PLJ 2022 Cr.C. (Note) 140
Circumstantial evidence--
----Benefit of doubt--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, PLJ 1999 SC 1018.
Delay in reporting crime--
----Inordinate delay in setting machinery of law in motion speaks volumes against veracity of prosecution version. [Para 4] B
2019 SCMR 274.
Last seen evidence--
----The story of last seen cooked up by prosecution is improbable and does not appeal to a prudent mind--Even otherwise last seen evidence is a weakest type of evidence unless corroborated with some other piece of evidence which is conspicuously missing in this case. [Para 4] C
PLJ 2008 SC 687 and PLD 2018 SC 813.
Identification parade--
---- Holding of a joint identification parade of multiple accused persons in one go has been disapproved by Hon’ble Supreme Court of Pakistan in a recent judgment passed. [Para 4] D
2017 SCMR 1189.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 364, 302(b) & 392--Conviction and sentenced, challenge to--Benefit of doubt--Identification parade--Medical evidence--Last seen evidence--Circumstantial evidence--Delay in reporting crime--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 appellant implicated in this case--Prosecution evidence is doubtful in nature, therefore, there is no need to discuss same which is exculpatory in nature--Prosecution could not prove its case against appellant 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 appellant--Appeal allowed.
[Para 4, & 6] E, F & G
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] H
2009 SCMR 230.
Rai Ashfaq Ahmad Kharal, Advocate for Appellant.
Mr. Muhammad Ahmad Saeed, Deputy Prosecutor General for State.
Rana Muhammad Majid and Rana Mushtaq Ahmad, Advocates for Complainant.
Date of hearing: 20.4.2022.
PLJ 2022 Cr.C. (Note) 140
[Lahore High Court, Lahore]
Present: Shehram Sarwar Ch., J.
NASIR alias NASRI alias MOCHAH--Appellant
versus
STATE--Respondent
Crl. A. No. 276-J of 2016, heard on 20.4.2022.
Judgment
Nasir alias Nasri alias Mochah (appellant) was tried by learned Addl. Sessions Judge Lahore in case FIR No. 399 dated 13.04.2011, offence under Sections 302, 392, 365 and 411, PPC, registered at Police Station Chung District Lahore. Vide judgment dated 27.02.2016 passed by learned trial Court, the appellant was convicted under Section 364, PPC and sentenced to life imprisonment. He was also convicted under Section 392, PPC and sentenced to ten years R.I. The appellant was further convicted under Section 302(b), PPC and sentence to imprisonment for life with a further direction to pay Rs. 3,00,000/- (rupees three 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 S.I. Assailing the above conviction and sentence, 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 Sharif Masih, Complainant (PW.3) is that on 12.04.2011 at about 11:30 his son Aslam Masih alias Bhutto left the house on Suzuki Cultus Car. At about 2:30 p.m. he informed through telephone that he was at mouza Khara Pind District Sheikhupura, thereafter, the mobile phone of Aslam Masih became switched off. It was further alleged in the FIR that the complainant had strong suspicion that his son has been abducted.
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 Aslam Masih alias Bhutto (deceased) allegedly took place on 12.04.2011 whereas the matter was reported to the police on 13.04.2011. The distance between police station and the place of occurrence is nine kilometers. There is a delay of about one day 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 appellant. No one had seen the appellant while killing Muhammad Aslam alias Bhutto (deceased). The role played by the appellant in the incident in issue had not been brought on record. Moreover, the dead-body of deceased was not recovered at the instance of the appellant. The prosecution case is mainly based upon the evidence of last seen furnished by Muhammad Babar (PW.1) and Ashraf Masih (PW.2). It was their claim that on 12.04.2011 at 11:30 they went to Adda Bye Pass Thokar Niaz Baig; Aslam Masih alias Bhutto (deceased) was present in his Cultus car; two persons came and hired the taxi of Aslam Masih alias Bhutto. Admittedly, the said fact has been concealed by the complainant party in the FIR. Moreover, both these PWs have not given any plausible reason for their arrival at Adda Bye Pass Thokhar Niaz Baig on 12.04.2011. The story of last seen cooked up by the prosecution is improbable and does not appeal to a prudent mind. Even otherwise last seen evidence is a weakest 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). Moreover, the Hon’ble Supreme Court of Pakistan in its judgment titled as “Muhammad Abid vs. The State and another” (PLD 2018 Supreme Court 813) has given an exhaustive view about the theory of last seen which is reproduced as under:
“5. ... The theory of last seen together is one where two persons are ‘seen together’ alive and after an interval of time, one of them is found alive and the other dead. If the period between the two is short, presumption can be drawn that the person alive is the author of the other’s death. Time gap between the sighting and the occurrence should be such as to rule out possibility of somebody else committing the crime. The circumstance of the deceased being last seen in the company of the accused is not by itself sufficient to sustain the charge of murder. There must be evidence to link the accused with the murder of his companion, such as incriminating facts as recovery, strong motive and the proximate time when they were last seen together and the time when the deceased was killed. Last seen evidence as circumstantial evidence must be incompatible with the innocence of the accused and should be accepted with great caution. It must be scrutinized minutely so that no plausible conclusion should be drawn therefrom except guilt of the accused.
6. The foundation of the “last seen together” theory is based on principles of probability and cause and connection and requires 1. Cogent reasons that the deceased in normal and ordinary course was supposed to accompany the accused. 2. Proximity of the crime scene. 3. Small time gap between the sighting and crime 4. No possibility of third person interference 5. Motive. 6. Time of death of victim. The circumstance of last seen together does not by itself necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectively between the accused and the crime.”
The identification parade conducted in this case carries no value in the eye of law because, as per testimony of Rana Sajid Safdar (PW.10), the same was held jointly in which the appellant and his co-accused namely Muhammad Hanif alias Hanifa (since dead) had been made to sit jointly along with other dummies. Holding of a joint identification parade of multiple accused persons in one go has been disapproved by the Hon’ble Supreme Court of Pakistan in a recent judgment passed in case titled “Gulfam and another versus The State” (2017 SCMR 1189). So far as alleged recoveries of mobile phone and driving license belonging to the deceased at the instance of appellant are concerned the same do not advance the case of prosecution because in the FIR it was not the case of complainant that the deceased was having both these things with him at the time of departing his house. The alleged recovery of .30 bore pistol at the instance of appellant is of no avail to the prosecution because the same was not used during the incident. Furthermore, 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 appellant implicated in this case. Reliance is placed on case law titled as “Muhammad Saleem vs. Shabbir Ahmad and others” (2016 SCMR 1605).
5. As far as the defence plea taken by the appellant in his statement under Section 342, Code of Criminal Procedure is concerned, since the prosecution evidence is doubtful in nature, therefore, there is no need to discuss the same which is 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 appellant 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 appellant. 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 appeal in hand filed by Nasir alias Nasri alias Mochah (appellant) is allowed, convictions and sentences awarded to him vide judgment dated 27.02.2016 passed by the learned trial Court are set aside and the appellant is acquitted of the charge levelled against him while extending him benefit of doubt. Nasir alias Nasri alias Mochah, 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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