing over a dead body by the police to the medical officer, all reports prepared by the investigating officer are also to be handed over in order to assist in the examination of the dead body.
10. Thus, once there is suspicion regarding the death of a person, the following essential steps follow: firstly, there is a complete chain of police custody of the dead body, right from the moment it is taken into custody until it is handed over to the relatives, or in case they are unknown, then till his burial; secondly, post mortem examination of a dead person cannot be carried out without the authorization of competent police officer or the magistrate; thirdly, post mortem of a deceased person can only be carried out by a notified government Medical Officer; and finally, at the time of handing over the dead body by the police to the Medical Officer, all reports prepared by the investigating officer are also to be handed over to the said medical officer to assist his examination of the dead body.
11. It is usually the delay in the preparation of these police reports, which are required to be handed over to the medical officer along with the dead body, that result in the consequential delay of the post mortem examination of the dead person. To repel any adverse inference for such a delay, the prosecution has to provide justifiable reasons therefor, which in the present case is strikingly wanting.”
We have also observed that despite the disapproval of the August Supreme Court of Pakistan, the same method was adopted in this case also that when Mushtaq Ahmed SI, (PW-11) was present at Bolay Di Jhugi on patrolling duty, Muhammad Yasin (PW-8) appeared and presented his written application to him. The August Supreme Court of Pakistan in the case of Mst. Rukhsana Begum & others v. Sajjad &. others (2017 SCMR 596) observed at page 601 as under:
“In the ridder to the FIR, the Investigating Officer has mentioned that the complainant Muhammad Faazal met him somewhere in the way while proceeding to the police station. In past, it had become routine practice of the police that indeed in such like crimes, the FIR/written complaints were being taken on the crime’s spot after preliminary investigation, however, after this Court had disapproved this practice, they have invented a new way of misleading the Court of law because invariably in every second or third case, same and similar practice is adopted.”
16. We have also noted that according to Muhammad Yasin (PW-8) the motive of the occurrence was that the appellant nursed a grudge against the complainant party regarding the inherited property of their grand-father. The dispute of the property related to the grandfather of the appellant and the complainant namely Ali Gohar who had died ten years prior to the occurrence. Muhammad Yasin (PW-8) was equally connected with the motive of the case as was his deceased brother namely Muhammad Amin and he should have been the prime target. Furthermore, the witness had also admitted that he, by his own admission, was in clear view, at a meagre distance, from the assailants and un-armed whereas the appellant and his co-accused were armed with pistols. Neither there was any dearth of ammunition nor that of intent and opportunity. In this scenario it is hard to believe that the Muhammad Yasin (PW-8) would have been shown the Courtesy of being not fired at effectively. Muhammad Yasin (PW-8) did not receive even a single scratch on his person. If the witness namely Muhammad Yasin (PW-8) had been present in the view of the assailants, then he would not have been spared. Muhammad Yasin (PW-8) was miraculously saved in the midst of the firing. Blessing him with such incredible consideration and showing him such favor is implausible and opposed to natural behavior of any accused. It is all the more illogical that being perceptive of the fact that if the witness was left alive he would depose against the accused even then the assailants did not cause any injury to him. Such behavior, on part of the accused, runs counter to natural human conduct and behavior. Article 129 of the Qanun-e-Shahadat Order, 1984 allows the Courts to presume the existence of any fact, which it thinks likely to have happened, regard being had to the common course of natural events and human conduct in relation to the facts of the particular case. We thus believe the existence of this fact, by virtue of the Article 129 of the Qanun-e-Shahadat Order, 1984, that the conduct of the assailants as deposed to by witness namely Muhammad Yasin (PW-8) was opposed to common course of natural events and human conduct. Hence, we are holding that Muhammad Yasin (PW-8) did not witness the occurrence. The August Supreme Court of Pakistan in its binding judgment has repeatedly held that in a scenario where the motivation was against the complainant or the witnesses but the accused did not cause any harm to them notwithstanding being within the range of their firing would reveal that the said witnesses were not present at the place of occurrence. The August Supreme Court of
The August Supreme Court of Pakistan in case Rohtas Khan v. The State (2010 SCMR 566) at page 571 observed as under:
“The alleged motive was against the complainant, but it is noted that the appellant did not cause any injury to the complainant, though he was present within the range of firing, thus it supports the contention of the learned counsel of appellant that P.Ws. were not present at the place of occurrence.”
The August Supreme Court of Pakistan in the case of Muhammad Farooq & another v. The State (2006 SCMR 1707) at page 1712 held as under:
“Had P.W.9 been present on the spot, he was not likely to be spared because the number of injuries on the person of deceased show that at least eighteen rounds were fired. It only shows the degree of venom the killer had for the deceased.”
We are also guided by the binding judgment of the August Supreme Court of Pakistan passed in the case of Mst. Rukhsana Begum & others v. Sajjad & others (2017 SCMR 596) where at page 601 it was observed as under:
“Another intriguing aspect of the matter is that, according to the FIR, all the accused encircled the complainant, the PWs and the two deceased thus, the apparent object was that none could escape alive. The complainant being father of the two deceased and the head of the family was supposed to be the prime target. In fact he has vigorously pursued the case against the accused and also deposed against them as an eye-witness. The site plan positions would show that, he and the other PWs were at the mercy of the assailants but being the prime target even no threat was extended to him. Blessing him with unbelievable Courtesy and mercy shown to him by the accused knowing well that he and the witnesses would depose against them by leaving them unhurt, is absolutely unbelievable story. Such behavior, on the part of the accused runs counter to natural human conduct and behavior explained in the provision of Article 129 of the Qanun-e-Shahadat, Order 1984, therefore, the Court is unable to accept such unbelievable proposition.”
17. We have also noted with concern that the ocular account of the occurrence as furnished by Muhammad Yasin (PW-8) is flawed as it is contrary to the medical evidence available on record. Muhammad Yasin (PW-8) stated before the learned trial Court as under:-
“Fire-arm shot was made by Riaz which hit my brother Amin at his chest. Second fire was made by Adil (since convicted) which hit my brother below his chest.”
According to Muhammad Yasin (PW-8), two assailants armed with pistols had fired at the deceased hitting him on his chest. A perusal of the post-mortem examination as conducted by Dr. Javed Iqbal (PW-12) reveals that he observed only one entry wound on the chest of the deceased which was stated by him as under:-
“3. A fire-arm wound of entry 1x1 cm, , it was 4 cm on mid line and 11 cm from 2-A , this (sic) pellet recovered from under the skin on left side of the chest near the sternum. “
Dr. Javed Iqbal (PW-12) also mentioned Injury No. 1-C as being present on the right back of the chest and declared it to be a re-entry wound of Injury No. 1-A. furthermore, after the post-mortem examination Dr. Javed Iqbal (PW-12) handed over a sealed phial containing pellets to Muhammad Akram 2313/C (PW-1) which was taken into possession by the Investigating Officer through recovery memo (Exh.PB). According to Muhammad Yasin (PW-8) the assailants were armed with pistol of 30-bore and the recovery of pellet from the body of the deceased runs counter to the said claim. These contradictions in the ocular account of the occurrence as narrated by Muhammad Yasin (PW-8) and the medical evidence clearly establishes that the prosecution has miserably failed to prove the charge against the appellant.
18. Learned Additional Prosecutor General has also relied upon the evidence of motive and submitted that it corroborated the ocular account. The motive of the occurrence, given in the written application (Exh.PK), was that the appellant nursed a grudge against the deceased regarding the inheritance of the ancestral land. No details of the said motive were mentioned in the written application (Exh.PK). There is a haunting silence with regard to the minutiae of motive alleged in the written application (Exh.PK). Muhammad Yasin (PW-8) during cross-examination admitted as under:
“It is correct that Baba Lal Din, Faryad, Adil, Riaz had not instituted a civil suit regarding this property in any Court at
“The said, related and. chance witnesses had failed to receive any independent corroboration inasmuch as no independent proof of the motive set up by the prosecution had been, brought on the record of the case.”
19. Learned Additional Prosecutor General has also relied upon the recovery of pistol (P-6) made from the appellant. With respect to recovery of weapon from the appellant it has been observed that report of Punjab Forensic Science Agency,
“Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates, reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, “it is better that ten guilty persons be acquitted rather than one innocent person be convicted”. Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muhammad Akram v. The State (2009 SCMR 230) and Muhammad Zaman v. The State (2014 SCMR 749).”
Reliance is also placed on the judgment of the august Supreme Court of
22. For what has been discussed above, Criminal Appeal No. 194235-J of 2019 lodged by Riaz son of Lal Din (appellant) is accepted and the conviction and sentences of the appellant awarded by the learned trial Court through the impugned judgment dated 28.02.2018 are hereby set-aside. Riaz son of Lal Din (appellant) is ordered to be acquitted. Riaz son of Lal Din (appellant) is directed to be released forthwith if not required in any other case.
23. Murder Reference is answered in Negative and the death sentence of Riaz son of Lal Din is Not Confirmed.
(A.A.K.) Appeal accepted
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