-Recovery of crime weapon---Motive--Double edged weapon---Statements of prosecution witnesses are neither consistent nor render corroboration to each other-

 PLJ 2022 Cr.C.  1067 (DB)

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

----S. 302(b)--Conviction and sentence--Challenge to--Venue of occurrence was billard club--No residence or shop near place of occurrence and had not given any reason in FIR about presence at place of occurrence--Appreciation of evidence--A witness who in view of his place of residence or occupation and in ordinary course  events is not supposed to be present at place of occurrence but claims to be there by chance--Testimony of such witness requires cautious scrutiny and is not accepted unless he gives satisfactory explanation of his presence a or near place of occurrence at relevant time--Neither of two witnesses even gave slightest clue or explanation to justify their presence at place of occurrence at relevant time--Blood stained clothes of these witnesses could be a very strong piece of evidence in support of prosecution case but neither Investigating Officer nor these witnesses themselves opted to procure it--Statements of prosecution witnesses are neither consistent nor render corroboration to each other--Though it has come in evidence of that billiard club was owned by “A” and was run by “P”, thus, CM could be natural witnesses but neither they were joined in investigation, as nothing of sort has been found in statements of any of Investigating Officers, nor were produced in Court during trial--In instant case prosecution has totally failed to establish charge against accused/appellant beyond any shadow of doubt and it is trite that to extend benefit of doubt to an/accused person, it is not necessary that there should be several circumstances creating doubt, rather one reasonable doubt is sufficient to acquit an accused.                                                       

                                                 [Pp. 1071, 1072 & 1073] A, B, C, D & G

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

----S. 302(b)--Sentence--Challenge to--Recovery of crime weapon--It is true crime empty of pistol .30 was collected by SI/IO (CW-3) from place of occurrence and subsequently as deposed by SI/IO (CW-3) a pistol .30 bore was got recovered by accused/appellant from residential room of his house, but PFSA report does not advance prosecution case for reason that it is only with regard to functionality test or mechanically operating condition of such weapon, because Of lack of sufficient suitable corresponding microscopic markings, no opinion could be given whether crime empty collected from spot had been fired from said weapon or not--Similarly, metallic piece was examined but was not found suitable for comparison--Thus, this piece of evidence remains inconsequential.        [P. 1073] E

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

----S. 302(b)--Sentence--Challenge to--Motive--Double edged weapon--Testimonies of witness--Some throw about previous quarrel is available in deposition of PWs yet no FIR as alleged of previous quarrel was brought on record, however, at times motive works as a double edged weapon--Depending on facts and circumstances of case, it can be a reason for commission of crime and at same time it can also form basis for their false implication--In any case, since testimonies of witnesses of ocular account have been disbelieved,  the motive part is least important to be given any weightage.

                                                                                            [P. 1073] F

Miss Sheeba Qaisar, Advocate for Appellant.

Rana Arif Kamal Noon, Prosecutor General Punjab for State.

Ch. Muhammad Akram Khaksar, Advocate for Complainant.

Date of Hearing: 7.4.2022.

 PLJ 2022 Cr.C.  1067 (DB)
[Lahore High Court, Lahore]
Present: Shehram Sarwar Ch., and Muhammad Amjad Rafiq, JJ.
JAVED alias JAIDI--Appellant
versus
STATE--Respondent
Crl. A. No. 202899 of 2018, and M.R. No. 191 of 2018
heard on 7.4.2022.

Judgment

Muhammad Amjad Rafiq, J.--Javed alias Jaidi (accused/appellant) along with Muhammad Talib and Shahid faced trial before learned Additional Sessions Judge, Jaranwala in a private complaint titled “Muhammad Sharif versus Javed alias Jaidi, etc” and on conclusion of trial vide judgment dated 16.03.2018, co-accused Muhammad Talib and Shahid were acquitted of the charges, whereas, Javed alias Jaidi (accused/appellant) was convicted under Section 302(b), PPC and sentenced to death. He was also ordered to pay
Rs. 200,000/- as compensation under Section 544-A, Cr.P.C. to the legal heirs of deceased Muhammad Shahbaz. Criminal Appeal No. 202899/2018 has been filed by the accused/appellant against his above conviction/sentence, whereas, Murder Reference No. 191/2018 has been sent by the learned trial Court as required under Section 374, Cr.P.C. Both these matters are being decided through the instant judgment.

2. Briefly the facts of the case inboxed in a complaint (Ex.PA), formalized through FIR (Ex.PA/1) put-forth by Muhammad Sharif complainant (PW-2) were that on 16.02.2014 at 1.00 p.m. (noon) his son Muhammad Shahbaz was playing billiards in a club near Chowk Deh, when Javed alias Jaidi (accused/appellant) armed with pistol, Muhammad Talib, Shahid (since acquitted), Mazhar, Faqir Hussain (absconders) and Muhammad Yaqoob, all armed with repeaters and 12-bore guns came and shouted to teach Muhammad Shahbaz a lesson for litigation. Muhammad Talib etc. forcibly tried to take Muhammad Shahbaz out of the club, but he offered resistence, whereupon, Javed made a pistol fire which hit on the neck of Muhammad Shahbaz. On hues and cries, complainant, Muhammad Bashir and Ali Akbar attracted to the spot and witnessed the occurrence. The accused decamped from the place of occurrence; Muhammad Shahbaz was being taken to the hospital but he succumbed on the way.

Motive was said to be previous litigation between the parties.

On receiving information about the occurrence Jafar Ali Khan SI (CW-4) proceeded to THQ Hospital, inspected the dead body, prepared injury statement and inquest report, sent the dead body for postmortem and then he himself proceeded to the place of occurrence, inspected the place of occurrence, drafted unsealed site-plan, took into possession blood stained earth, collected one empty of pistol .30 bore and one bullet vide recovery memo. Ex.PC, recorded statements of witnesses; later got prepared scaled site-plan and on 20.03.2014 formally arrested Javed alias Jaidi. On transfer of Jafar Ali Khan, the investigation was entrusted to Muhammad Bilal SI (CW-3) and during interrogation on 02.04.2014 accused Javed led to recovery of pistol .30 bore from room of his residential house kept in iron box and ultimately report under Section 173, Cr.P.C. was submitted only against Javed alias Jaidi, as rest of the accused were not found involved in the commission of the offence.

3. Being dissatisfied with the outcome of investigation, the complainant initiated private prosecution exactly with the same narration as mentioned in the complaint (Ex.PA) and after cursory evidence, the accused were summoned to face trial; they were charge sheeted and on their denial, in addition to the above two Investigating Officers, the prosecution examined Muhammad Sharif complainant (PW-2) and Ali Akbar (PW-3) who deposed about the ocular account and Dr. Nasir Mahmood (CW-1) who had conducted autopsy over the dead body of Muhammad Shahbaz, the rest of the witnesses were formal in nature, On close of prosecution case; the accused when examined under Section 342, Cr.P.C. denied the prosecution evidence and on a question as “Why this case against you and why the PWs have deposed against you” Javed alias Jaidi (accused/appellant) made the following reply:

“PWs have deposed against me falsely due to inter-se relation. I am quite innocent. Actually, on the day of occurrence, I was busy in playing billiard in billiard club. Meanwhile, deceased Shahbaz alongwith his companion Azhaar, Arslan Majeed etc. came in the billiard club because they intended (to) retaliate motive occurrence, in the meanwhile, a scuffled (sic) took place between me and Shahbaz. I overpowered Shahbaz deceased on which Shahbaz deceased asked his companion to fire at me on which companion of Shahbaz deceased made fire which accidently hit Shahbaz deceased instead of me. I did not make any fire. Similarly complainant party made attack on me when I was playing billiard.”

However, accused/appellant did not produce any witness in his defence nor opted to appear in the witness box as required by Section 340(2), Cr.P.C. and the trial ended in the terms as detailed in opening paragraph of this judgment.

4. We have heard the arguments of learned counsel for the parties at considerable length and perused the record with their assistance.

5. It is a fact that venue of occurrence is a billiard club and according to the complainant he and Ali Akbar were attracted there on hearing the hues and cries. Muhammad Sharif complainant (PW-2) while appearing in the dock stated that he had no residence or shop near the place of occurrence and that he had not given any reason in FIR about his presence at the place of occurrence. Ali Akbar (PW-3) also has not alleged his residence at or around the venue of occurrence. We are mindful of the fact that a witness who in view of his place of residence or occupation and in the ordinary course of events is not supposed to be present at the place of the occurrence but claims to be there by chance. Testimony of such witness requires cautious scrutiny and is not accepted unless he gives satisfactory explanation of his presence a or near the place of the occurrence at the relevant time. Reliance is placed on the cases Javed Ahmad v. State, 1978 SCMR 114; Zafar Hayat v. State, 1995 SCMR 896; Muhammad Rafique v. State, 2004 SCMR 755; Muhammad Khalid v. Abdullah, 2008 SCMR 158; Sughra Begum v. Qaiser Pervez, 2015 SCMR 1142; Ibrar Hussain v. State. 2020 SCMR 1850. But, here in this case what to talk of reasonable explanation, neither of the two witnesses even gave slightest clue or explanation to justify their presence at the place of occurrence at the relevant time, during their statements before the Court or even during the course of investigation, as the Investigating Officer (CW-3) while responding to a Court question stated that “I arranged confronted meetings, witnesses stated before me regarding their presence but they have not explained reasons regarding their presence at the place and time of occurrence” In this view of the matter, the testimonies of Muhammad Sharif (PW-2) and Ali Akbar (PW-2) remained highly doubtful.

6. The presence of witnesses at the place of occurrence at the relevant time becomes further doubtful when we see that the occurrence in this case took place on 16.02.2012 at 1.00 pm (noon) on a billiard club and it was reported to the police at 4.00 p.m. i.e. three hours after the occurrence, whereas, the police station was just 12 kilometers away from the place of occurrence. Further it is the case of the prosecution that soon after the occurrence, Shahbaz in injured condition was being shifted to hospital but he succumbed to the injury on the way to hospital. During cross-examination Muhammad Sharif complainant (PW-2) stated that when he lifted his son in injured condition his clothes also became stained with blood and in the same breath the witness states that such blood stained clothes were not produced by him before the police. Exactly same is the stance of Ali Akbar (PW-3) who too states that when he attended Shahbaz in injured condition his clothes also became stained with blood but this witness also did not produce such blood stained clothes to the police. Blood stained clothes of these witnesses could be a very strong piece of evidence in support of the prosecution case but neither the Investigating Officer nor these witnesses themselves opted to procure it. It has come in the statement of Jafar Ali Khan SI/IO (CW-4) that he firstly reached to the civil hospital after receiving information of the occurrence at about 04.20 p.m.; at that time the dead body was lying there in the hospital; he inspected the dead body of deceased, prepared injury statement and inquest report of deceased and then handed over the dead body as well as the documents for postmortem examination to Tasawar Hayat Constable. According to postmortem report (Ex.CW.1/A) and also as deposed by Dr. Nasir Mehmood (CW-1) the dead body was received in the dead house on 16.02.2014 at 4.00 p.m. whereas, police papers were later received at 5.50 p.m. and the post mortem was conducted at 6.20 p.m. i.e. more than four hours after the occurrence. It has been noticed by us that Muhammad Sharif complainant (PW-2) tried to cover up such delay by stating that Shahbaz died on his way to Hospital after 30 to 45 minutes of the occurrence; after his death the dead body was brought back to the village; police reached the place of occurrence in the evening and postmortem was conducted at about 5.30 p.m., but this part of statement of the complainant is not in line with the statement of Jafar Ali Khan SI/I.O (CW-4) because this witness does not say that dead body was brought back in the village and then it was dispatched to the mortuary from there, rather from the tone and the tenor of his statement, it clearly depicts that dead body was sent to the dead house from the hospital and then he proceeded to the place of occurrence, conducted spot inspection, collected blood-stained earth and also performed allied functions. Dead body was escorted by Tasawar Hayat 6286/C (PW-6) but this witness did not depose that the dead body was dispatched from the place of occurrence. The prosecution story on the particular aspects becomes further gloomy when we see that according to Ali Akbar (PW-3) the police reached at the place of occurrence at about 3.30/4.00 p.m., police remained at the place of occurrence for 15 minutes and dead body had already been sent to mortuary. Therefore, it is visibly clear that statements of prosecution witnesses are neither consistent nor render corroboration to each other. Though it has come in the evidence that billiard club was owned by Akram and was run by Pervaiz Merasi, thus, they could be natural witnesses but neither they were joined in the investigation, as nothing of the sort has been found in the statements of any of the Investigating Officers, nor were produced in the Court during trial.

7. As regards recovery of crime weapon, it is true the crime empty of pistol .30 was collected by Jafar Ali Khan SI/IO (CW-3) from the place of occurrence and subsequently on 02.04.2014 as deposed by Muhammad Bilal SI/IO (CW-3) a pistol .30 bore was got recovered by Javed alias Jaidi (accused/appellant) from residential room of his house, but the PFSA report (Ex.PF) does not advance the prosecution case for the reason that it is only with regard to functionality test or mechanically operating condition of such weapon and because of lack of sufficient suitable corresponding microscopic markings, no opinion could be given whether the crime empty collected from the spot had been fired from said weapon or not. Similarly, the metallic piece was examined but was not found suitable for comparison. Thus, this piece of evidence remains inconsequential.

8. So for as motive is concerned, we are mindful of the fact that some throw about previous quarrel is available in the deposition of PWs yet no FIR as alleged of previous quarrel was brought on the record, however, at times the motive works as a double edged weapon. Depending on the facts and circumstances of the case, it can be a reason for commission of the crime and at the same time it can also form basis for their false implication. In any case, since the testimonies of witnesses of ocular account have been disbelieved, the motive part is least important to be given any weightage.

9. For what has been discussed above, in the instant case the prosecution has totally failed to establish the charge against the accused/appellant beyond any shadow of doubt and it is trite that to extend benefit of doubt to an accused person, it is not necessary that there should be several circumstances creating doubt, rather one reasonable doubt is sufficient to acquit an accused. This principle was expounded by august Supreme Court of Pakistan in the cases reported

as “Najaf Ali Shah case vs. The State” (2021 SCMR 736) in the following words:

“It is a well settled principle of law that for the accused to be afforded this right of the benefit of the doubt it is not necessary that there should be many circumstances creating uncertainty and if there is only one doubt, the benefit of the same must got to the petitioner."

Consequently, appeal is allowed and the accused/appellant is acquitted of the charge. He shall be released forthwith if not required in any other case. The case property, if any, shall be disposed of in accordance with law and the record of the trial Court be sent back immediately.

Murder Reference is answered in the negative.

Sentence of death is not confirmed.

(R.A.)  Appeal allowed