PLJ 2022 Cr.C. 1103 (DB)
----Ss. 302/34--Qatl-i-Amd--Conviction and sentence--Challenge to--Eye witnesses had failed to prove their presence--Chance witness--Acquittal of--Postmortem was conducted on the same day--There was no justification for not dispatching the dead body to the mortuary and providing police papers with such delay--The presence of the above mentioned eye witnesses at the spot at the relevant time was not natural--Eye witnesses had failed to prove their presence at the time of occurrence--They are, therefore, chance witnesses and as such their evidence is not free from doubt--Witnesses of ocular account, PW-7 and PW-8 are not witnesses of inquest report and post mortem--Had they been present at the scene of the occurrence at the relevant time, they must have been the witnesses of inquest report--According to the contents of FIR, the appellant made three fire shots on the head of deceased whereas according to the postmortem report, there was only one entry wound on the head of deceased--Which fact depicts that eye witnesses were not present at the place of occurrence--The report of Punjab Forensic Science Agency, Lahore is confined to working condition of pistol 30 bore--This piece of evidence has rightly been discarded--If prosecution sets up a motive but fails to prove it, then, it is the prosecution who has to suffer and not the accused--Accept his criminal appeal and acquit him of the charge. [Pp. 1108, 1109,
1110, 1111,1112 & 113] A, B, C, D, E, F, G, H, I, J, K
2021 SCMR 16; 2015 SCMR 1142; 2017 SCMR 142; 2020 SCMR 192; 2017 SCMR 1155; 2018 SCMR 153; PLD 1976 SC 593; 1983 SCMR 1316; 2019 SCMR 129; 2021 SCMR 780; 2010 SCMR 97; 2017 SCMR 344; 2019 SCMR 2000; 2020 SCMR 305; 2021 SCMR 780; 2021 SCMR 810; 2018 SCMR 772; 2020 SCMR 857; 2021 SCMR 736;
2021 SCMR 873 ref.
Sardar Muhammad Ramzan, Advocate for Appellant.
Mr. Sultan Akbar Chattha, DPG for State.
Mukhdoom Muhammad Adnan and Rao Faheem Akhtar Khan, Advocates for Complainant.
Date of hearing 26.10.2021.
PLJ 2022 Cr.C. 1103 (DB)
[Lahore High Court, Lahore]
Present: Malik Shahzad Ahmad Khan and Muhammad Tariq Nadeem, JJ.
MUHAMMAD JAVED--Appellant
versus
STATE etc.--Respondents
Crl. A. No. 119423 & M.R. No. 653 of 2017, decided on 26.10.2021.
Judgment
Muhammad Tariq Nadeem, J.--Through this single judgment, we intend to dispose of Criminal Appeal No. 119423-J of 2017, filed by Muhammad Javed, appellant against his conviction and sentence along with Murder Reference No. 653 of 2017, transmitted by learned trial Court for confirmation or otherwise of death sentence of the appellant being originated from the same judgment dated 21-11-2017 passed by learned Additional Sessions Judge, Piplan, District Mianwali in case FIR No. 25 dated 11.2.2012 for offences under Sections 302, 34, PPC registered at Police Station Kundian, at the conclusion of trial the appellant was convicted under Section 302(b), PPC and sentenced to death with a direction to pay a sum of Rs. 3,00,000/- as compensation under Section 544-A, Cr.P.C. to the legal heirs of deceased, in default thereof to further undergo six months S.I.
2. The brief facts as narrated in FIR (Ex.PC) lodged by Aman Ullah, complainant (not examined being went to abroad) is that on 11-02-2012 at about "1:45 p.m., he along with his brother Sher Bahadur (deceased), his nephews Muhammad Naeem and Muhammad Salim (sons of Sher Bahadur deceased), were fishing near Fisheries Farm situated at metalled road leading towards Kacha Kahlon, when suddenly accused Javed armed with pistol 30 bore and Ilyas, empty handed emerged there. Ilyas, accused raised Lalkara that be brave, they had come to take revenge of their insult upon which Javed, accused started firing straight at Sher Bahadur (deceased) with his pistol, which landed on front of his chest, the bicep of left arm, the right, left and middle of the head, upper side of left eye, right hand and shank of right leg, who fell down on the ground and succumbed to the injuries at the spot. The accused persons took to their heels while hurling Lalkaras.
The motive behind the occurrence was that one and half year before the occurrence, brother of the complainant namely Saif Ullah had abducted Mst. Naurin Bibi sister of Javed, accused and due to this grudge, Javed and Ilyas accused in furtherance of their common intention committed the occurrence.
3. After completion of investigation, a report under Section 173, Cr.P.C. was prepared and submitted before the learned trial Court. The learned trial Court after observing all codal formalities, as provided under the Code of Criminal Procedure, 1898 framed charge under Sections 302/34 PPC against the appellant along with his acquitted co-accused Muhammad Ilyas to which they pleaded not guilty and claimed trial. In order to prove its case, the prosecution produced as many as 13 witnesses during the trial.
4. Muhammad Naeem (PW.7) and Salim (PW.8) have furnished the ocular account. Muhammad Shafiq, draftsman appeared as (PW.5), who prepared scaled site-plan of the place of occurrence as (Ex.PE and Ex.PE/1). Ameer Qasim 892/C (PW.11) was the witness of recovery of pistol 30 bore (P.6) recovered by the police on the disclosure and pointation of the appellant from his residential house vide recovery memo. (Ex. P.G) Muhammad Farooq, SI (PW.12) and Sher Ali, SI (PW.13), stated about the various steps taken by them during investigation of the case.
The medical evidence was furnished by Doctor Akhtar Abbas Khan, Medical Superintendent/Child Specialist, THQ, Hospital, Isa Khel (PW.4), who on 11-02-2012 conducted autopsy on the dead body of Sher Bahadur, deceased and noted following injuries on his body:-
INJURIES
1. A fire-arm wound of entry 1 xl cm with inverted margins, blackening and burning was present in and around the wound, 1 cm from left eybrow and 6 cm in front of left ear.
2. A fire-arm wound of exit lxl cm with everted margin, 7 cm in front of right ear and 10 cm from midline on right side.
3. A fire-arm wound of entry 1 x 1 cm with inverted margins, blackening was present around the wound margins. 5 cm in front of tip of left shoulder and 9 cm above left axilla.
4. A fire-arm wound of exit of entry No. 3 with everted margins, 5 cm on right side of base of neck from midline, 7 cm from right ear.
5. A fire-arm wound of entry, 2 cm x 1 cm with inverted margins, blackening was present in an around the wound margins. 7 cm above left nipple and 11 cm on left side from midline.
6. A foreign metallic body was recovered which was skin deep on back, 12 cm from midline, 2 cm from tip of left scapula.
7. A firearm wound of entry 1½ cm x 1 cm with inverted margins, blackening and burning was present in an around the wound margins on left side of back, 9 cm from midline and 10 cm from shoulder tip.
8. A foreign metallic body was recovered which was skin deep along upper border of left clavicle bone.
9. A firearm wound of entry lxl cm with inverted margins, blackening was present around wound on lateral aspect of left thigh, 6 cm above left knee joint, 30 cm below iliac crest.
10. A firearm wound of exit of injury No. 9 1 x a cm with everted margin, 4 cm above left knee, 22 cm below base of left leg on medial aspect of left leg.
11. A firearm wound of entry, lxl cm with inverted margins, blackening present around wound margin, 26 cm below right knee joint, 15 cm above right ankle joint on right leg.
12. A firearm wound of exit of entry injury No. 11,3 x 1 cm with everted margin, 8 cm above right ankle and 22 cm below right knee joint on right leg.
13. A firearm grazing wound of 5 x 2 cm on right hand, 4 cm below wrist joint and 6 cm above tip of right thumb on right hand.
He opined that the cause of death was occurred due to hemorrhagic, neurogenic and cardiogenic shock as a consequence of injuries No. 1,2,3,4,5,6 and 7, which badly damaged brain and left lung. These injuries were grievous and dangerous for life and were sufficient to cause death in ordinary course of nature. Injuries No. 8 and 13 were also grievous and ante mortem, caused by firearm weapon. He also issued postmortem report (Ex.PD) of the deceased Sher Bahadur.
5. Rest of the prosecution witnesses are almost formal in nature. The prosecution gave up Aman Ullah, complainant as he had gone to abroad as well as PWs namely Zia-ul-Haq 1521/C and Rizwan, being unnecessary and after tendering report of Chemical Examiner (Ex.PS), Serologist (Ex.PT) and report of Punjab Forensic Science Agency, Lahore (Ex.PU) regarding crime weapon, closed its evidence.
6. Thereafter, the statement under Section 342, Cr.P.C. of the appellant along with his acquitted co-accused were recorded wherein they denied the allegations leveled against them and professed their innocence. While answering to a question, "Why this case against you and why the PWs have deposed against you, the appellant Muhammad Javed replied as under:
"I am innocent. Complainant did not appear before the learned Court to support the prosecution's case without any justification and cause. Both the eye witnesses are real brothers and sons
of the deceased, who are highly interested, related and
inimical to me and they made false statements before the trial Court"
He neither opted to appear as his own witness within the scope of Section 340(2), Cr.P.C. nor produced any defence evidence.
7. Upon conclusion of the trial, the learned trial Court vide impugned judgment dated 21-11-2017 convicted and sentenced the appellant as narrated above.
8. Learned counsel for the appellant submits that the appellant has been falsely implicated in this case by the complainant party; that eye witnesses of the case are not only inter se related but they are inimical towards the appellant rather they are chance witnesses, therefore, their evidence is not reliable without any independent corroboration which is very much lacking in this case; that the medical evidence is in conflict with the ocular account of the prosecution; that a fake recovery of weapon of offence was planted against the appellant; that the prosecution has failed to prove the motive of the case; that it is an established view of the Apex Court of the country that a slightest doubt in the prosecution evidence is sufficient to give benefit of doubt to the accused and the case in hand is full of doubts, therefore, by accepting the appeal, the appellant be acquitted of the charge.
9. On the other hand, learned Deputy Prosecutor General assisted by learned counsel for the complainant contended that the appellant is nominated in FIR with specific role attributed to him, which is borne out from postmortem examination report of the deceased; that the prosecution witnesses had no reason to falsely implicate the appellant in this case or to substitute him in lieu of real culprit; that the medical evidence furnished by the doctor in this regard fully supports the ocular account; that the prosecution witnesses are consistent on each and every material point and there seem no discrepancies in their statements; that there was no previous ill-will or enmity between the parties, so possibility of false implication of the appellant in this case is ruled out; that the prosecution has proved its case against the appellant beyond any reasonable doubt, thus, the appeal filed by the appellant may be dismissed and murder reference may be answered in affirmative.
10. We have heard the arguments of the learned counsel for the appellant and learned Deputy Prosecutor General assisted by learned counsel for the complainant assiduously and also scanned the record minutely with their able assistance.
11. The detail of the prosecution case as set forth in the FIR (Ex. PC) and in the complaint (Ex.PB), has already been given in paragraph No. 3 of this judgment, therefore, there is no need to repeat the same.
"... It is correct that dead body was received at 7.00 PM and at that time complete documents from police were not received. Volunteers stated that complete documents from police were received at 8.00 PM. There was no delay on my part in conducting postmortem examination. It is correct that unset of rigor mortis starts after two hours of death in deceased person. Immediate death is meant, a death within 02 to 03 minutes or may be less. My observation is that in this case death of the deceased happened at the spot. It is correct that postmortem of deceased was conducted about 08 hours after his death ..."
"... the matter was reported to police on the same night at 09:45 p.m. whereas the FIR was registered at 10:30 p.m., Surprisingly, post-mortem examination on the dead body of Muhammad Tayyab was conducted on 19-09-20018 at 6:30 a.m. Dr. Muhammad Sharif (PW6) who conducted autopsy stated in his cross examination that at THQ, Hospital, Depalpur, the arrangements for conducting posts-mortem examination are available at night; that he was on duty in the hospital on that night; that his duty started from 8:00 p.m. on 18-09-2008 till 08.00 a.m. on 19-09-2008; that he received the police papers at 6.30 a.m. on 19.09.2008. There is no explanation on record why the autopsy on the dead body of Muhammad Tayyab was conducted with delay of more than nine hours."
Wisdom is also derived from the judgments reported as "Sufyan Nawaz and another vs. The State and others (2020 SCMR 192), Irshad Ahmad v. The State " (2011 SCMR 1190), "Muhammad Ashraf v. The State (2012 SCMR 419) and "Khalid alias Khalidi and 2 others v. The State (2012 SCMR 327).
"... It is correct that the contract of fishing amounting Rs. Karor is given every year. It is correct that fisheries department issues permit for fishing. Volunteers stated that, we had obtained permission for fishing from the contractors. It is incorrect to suggest that volunteered portion of my statement is wrong. I did not produce any permit for hunting before the police. I did not produce any net, kundi or any other concerned material for fishing to the police. I do not remember when police reached at the place of occurrence, whether, any sort of material concerned of fishing was present at the place of occurrence, or not. Volunteers stated that, during the occurrence, I could not note in this regard. We left our house for fishing, round about at a distance of about one K.M. from the place of occurrence towards south. No hunting fish was presented to the police. Volunteers stated that, no fish was caught prior to the occurrence.."
Similarly, Salim (PW.8) during his cross-examination stated as infra:
"...It is correct that without getting proper permission, the hunting of fish is not allowed. Volunteers stated that, we were hunting there just for enjoyment. No fish was caught prior to the occurrence. No material was produced before the police. Our Khalazad Muhammad Amir had obtained permission of hunting from the contractors. I do not know the name of contractors. Said my Khalazad Muhammad Aamir is not the witness of this case..."
Moreso, Muhammad Farooq, SI (PW.12), who initially conducted investigation of the case during his cross examination stated as under:-
"... It is correct that it was not the version of complainant and PWs that they were fishing at the time of occurrence………It is correct that no fishing material was ever produced by the complainant and PWs during the course of investigation. It is correct that no permit of fishing was produced by complainant and PWs before me.......”
"14... A chance witness, in legal parlance is the one who claims that he was present on the crime spot at the fateful time, albeit, his presence there was sheer chance as in the ordinary course of business, place of residence and normal course of events, he was not supposed to be present on the spot but at a place where he resides, carries on business or runs day to day life affairs. It is in this context that the testimony of 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.
True that in rare cases, the testimony of chance witness may be relied upon, provided some convincing explanations appealing to prudent mind for his presence on the crime spot are put forth, where the occurrence took place otherwise, his testimony would fall within the category of suspect evidence and cannot be accepted without a pinch of salt."
Similar view was reiterated in the case of "Muhammad Irshad vs. Allah Ditta and others" (2017 SCMR 142). Relevant part of the said judgement at Para No. 2 reads as under:
"Muhammad Irshad complainant (PW8) and Rab Nawaz (PW9) were chance witnesses and the stated reason for their presence with the deceased at the relevant time had never been established before the trial Court through any independent evidence ..."
Likewise, in the case of "Sufyan Nawaz and another vs. The State and others " (2020 SCMR 192) at Para No. 5, the Apex Court of the country was pleased to observe as under:
"…………..He admitted that in his statement before police, he had not assigned any reason for coming to village on the day of occurrence. In these circumstances, complainant Muhammad Arshad (PW.7) is, by all means, a chance witness and his presence at the spot at the relevant time is not free from doubt.."
As the above mentioned prosecution eye-witnesses are chance witnesses and they could not prove the reason of their presence at the spot at the time of occurrence, therefore, their very presence at the place of occurrence at the relevant time becomes doubtful.
"4... Needles 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 than 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)..."
Similar view was taken in the case of "Muhammad Imran vs. The State" (2020 SCMR 857). Relevant part of the said judgement at Para No. 5 reads as under:
"………..It is by now well settled that benefit of a single circumstance, deducible from the record, intriguing upon the integrity of prosecution case, is to be extended to the accused without reservation; the case is fraught with many. It would be unsafe to maintain the conviction ...."
Reference can also be made to the cases of "Najaf Ali Shah vs. The State" (2021 SCMR 736) "& "The State through P.G. Sindh and others vs. Ahmed Omar Sheikh and others " (2021 SCMR 873).
19. For what has been discussed above, the prosecution has failed to prove its case against the appellant beyond any shadow of doubt. So by extending the benefit of doubt to Muhammad Javed, appellant, we accept his criminal appeal and acquit him of the charge. He shall be released from the jail forthwith, if not required to be detained in connection with any other case.
20. Murder Reference No. 653 of 2017 is answered in negative and death sentence passed by learned trial Court against Muhammad Javed, appellant is not confirmed.
(K.Q.B.) Appeal accepted
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