-No convincing or plausible reason was mentioned in FIR or stated before trial Court for this inordinate delay in reporting crime to police, rather complainant admitted during cross examination that he submitted his complaint to SHO P.S--Civil Lines for registration of case on 26th October, 2014-

 PLJ 2022 Cr.C. 860

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

----S. 302(b)--Conviction and sentence--Challenge to--Qatl-e-amd--Benefit of doubt--Ocular account--No convincing or plausible reason was mentioned in FIR or stated before trial Court for this inordinate delay in reporting crime to police, rather complainant admitted during cross examination that he submitted his complaint to SHO P.S--Civil Lines for registration of case on 26th October, 2014--This delay in setting machinery of law in motion speaks volumes against veracity of prosecution version--As far as medical evidence is concerned, same may confirm ocular account with regard to receipt of injury, locale of injury, kind of weapon used for causing injury, duration between injury and death but it would not tell name of assailants--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.                  [Pp. 862 & 863] A, B & C

2009 SCMR 230.

Benefit of doubt--

----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.         [P. 863] D

2009 SCMR 230.

Ms. Amra Salam Babar, Advocate/Defence Counsel for Appellant.

Mr. Ali Hassan, Addl. Prosecutor General for State.

Complainant in Person.

Date of Hearing: 25.10.2021.

 PLJ 2022 Cr.C. 860
[Lahore High Court, Lahore]
Present: Shehram Sarwar Ch., J.
SIKANDAR--Appellant
versus
STATE--Respondent
Crl. A. No. 93-J of 2015, heard on 25.10.2021.

Judgment

Sikandar (appellant) was tried by the learned Addl. Sessions Judge, Sialkot in case FIR No. 465 dated 26.10.2014 offence under Section 302, PPC, registered at Police Station Civil Lines District Sialkot for the murder of Tanvir Hussain, prisoner (deceased). Vide judgment dated 27.02.2016 passed by the learned trial Court, the appellant has been convicted under Section 302(b), PPC and sentenced to imprisonment for life, with a further direction to pay Rs. 1,00,000/-as compensation under Section 544-A, Code of Criminal Procedure, to the legal heirs of deceased and in default whereof to further undergo simple imprisonment for six months. Assailing the above conviction and sentence, the appellant has filed the appeal in hand.

2. Prosecution story, as set out in the FIR (Ex.PB) registered on the written application (Ex.PA) of Muhammad Latif, complainant (PW.1) is that on the intervening night of 24/25.10.2014, a quarrel took place between Sikandar (appellant) and Tanvir Hussain while they were admitted in Hospital Mental Cell Jail as under observation mental patients and the appellant tortured him. The appellant with intent to kill Tanvir Hussain hit his head with Tanvir Hussain, as a result whereof, he struck with the wall and fell down and became senseless. He was sent to jail hospital for medical treatment but he could not come to senses, so he was sent to Allama Iqbal Memorial Hospital, Sialkot. Subsequently, Tanvir Hussain died on 31.10.2014 and Section 302, PPC was substituted with Section 324, PPC.

3. I have heard learned counsel for the appellant as well as the learned Law Officer for the State, assisted by the complainant and gone through the record with their able assistance.

4. This tragic incident wherein Tanvir Hussain (deceased) lost his life, as per prosecution, took place on the intervening night of 24/25.10.2014 in Mental Cell, Jail Hospital, Sialkot situated within the territorial limits of Police Station Civil Lines District Sialkot. The distance between the police station and place of occurrence was one furlong. No time of incident was mentioned in the FIR and it was stated by the complainant before the learned trial Court as 9.45 p.m. The matter was reported to the police through written application (Fx.PA) of the complainant on 26.10.2014 at 8.00 p.m. i.e. about two days after the incident and formal FIR (Ex.PB) was got registered. No convincing or plausible reason was mentioned in the FIR or stated before the learned trial Court for this inordinate delay in reporting the crime to the police, rather the complainant admitted during cross examination that he submitted his complaint to the SHO P.S. Civil Lines for registration of case on 26th October, 2014. Therefore, I hold that this delay in setting the machinery of law in motion speaks volumes against the veracity of prosecution version. Reliance is placed on case law titled as “Altaf Hussain vs. The State” (2019 SCMR 274).

5. The ocular account in this case has been furnished before the learned trial Court by Muhammad Latif, Complainant (PW.1), Muhammad Abbas Warder (PW.4) and Amjad Ali Warder (PW.5). The stance of Muhammad Latif, complainant (PW.1) in examination-in-chief was that the appellant, deceased and three other prisoners were admitted in Mental Cell Jail Hospital, Sialkot as under observation mental patients when the appellant scuffled with Tanvir Hussain (deceased) and hit his head to the deceased, who further hit the wall and fell down. During cross examination, the complainant admitted that his duty was in day time on 24th October, 2014 and in the closing sentence of cross examination, he also conceded that when he reached the place of occurrence, the deceased was lying on the ground. So far as Muhammad Abbas Warder (PW.4) is concerned, he himself stated in his examination-in-chief that on call of Amjad Ali Warder (PW.5), he rushed towards him who asked him to fetch keys of Cell No. 5 from deuri and also informed that two mental patients have quarrelled with each other and one patient hit his head with the other who has fallen on the ground, meaning thereby he (PW.4) did not witness the occurrence. Likewise, Amjad Ali Warder (PW.5) claimed to have witnessed the occurrence. His cross examination also negates the presence of PW. 1 and PW.4, who stated that after some time, Muhammad Abbas (PW.4) along with Muhammad Latif, complainant (PW.l) reached there. It was stance of all the PWs that the appellant had scuffle with the deceased and he hit his head to the deceased, who fell down. I found it to be quite strange that despite their claimed presence at the scene of crime at relevant time, the said eyewitnesses had not tried to stop or catch hold of the appellant who was not armed with any firearm to ward the said witnesses off or to keep them away. Under the circumstances, the evidence of Muhammad Latif, complainant (PW.1), Muhammad Abbas Warder (PW.4) and Amjad Ali Warder (PW.5) is not credible and trustworthy.

6. As far as medical evidence is concerned, the same may confirm the ocular account with regard to the receipt of injury, locale of injury, kind of weapon used for causing the injury, duration between the injury and the death but it would not tell the name of the assailants. Reliance is placed on “Ata Muhammad and another versus State” (1995 SCMR 599).

7. 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.

8. I 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. In this regard, reliance may be place on the case law reported as “Muhammad Akram versus The State” (2009 SCMR 230).

9. For the foregoing reasons, Criminal Appeal No. 93-J of 2015 filed by Sikandar (appellant) is allowed, conviction and sentence awarded to the appellant vide judgment dated 27.02.2016 passed by the learned Addl. Sessions Judge, Sialkot 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.

(A.A.K.)          Appeal allowed