PLJ 2022 Cr.C. (Note) 128
Circumstantial of evidence--
----Benefit to accused--It is settled by now that in such like cases every circumstance should be linked with each other and it should form such a continuous chain that its one end touches dead-body and other neck of accused--But if chain link is missing then its benefit must go to accused. [Para 4] A
1992 SCMR 1047, 1996 SCMR 188 and PLJ 1999 SC 1018.
Delay in reporting crime--
----This inordinate delay in setting machinery of law in motion speaks volumes against veracity of prosecution version. [Para 4] B
2019 SCMR 274.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Qatl-e-amd--Conviction and sentence--Challenge to--Benefit of doubt--Medical evidence--Delay in reporting crime--Circumstantial evidence--Extra-judicial confession is always considered a weak type of evidence and it is procured at any time during investigation when there is no direct evidence available to prosecution--Medical evidence produced by prosecution was not of much avail to prosecution because murder in issue had remained unwitnessed and, thus, medical evidence could not point an accusing finger towards appellants implicated 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--Prosecution remained failed to discharge its responsibility of proving case against appellants.--Appeals allowed. [Para 4 & 6] C, D & E
2011 SCMR 1233, 2015 SCMR 155, 2016 SCMR 267, 2016 SCMR 1144 & 2016 SCMR 1605.
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. [Para 6] F
2009 SCMR 230.
Ch. Asghar Ali and Mr. Muhammad Nazir Sultan Maikan, Advocates for Appellants.
Mr. Muhammad Ahmad Saeed, Deputy Prosecutor General for State.
Nemo for Complainant.
Date of hearing: 26.4.2022.
PLJ 2022 Cr.C. (Note) 128
[Lahore High Court, Lahore]
Present: Shehram Sarwar Ch., J.
BABAR ALI and another--Appellants
versus
STATE--Respondents
Crl. A. Nos. 92482-J & 92483-J of 2017, heard on 26.4.2022.
Judgment
Babar Ali and Mst. Aamna Bibi (appellants) were tried by learned Addl. Sessions. Judge, Faisalabad in case FIR No. 83 dated 10.02.2016, offence under Sections 302, 201 and 34, PPC, registered at Police Station Madina Town District Faisalabad. Vide judgment dated 20.07.2017 passed by learned trial Court, the appellants have been convicted and sentenced as under:
“… In such circumstances, Mst. Aarnna Bibi and Babar Ali are convicted and awarded Life imprisonment each provided u/S. 302(b), PPC as Tazir. They both shall also pay sum of Rs. 200,000/- each as compensation to the legal heirs of Muhammad Waris deceased as required u/S. 544-A, Cr.P.C. which shall be recoverable as arrears of land revenue. In default thereof, they shall further undergo six months S.I. each ...”
Benefit of Section 382-B, Cr.P.C. was extended to the appellants. Assailing the above convictions and sentences, the appellants have filed the appeals in hand. Since both these matters have arisen out of the same judgment, therefore, are being decided together through this single judgment.
2. Prosecution story, as set out in the FIR (Ex.PB) registered on the application (Ex’.PA) of Muhammad Nawaz, complainant (PW.7) is that his brother Muhammad Waris alongwith his family members was residing in District Faisalabad. On 04.02.2018 Muhammad Waris came to Chiniot in connection with some demise who returned to Faisalabad in the evening. On 05.02.2016 Mst. Aamna Bibi wife of Muhammad Waris came to the house of complainant and told him that Muhammad Waris had gone to Khurrianwala for labour. On 10.02.2016 the complainant got worried because the mobile phone of Muhammad Waris was switched off. The complainant alongwith Saqlain Abbas and Qaiser went to the house of Muhammad Waris and stared his search. During search the dead-body of Muhammad Waris was recovered from a under construction house who was murdered by some unknown accused persons.
3. Arguments heard. Record perused.
4. The prosecution case hinges on the circumstantial evidence therefore, utmost care and caution is required for reaching at a just decision of the case. It is settled by now that in such like cases every circumstance should be linked with each other and it should form such a continuous chain that its one end touches the dead-body and other neck of the accused. But if chain link is missing then its benefit must go to the accused. In this regard, guidance has been sought from the judgments of the Apex Court of the country reported as “Ch. Barkat Ali vs. Major Karam Elahi Zia and another” (1992 SCMR 1047), “Sarfraz Khan vs. The State” (1996 SCMR 188) and “Asadullah and another vs. State” (PLJ 1999 SC 1018). This occurrence qua missing of Muhammad Waris (deceased) allegedly took place on 05.02.2016 whereas the matter was reported to the police on 10.02.2016. The distance between police station and the place of occurrence is three kilometers. There is a delay of about five days in reporting the crime to the police without there being any plausible explanation. It is also worth mentioning here that while appearing before the learned trial Court all the material prosecution witnesses 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. Reliance is placed on case law titled as “Altaf Hussain vs. The State (2019 SCMR 274). There was no direct evidence against the appellants. No one had seen the appellants while killing Muhammad Waris (deceased). Furthermore, the role played by the appellants in the incident in issue had not been brought on record. The dead-body of deceased was not recovered at the instance of the appellants. The prosecution case is mainly based upon extrajudicial confession of appellants allegedly made by them before Maphal Hussain (PW.8) and Nawazish Ali (PW.9). The said piece of evidence is not helpful for the prosecution because it was a joint confession allegedly made by the appellants before the above said PWs. Moreover, it is not understandable as to why the appellants made extrajudicial confession before the above said PWs despite the fact that they were not influential persons. Moreover, it does not appeal to a prudent mind as to what prompted the appellants to confess their guilt before the above said PWs because at that time, there was no evidence against the appellants regarding their involvement in this crime. Furthermore, at the time of alleged extrajudicial confession of the appellants the witnesses before whom they confessed their guilt did not try to catch hold of the appellants. The most important and natural purpose of making extra-judicial confession is to seek help from a third person and the same is usually sought from an influential person who had some authority/power in the society but in the case in hand the witnesses of extrajudicial confession was an ordinary person. Furthermore, extrajudicial confession is always considered a weak type of evidence and it is procured at any time during the investigation when there is no direct evidence available to the prosecution. Moreover, the legal worth of the extra judicial confession too is almost equal to naught, keeping in view the natural course of events, human behaviours, conduct and probabilities, in ordinary course. Needless to remark that extra judicial confession has never been considered sufficient for recording conviction on a capital charge unless it is strongly corroborated by tangible evidence coming from unimpeachable source, therefore, in my view this piece of evidence is entirely insufficient to maintain conviction on such a charge, more so, when it is badly tainted one and appears to be the job of the investigating officers who normally indulge in such like police chicanery. Reliance is placed on case laws titled as “Hamid Nadeem versus The State” (2011 SCMR 1233), “Imran alias Dully and another versus The State and others” (2015 SCMR 155), “Muhammad Nawaz and others versus The State and others” (2016 SCMR 267) and ‘Nasir Javaid and another vs The State” (2016 SCMR 1144). The medical evidence produced by the prosecution was not of much avail to the prosecution because the murder in issue had remained unwitnessed and, thus, the medical evidence could not point an accusing finger towards the appellants implicated in this case. Reliance is placed on case law titled as “Muhammad Saleem vs. Shabbir Ahmad and others” (2016 SCMR 1605). So far as alleged recoveries of kassi and khais at the instance of Aamna Bibi (appellant) are concerned, the same are immaterial because these were ordinary things, easily available in the market. As far as alleged recovery of .30 bore pistol at the instance of Babar Ali (appellant) is concerned the same does not advance the case of prosecution because the above said appellant allegedly got recovered the said pistol from an open place accessible to everyone.
5. 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 are exculpatory in nature.
6. 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).
7. For the foregoing reasons, the appeals separately filed by Mst. Aamna Bibi and Babar Ali (appellants) are allowed, convictions and sentences awarded to them vide judgment dated 20.07.2017 passed by the learned trial Court are set aside and the appellants are acquitted of the charges levelled against them while extending them benefit of doubt. Mst. Aamna Bibi and Babar Ali (appellants) are in jail. They shall be released forthwith if not required to be detained in any other case.
(A.A.K.) Appeals allowed
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