PLJ 2022 Cr.C. (Note) 131
Delay in Post-Mortem--
----It has been held repeatedly by Hon’ble Supreme Court of Pakistan that such noticeable delay is normally occasioned due to incomplete police papers necessary to be handed over to Medical Officer to conduct post-mortem examination of dead body of deceased which happens only when complainant and police remain busy in consultation and preliminary inquiry regarding culprits in such cases of unwitnessed occurrence. [Para 4] A
2011 SCMR 1190 and 2016 SCMR 1628.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conviction and sentence--Challenge to--Benefit of doubt--Qatl-e-amd--Medical evidence--No independent witness--The medical evidence only may 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 name of assailants--So far as alleged recovery of .30 bore pistol at instance of appellant is concerned same is immaterial because prosecution has failed to associate any independent witness of locality and, thus, mandatory provisions of Section 103, Cr.P.C. had flagrantly been violated in that regard--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 7, 8 & 10] B, C & D
1995 SCMR 599 and 2017 SCMR 898.
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 10] E
2009 SCMR 230.
M/s. Syed Badar Raza Gillani, Intazar Hussain Kalyar and Nighat Saeed Mughal, Advocates for Appellant.
Rai Akhtar Hussain, Deputy Prosecutor General for State.
Rana Manzar Bashir and Mr. Shehzad Khan Kakar, Advocates for Complainant.
Date of hearing: 13.10.2021.
PLJ 2022 Cr.C. (Note) 131
[Lahore High Court, Lahore]
Present: Sadaqat Ali Khan and Shehram Sarwar Ch., JJ.
MUHAMMAD KHADIM and another--Appellants
versus
STATE etc.--Respondents
Crl. A. No. 96 & M.R. No. 582 of 2017, heard on 13.10.2021.
Judgment
Shehram Sarwar Ch., J.--Muhammad Khadim (appellant) alongwith his co-accused namely Muhammad Irfaq alias Makha, Muhammad Abid and Saqib Ali was tried by the learned Addl. Sessions Judge, Lahore in case FIR No. 130 dated 06.02.2011, offence under Sections 302 and 34, PPC, registered at Police Station Ghazi Abad District Lahore for the murder of Khalil Ahmad son of the complainant. Vide judgment dated 11.01.2017 passed by the learned trial Court, the appellant has been convicted under Section 302(b), PPC and sentenced to death, with a further direction to pay
Rs. 2,00,000/- (rupees two lakh only) 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. Through the same judgment, learned trial Court acquitted Muhammad Irfaq alias Makha, Muhammad Abid and Saqib Ali co-accused of the appellant by extending them benefit of doubt and no appeal against their acquittal was filed either by the State or the complainant. Assailing the above conviction and sentence, the appellant has filed the appeal in hand whereas the learned trial Court has sent Murder Reference No. 582 of 2017 for confirmation or otherwise of the appellant’s sentence of death, as required under Section 374 of the Code of Criminal Procedure. Since both these matters have arisen out of the same judgment, therefore, the same are being decided together through this single judgment.
2. Prosecution story, as set out in the FIR (Ex.PA/2) registered on the application (Ex.PA) of Abdul Ghani, complainant (PW.1) is that his paternal nephew Amir Raza was a property dealer and he had established an office at Khawaja Ehsan Road. Few days ago, he purchased a plot from Muhammad Irshad and paid him token money. When the said fact came into the knowledge of Khadim etc who told Amir Raza that if he purchased or sold the said plot it would not be better for him. On 06.02.2011 at about 11:30 a.m. Khadim Hussain made a telephonic call to Amir Raza and stated that he had come to his office whereupon Amir Raza alongwith Khalil Ahmad went there. Khadim Hussain was standing there who took Amir Raza and Khalil Ahmad with him at Naqeebi Chowk Khawaja Ahmad Eshan Road. When they reached there Irfaq alias Makha and Abid armed with fire-arms were present there. On seeing them, they raised lalkara that he be done to death. Khadim Hussain made a straight fire with pistol hitting on left armpit of Khalil Ahmad who fell on the ground. The accused persons fled away from the spot on pickup while brandishing their fire-arms. The occurrence was witnessed by Amir Raza and Abdul Aziz.
3. We have heard learned counsel for the parties as well as the learned Deputy Prosecutor General for the State at a considerable length and have also gone through the record very minutely.
4. Undeniably, the post-mortem examination of the dead-body of Khalil Ahmad (deceased) was conducted about twelve hours after his death. Abdul Ghani, complainant (PW.1) has stated in his cross-examination that the FIR was lodged after the post-mortem examination. It has been held repeatedly by the Hon’ble Supreme Court of Pakistan that such noticeable delay is normally occasioned due to incomplete police papers necessary to be handed over to the Medical Officer to conduct the post-mortem examination of dead body of the deceased which happens only when the complainant and police remain busy in consultation and preliminary inquiry regarding the culprits in such cases of unwitnessed occurrence. Reliance is placed on case law titled as “Irshad Ahmed vs. The State” (2011 SCMR 1190) and “Nazeer Ahmed vs The State” (2016 SCMR 1628).
5. Ocular account in this case consists of Abdul Ghani, complainant (PW.1) and Amir Raza (PW.2). According to the FIR the occurrence was witnessed by Amir Raza and Abdul Aziz. It is not mentioned in the FIR that Abdul Ghani, complainant (PW.1) was present on the spot at the time of incident and that he had witnessed the occurrence. Abdul Ghani (PW.1) in his examination-in-chief claimed to be an eye-witness of the occurrence but he has not given any plausible reason for his presence on the spot at the time of incident. The complainant while appearing before the learned trial Court in order to strengthen the prosecution made dishonest improvements, he was confronted with his previous statement and the improvements were brought on record. The following portion of cross-examination of complainant is relevant which is reproduced as under:
“It is incorrect that I have not got recorded in my complaint Ex.PA that on 6.2.2011 at about 11.30 a.m. I reached Naqeebi Chowk. Confronted with Ex.PA where is not so recorded but recorded that today on 6.2.2011 at 1.30 p.m. Khadim Hussain made a phone to Amir. It is incorrect that I have not recorded in my complaint Ex.PA that all the accused were armed with fire-arm and abusing to Khalil Ahmad. Confronted with Ex.PA, where it is not so recorded. It is incorrect that in my complaint Ex.PA, I have not got recorded that all the persons raised lalkara. Confronted with Ex.PA where it is not so recorded but recorded that both of them raised lalkara. It is incorrect that in my statement Ex.PA, I have not got recorded that I myself have seen the occurrence. Confronted with Ex.PA where it is recorded that Amir Raza and Abdul Aziz witnessed the occurrence”.
Similarly, Asghar Ali, Inspector (PW15) has stated in his cross-examination that “it is correct that I investigated the case and Abdul Ghani complainant is not eye-witness of the occurrence as per Exh.FA. It is correct-that Abdul Ghani complainant is not Mentioned in site-plan Exh.PE from point A to C position.” Moreover, Amir Raza (PW.2) has not stated in his examination-in-chief that complainant (PW.1) was present on the spot at the time of incident. Therefore, we hold that complainant (PW.1) was not an eye-witness of the occurrence. So far as testimony of Amir Raza (PW.2) is concerned, the presence of said P W on the spot at the time of incident is doubtful in nature because the said PW being brother-in-law (behnoi) of Khalil Ahmad (deceased) did not make even an abortive attempt to save the deceased from the clutches of the appellant. His conduct was, thus unnatural as no person would let anybody to commit murder of his brother-in-law (behnoi) in his presence. The said PW while appearing before the learned trial Court made dishonest improvements, he was confronted with his previous statement and the improvements were brought on record. Perusal of statement of said PW reveals that he was a chance witness. His house and office have not been shown in the scaled site-plan close to the place of occurrence. Before the learned trial Court he has not given any plausible reason for his presence on the spot at the time of incident. The testimony of chance, witness may be relied upon, provided some convincing explanations appealing to a prudent mind for his presence on the crime spot are put forth, when the occurrence took place otherwise his testimony would fall within the category of suspect evidence and cannot be accepted without a pinch of salt Therefore, we hold that evidence furnished by Amir Raza (PW.2) is shaky in nature and cannot be relied upon for maintaining the conviction of the appellant on a capital charge.
6. Motive behind the occurrence was that few days ago Amir Raza (PW.2) purchased a plot from Muhammad Irshad and paid him token money. When the said fact came into the knowledge of Khadim etc who told Amir Raza that if he purchased or sold the said plot it would not be better for him, Asghar Ali, Inspector (PW.15) has stated in his cross-examination that “it is correct that motive behind the present occurrence was a dispute regarding a plot as Khadim Hussain accused sold said plot to Amir Raza P. W. through Irshad”. If the motive part of incident is admitted as true then Amir Raza would have been the prime target of the appellant instead of the deceased who was present on the spot at the time of incident. No independent witness qua motive was joined by police in investigation or produced by prosecution before the learned trial Court during trial Therefore, we hold that prosecution has failed to substantiate motive against the appellant.
7. The medical evidence only may 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 name of the assailants. Reliance is placed on “Ata Muhammad and another versus The State” (1995 SCMR 599).
8. So far as alleged recovery of .30 bore pistol at the instance of appellant is concerned the same is immaterial because the prosecution has failed to associate any independent witness of the locality and, thus, the mandatory provisions of Section 103, Cr.P.C. had flagrantly been violated in that regard. Reliance may be placed on case law titled as “Muhammad Ismail and others vs. The State” (2017 SCMR 898). Moreover, the appellant allegedly got recovered the said “weapon from the house of his paternal uncle Shoukat which was not in exclusive possession of the appellant. Furthermore, as per prosecution’s own case the appellant made only one fire-shot on the spot but surprisingly four crime empties were received in the office of Punjab Forensic Science Laboratory for comparison.
9. As far as the defence plea taken by the appellant in his statement under Section 342 of the 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.
10. We 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. Reliance is placed on case law titled as “Muhammad Akram versus The State” (2009 SCMR 230).
11. For the foregoing reasons, the appeal in hand is allowed, conviction and sentence awarded to the appellant vide judgment dated 11.01.2017 passed by the learned Addl Sessions Judge Lahore are set aside and the appellant is acquitted of the charges levelled against him while extending him benefit of doubt. Muhammad Khadim is in jail. He shall be released forthwith if not required to be detained in any other case.
12. Murder Reference No. 582 of 2017 is answered in the NEGATIVE and the sentence of death awarded to Muhammad Khadim (convict) is NOT CONFIRMED.
(A.A.K.) Appeal allowed
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