PLJ 2022 Cr.C. 1208
Credibility of Witness--
----It is settled law that credibility of a witness is looked with serious suspicion if his statement under Section 161, Cr.P.C. is recorded with delay without offering any plausible explanation. [P. 1211] A
1998 SCMR 570.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conviction and sentence--Challenge to--Qatl-e-amd--Benefit of doubt--The conduct displayed by witnesses of last seen was nothing but unusual detracting from veracity of their statements--Even otherwise last seen evidence is a weak type of evidence unless corroborated with some other piece of evidence which is conspicuously missing in this case--So far as medical evidence is concerned, that same is only a supporting piece of evidence and relevant only if ocular account inspires confidence which is not situation in this case--Prosecution could not prove its case against appellants beyond any shadow of doubt--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 appellants--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 allowed. [Pp. 1211 & 1212] B, C, D & E
PLJ 2008 SC 687, PLD 2018 SC 813, 2009 SCMR 230.
Syed Nadeem Ibrar Shah, Advocate appointed as Defence Counsel at State expense for Appellants.
Mr. Ali Hassan, Addl. Prosecutor General for State.
Nemo for Complainant.
Date of hearing: 26.10.2021.
PLJ 2022 Cr.C. 1208
[Lahore High Court, Lahore]
Present: Shehram Sarwar Ch., J.
ALEEM AHMAD and another--Appellants
versus
STATE--Respondent
Crl. A. No. 331-J of 2014, heard on 26.10.2021.
Judgment
Aleem Ahmad and Yasir Ali (appellants) were tried by the learned Addl. Sessions Judge, Daska in case FIR No. 85 dated 21.02.2012, offence under Section 302, 364-A and 34, PPC registered at Police Station Moutra District Sialkot for kidnapping and murder of Husnain (deceased) paternal nephew of complainant. Vide judgment dated 30.05.2014 passed by the learned trial Court, the appellants have been convicted under Section 302(b), PPC and sentenced to imprisonment for life each, with a further direction to pay Rs. 2,00,000/- (rupees two lakh only) each as compensation under Section 544-A, Cr.P.C. to the legal heirs of deceased and in default whereof, to further undergo simple imprisonment for six months each. They appellants have also been convicted under Section 364-A, PPC and sentenced to rigorous imprisonment for seven years each. Both the sentences of the appellants were ordered to run concurrently with benefit of Section 382-B, Cr.P.C. Assailing the above convictions and sentences, the appellants have filed the appeal in hand.
2. Prosecution story, as set out in the FIR (Ex.PA) registered on the statement (Ex.PA/1) of Shoaib Mehboob, complainant (PW.4) is that on 20.02.2012 at around 3.00/3.30 p.m. Husnain paternal nephew of complainant aged about three years was playing in the street and suddenly disappeared. The complainant party started his search. Ahmad Roomi and Ijaz met the complainant party and told them that Yasir and Aleem (appellants) were taking Husnain on a motorcycle towards Wajid Abad. The complainant party kept on searching Husnain and found his dead body lying by the southern wall of Eid Gah.
3. I have heard arguments of learned counsel for the appellants as well as the learned Law Officer for the State at a considerable length and have also gone through the record very minutely.
4. Undisputedly, it was an unseen incident and there was no direct evidence against the appellants. No one had seen the appellants while killing the deceased namely Husnain. The role played by the appellants in the incident in issue had never been mentioned in the FIR or disclosed before the learned trial Court through any solid or convincing evidence. It has also never been disclosed or alleged by the prosecution in the FIR as to under what circumstances the deceased had been done to death. It was case of complainant in the FIR as well as before the learned trial Court that on 20.02.2012 at about 3.30 p.m. his paternal nephew Husnain went missing and he started his search. Ahmad Roomi (PW.9) and Ijaz Ahmad (PW.10) met him and told that the appellants were carrying Husnain on a L motorcycle towards Wajid Abad. They started his search but in vain. After that at about Sehri time, the dead body of Husnain was found lying by the southern wall of Eid Gah. It was stated before the learned trial Court that two days prior to missing of Husnain (deceased), a phone call was received through which a demand was made for payment of Rs. 50, 00, 000/-as ransom amount otherwise the kidnapper will kill Husnain after kidnapping him. The father of deceased was abroad in Saudi Arabia. The assertion of complainant regarding receiving threatening phone call was not borne on record as they neither provided the number to the police from which telephonic call was received nor they collected data of that phone number. The phone of sister-in-law (bhabhi) of complainant, who allegedly received the phone call, was also not provided to the police as the complainant stated that the same had been stolen. The deceased went missing on 20.02.2012 at about 3.30 p.m. but the matter was reported to the police through statement (Ex.PA/1) of complainant on the next day (21.02.2012) at 5.00 a.m. i.e. thirteen and a half hours after missing of the deceased and FIR (Ex.PA) was got registered at 6.00 a.m. 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 conceded during cross examination that since they themselves had been making search of Husnain, so the matter was not promptly reported to police. Though the complainant stated that the matter of missing of Husnain was reported to police at 10.00 p.m. but no proof in that regard was brought on record. 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 v. The State" (2019 SCMR 274).
5. The prosecution case is mainly based upon evidence of last seen furnished by Ahmad Roomi (PW.9) and Ijaz Ahmad (PW. 10). Before the learned trial Court, it was claimed by them that on 20.02.2012 at about 3.15/3.30 p.m. they were standing at Chowk Masjid Wala in Village Bhano Pindi when the appellants on a motorcycle were taking Husnain (deceased) towards Wajid Abad. After sometimes, the complainant came to them and informed that Husnain was missing, who told the complainant that they had seen the appellants while taking Husnain on a motorcycle. The story narrated by both the PWs appears to be improbable because they were related to the complainant as Ahmad Roomi (PW.9) belonged to his brotherhood whereas Ijaz Ahmad (PW.10) was paternal cousin of complainant as stated by them during cross examination and they allegedly saw the deceased aged about three years in the company of appellants but as conceded by them, they neither tried to stop or chase them nor inquired the appellants why they were taking Husnain (minor). Even otherwise, both the PWs allegedly saw the appellants while taking the minor (deceased) on 20.02.2012 but they got recorded their statements before the police under Section 161, Cr.P.C. on 21.02.2012 i.e. with the delay of one day. It is settled law that credibility of a witness is looked with serious suspicion if his statement under Section 161, Cr.P.C. is recorded with delay without offering any plausible explanation. Reliance is placed on case law titled as "Muhammad Khan vs Maula Bakhsh and another" (1998 SCMR 570). The conduct displayed by the witnesses of last seen was nothing but unusual detracting from the veracity of their statements. Even otherwise last seen evidence is a weak type of evidence unless corroborated with some other piece of evidence which is conspicuously missing in this case. Reliance is placed on case law titled as "Altaf Hussain vs Fakhar Hussain and another" (PLJ 2008 SC 687) and "Muhammad Abid v. The State and another" (PLD 2018 Supreme Court 813). Therefore, the statements of Ahmad Roomi (PW.9) and Ijaz Ahmad (PW.10) are of no avail to the prosecution.
6. The alleged recovery of 30 bore pistol (PW.6/2) at the instance of Yasir Ali, appellant is not much helpful for the prosecution because there was no mention of the pistol in the FIR and the same was also not used during the incident. The recovery of motorcycle Bearing No. 8371-STP is also inconsequential because of the reasons that the same was joint recovery effected at the instance of both the appellants and that no registration number of the motorcycle was mentioned in the FIR.
7. So far as medical evidence is concerned, suffice it to observe that the same is only a supporting piece of evidence and relevant only if the ocular account inspires confidence which is not the situation in this case.
8. As far as the defence pleas taken by the appellants in their statements under Section 342, Code of Criminal Procedure are concerned, since the prosecution evidence is doubtful in nature, therefore, there is no need to discuss the same which is exculpatory in nature.
9. 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 appellants 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 appellants. 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 placed on the case law reported as "Muhammad Akram versus The State" (2009 SCMR 230).
10. For the foregoing reasons, Criminal Appeal No. 331-J of 2014 filed by Aleem Ahmad and Yasir Ali (appellants) is allowed, convictions and sentences awarded to the appellants vide judgment dated 30.05.2014 passed by the learned Addl. Sessions Judge, Daska are set aside and the appellants are acquitted of the charges levelled against them while extending them benefit of doubt. The appellants are in jail. They shall be released forthwith if not required to be detained in any other case.
(A.A.K.) Appeal allowed
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