PLJ 2022 Cr.C. 443
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conviction and sentence--Challenge to--Qatl-e-amd--Benefit of doubt--Corroborative piece of evidence--Medical evidence--Ocular account--Single doubt weak case--Prosecution has failed to substantiate motive against appellant--Alleged recovery of .12 bore repeater at instance of appellant does not advance case of prosecution because report of PFSA is simply to effect that same was in working order--Medical evidence may only 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 names of assailants--Alleged abscondance of appellant is only corroborative piece of evidence and relevant only if primary evidence i.e. ocular account inspires confidence which is not situation in this case--Prosecution evidence is shaky in nature and cannot be relied upon by maintaining convictions/sentences of appellant--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--Appeal was allowed.
[P. 447] A, B & D
1995 SCMR 599.
Burden of Proof--
----Duty of prosecution--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. [P. 447] C
Mr. Muhammad Shafique Awan, Advocate for Appellant.
Mr. Ali Hassan, Addl. Prosecutor General for State.
Mian Muhammad Ramzan, Advocate for Complainant.
Date of hearing: 26.10.2021.
PLJ 2022 Cr.C. 443
[Lahore High Court, Lahore]
Present: Shehram Sarwar Ch., J.
CHRISTOPHER QAYYUM--Appellant
versus
STATE and another--Respondents
Crl. A. No. 1683 of 2015, heard on 26.10.2021.
Judgment
Christopher Qayyum (appellant) was tried by learned Addl. Sessions Judge-I, Gojra in case FIR No. 523 dated 02.11.2007, offence under Sections 302, 324, 109 and 34, PPC, registered at Police Station Saddar Gojra District Toba Tek Singh. Vide judgment dated 24.08.2014 passed by 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. 5,00,000/- (rupees five lakh only) as compensation under Section 544-A, Code of Criminal Procedure, to the legal heirs of deceased and in default whereof to further undergo six months simple imprisonment. The appellant has also been convicted under Section 324, PPC and sentenced to seven years R.I. Both the sentences of the appellant were ordered to run concurrently with benefit of Section 382-B, Cr.P.C. Assailing the above convictions and sentences, the appellant has filed the appeal in hand.
2. Prosecution story, as set out in the FIR (Ex.PD/1) registered on the written application (Ex.PD) of Wilson Javaid, complainant (PW.8) is that he was complainant in case FIR No. 157/2007 under Sections 452, 337-H(2), 148 and 149, PPC Police Station Saddar Gojra wherein Nadeem paternal nephew of complainant was an eye-witness, registered against Christopher Qayyum (appellant) etc. and the appellant got pre-arrest bail from the Court of learned Sessions Judge, Toba Tek Singh and the next date of hearing was 30.10.2007. The accused used to restrain the complainant party from pursuing that case. On 30.10.2007 at around 6.45 a.m. the complainant along with his son Shalif Javaid on one motorcycle and Nadeem along with Salwater Farooq on another motorcycle were going from Gojra to Toba Tek Singh and when they reached near Garden Tayyab Shah in the area of Chak No. 426/JB, Christopher Qayyum (appellant) along with an unknown co-accused both armed with .12 bore repeater guns stopped the complainant party by crossing their motorcycles on link Road. The appellant and his co-accused raised lalkara that they have reached and would teach them a lesson for pursuing the case. The appellant made a straight fire on Nadeem hitting on his right thigh, who fell down. The unknown co-accused keeping his gun on the right knee of Nadeem made a fire, which went through and through. The complainant tried to rescue Nadeem but the appellant fired at him with repeater which landed on his right thigh and went through
and through, who fell down. Salwater Farooq and Shalif beseeched
the appellant side and saved their lives. The accused fled away on their motorcycle while brandishing their weapons and extending threats.
3. Arguments heard, record perused.
4. The occurrence in this case allegedly took place on 30.10.2007 at 6:45 a.m. whereas the matter was reported to the police on 01.11.2007 at 11:55 p.m. The distance between police station and the place of occurrence is eight miles. There is a delay of about seventeen hours and ten minutes in reporting the crime to the police without there being any plausible explanation. It is worth mentioning here that while appearing before the learned trial Court both the witnesses of ocular account namely Wilson Javed, complainant (PW.8) and Shalif Javed (PW.9) did not utter even a single word about the above said delay. Therefore, I hold that this inordinate delay in setting the machinery of law in motion speaks volumes against the veracity of prosecution version. Ocular account in this case consists of Wilson Javed, complainant (PW.8) and Shalif Javed (PW.9). In the FIR as well as before the learned trial Court it was the case of complainant that Christofer Qayyum (appellant) made a fire upon Nadeem (deceased) which landed on his right thigh. The unknown accused while keeping his gun on the right knee of Nadeem made a fire, which went through and through. The complainant (PW.8) has stated in his cross examination that “Iqbal alias Faisal s/o Gardas resides in our village. I had nominated said Iqbal as an accused of this case on 28.02.2013.” Similarly Shalif Javed (PW.9) has stated in his cross-examination that “We had nominated Iqbal suspecting him as an un-known accused but he was found innocent”. Likewise, the following portion of cross- examination of Muhammad Arshad S.I (PW. 11) is relevant which is reproduced as under:
“Complainant Wilson Javed, eye-witnesses Shalif Javed and Salwater Farooq appeared before me on 04.03.2013 and disclosed before me that Iqbal alias Faisal S/o Gurdas accused had injured Nadeem (since deceased). On 08.03.2013 Wilson Javed, Shalif Javed and Salwater Farooq again appeared before me and made the above said statement. During investigation it transpired that the motorcycle used in the occurrence was of Javed Lail. It is correct that it transpired during investigation that Javed Lail was armed with repeater and was also present at the place of occurrence and had fired at the deceased”.
The above extracts of cross-examination of prosecution witnesses reflect that the complainant party was not certain about the actual culprit of the occurrence. This argument of the learned Law Officer that presence of complainant cannot be doubted at the place of occurrence due to the injuries on his person has no substance because merely the injury on the body of a person would not stamp him/her a truthful witness. Reliance is placed on case law titled as “Amin Ali and another vs. The State” (2011 SCMR 323). So far as statement of Nadeem (deceased) allegedly recorded by him before Munir Ahmed S.I. (PW.10) in Allied Hospital, Faisalabad is concerned, in the application (Exh.PK) drafted by Munir Ahmad S.I. (PW.10) in the name of Medical Officer, Allied Hospital, Faisalabad seeking clarification whether Nadeem, injured at that time, was fit for recording his statement or not and at the bottom of said application the Medical Officer wrote that the patient was fit for statement only. Surprisingly, in the said application the name of doctor and his stamp were not affixed. Moreover, the dying declaration is a statement of a person without test of cross-examination and is a weak type of evidence and its credibility certainly depends upon the authenticity of the record and the circumstances under which it is recorded and rule of criminal administration of justice is that the dying declaration like the statement of an interested witness requires close scrutiny and is not to be believed merely for the reason that dying person is not expected to tell a lie. In the present case the manner in which the statement of Nadeem was recorded by Munir Ahmad S.I. (PW.10). It would seriously effect its correctness and consequently could not be considered worthy of any credit to be relied upon as dying declaration Motive behind the occurrence was that Wilson Javed (PW.8) was complainant in case FIR No. 157/2007 under Sections 452, 337-H(2), 148 and 149, PPC Police Station Saddar Gojra wherein Nadeem (deceased) was an eye-witness, registered against Christopher Qayyum (appellant) etc. and the appellant got pre-arrest bail from the Court of learned Sessions Judge, Toba Tek Singh and the next date of hearing was 30.10.2007. The accused used to restrain the complainant party from pursuing that case and due to the said grudge the appellant along with his co-accused committed the incident. Admittedly, motive is double edged weapon because if it could be a reason for the commission of a crime then at the same time it (motive) could be a reason for false involvement of an accused. Furthermore, no independent witness qua motive was joined by police in investigation or produced by prosecution before the learned trial Court during trial. Therefore, I hold that prosecution has failed to substantiate motive against the appellant. The alleged recovery of .12 bore repeater at the instance of appellant does not advance the case of prosecution because the report of PFSA is simply to the effect that the same was in working order. The medical evidence may only 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 names of the assailants. Reliance is placed on “Ata Muhammad and another versus The State” (1995 SCMR 599). The alleged abscondance of the appellant is only corroborative piece of evidence and relevant only if the primary evidence i.e. ocular account inspires confidence which is not the situation in this case. Therefore, I hold that the prosecution evidence is shaky in nature and cannot be relied upon by maintaining the convictions/sentences of the appellant.
placed on the case law reported as “Muhammad Akram versus The State” (2009 SCMR 230).
7. For the foregoing reasons, the appeal in hand filed by Christopher Qayyum (appellant) is allowed, convictions and sentences awarded to him vide judgment dated 24.08.2014 passed by the learned Addl. Sessions Judge, Gojra are set aside and the appellant is acquitted of the charges levelled against him while extending him benefit of doubt. Christopher Qayyum, appellant is in jail. He shall be released forthwith if not required to be detained in any other case.
(A.A.K.) Appeal allowed
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