PLJ 2022 Cr.C. (Note) 137
Chance Witness--
----Testimony of--Testimony of chance witness ordinarily is not accepted unless justifiable reasons are shown to establish his presence at crime scene at relevant time--In normal course, presumption under law would operate about his absence from crime spot--The testimony of chance witness may be relied upon, provided some convincing explanations appealing to a prudent mind for his presence at crime spot are put forth, when occurrence took place otherwise his testimony would fall within category of suspect evidence and cannot be accepted without a pinch of salt.
[Para 5] A
2015 SCMR 1142, 2016 SCMR 2021 & PLJ 2018 SC 67.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Qatl-e-amd--Conviction and sentence--Challenge to--Benefit of doubt--It is a case of circumstantial evidence--The 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 any of culprits implicated in this case--Further held: It is, by now, well established proposition of law that if crime empty is sent to Forensic Science Laboratory after arrest of accused or together with crime weapon, positive report of said Laboratory loses its evidentiary value--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 8, 9 & 11] B, C & D
2016 SCMR 1605, 2002 SCMR 1986, 2007 SCMR 525 &
2008 SCMR 707.
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 11] E
2009 SCMR 230.
Rai Bashir Ahmad, Nadeem Ibrar Shah and Rai Ishfaq Ahmad Kharal, Advocates for Appellant.
Ch. Muhammad Akram Tahir, District Public Prosecutor for State.
Nemo for Complainant.
Date of hearing: 6.4.2021.
PLJ 2022 Cr.C. (Note) 137
[Lahore High Court, Lahore]
Present: Shehram Sarwar Ch., J.
DILDAR AHMAD etc.--Appellants
versus
STATE etc.--Respondents
Crl. A. No. 2273 of 2016 & Crl. Rev. No. 75 of 2017,
heard on 6.4.2021.
Judgment
Dildar Ahmad (appellant) along with his co-accused namely Waqas Ahmad, Umar Aziz and Suleman Younas was tried by the learned Addl. Sessions Judge, Gujrat in case FIR No. 222 dated 31.03.2015, offence under Sections 302 and 34, PPC registered at Police Station Kunjah District Gujrat for the murder of Ali Raza (deceased) son of complainant. Vide judgment dated 13.12.2016 passed by the 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. 3,00,000/-(rupees three lakh only) as compensation under Section 544-A, Cr.P.C. to the legal heirs of the deceased and in default whereof to further undergo simple imprisonment for six months. Benefit of Section 382-B, Cr.P.C. was extended to the appellant. Through the same judgment, Waqas Ahmad, Umar Aziz and Suleman Younas, co-accused were acquitted of the charge and Crl. Appeal No. 102 of 2017 filed by the complainant against their acquittal was dismissed for non-prosecution vide order dated 07.10.2020. Assailing the above conviction and sentence, the appellant has filed the appeal in hand whereas the complainant has preferred Crl. Revision No. 75 of 2017 for enhancement of sentence of the appellant from life imprisonment to death and compensation amount. 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.PD/2) registered on the written application (Ex.PD) of Muhammad Waris, Complainant (PW.7) is that Ali Raza son of complainant established Naseer Millat Grammar High School, Kunjah along with Asjad Imran and said school was to be inaugurated. On 30.03.2015 at about 9.00 p.m. son of complainant apprised him that he was going to paste publication brochures of school. At around 11.40 p.m. said Asjad Imran knocked the door, the complainant opened the door and saw Asjad Imran, his mother and Khalid standing there. The complainant was informed by Asjad Imran that he was told by Khalid that he along with Ali Raza were affixing brochures of school at Nagrianwala Chowk and at about 11.00 p:m. he heard report of fire and Ali Raza fell down, smeared with blood, who was fired at by some unknown person(s). Having heard that information, the complainant along with his wife reached Nagrianwala Chowk on a motorcycle and found the dead body of their son. The appellant along with his co-accused was implicated in this case through supplementary statement/application (Ex.PH) of the complainant got recorded on 31.03.2015.
3. I have heard arguments of learned counsel for the appellant as well as the learned District Public Prosecutor for the State at a considerable length and have also gone through the record very minutely.
4. This case was got registered for the murder of Ali Raza (deceased) son of complainant regarding an occurrence, which took place on the night of 30.03.2015 at around 11.00 p.m. in the area of Nagrianwala Chowk within the territorial limits of Police Station Kunjah District Gujrat. The matter was reported to the police on the same night at 1.05 a.m. i.e. about two hours and five minutes after the incident despite the fact that the distance between the place of occurrence and the police station is just three furlongs. No convincing or plausible reason was assigned in the FIR by the complainant or stated before the learned trial Court for this inordinate delay in reporting the crime to the police. 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).
5. It was case of the complainant in the FIR that he was informed by Asjad Imran that he (Asjad Imran) was told by Khalid that he along with Ali Raza (deceased) were affixing brochures of school at Nagrianwala Chowk when he (Khalid) heard report of fire and saw that Ali Raza fell down. Both the said PWs namely Asjad Imran and Khalid were not produced rather they were given up having won over by the accused side. The case was got registered by the complainant against unknown accused(s) and the appellant was implicated in this case along with other acquitted co-accused through supplementary statement dated 31.03.2015, based on the information allegedly imparted to him (complainant) by Qaiser Mehmood (PW.8), Jamshed Arif (PW.9) and Nazim-ul-Hassan (given up PW). The ocular account in this case has been furnished before the learned trial Court by said Qaiser Mehmood (PW.8) and Jamshed Arif (PW.9), who were chance witnesses because they were neither residents of the place of occurrence nor have any place of business over there. The occurrence took place at Nagrianwala Chowk Kunjah whereas the eye-witnesses (PW.8 & PW.9) were residents of Sook Kalan and Kot Shamas respectively, which as conceded by them during their cross-examination, are situated at a distance of 27/28 kilometers and 6/7 kilometers from the place of incident, respectively. No convincing or plausible reason has been assigned by both the witnesses of ocular account for their presence on the spot and they simply stated in their examination-in-chief that they went to Gujrat in connection with some work. Moreover, it was admitted by Jamshed Arif (PW.9) during cross-examination that he has not given the reasoning of their going to Gujrat for some piece of work before the police during investigation. He further stated that neither they have informed the police regarding the occurrence at PP Kunjah nor at the police station. Likewise, Qaisar Mehmood (PW.8) admitted during cross-examination that he did not inform the police about the occurrence at the time of incident. Therefore, the stated reason for their presence near the place of occurrence never stood established on record through any evidence whatsoever. It is in this context that the testimony of chance witness ordinarily is not accepted unless justifiable reasons are shown to establish his presence at the crime scene at the relevant time. In normal course, the presumption under the law would operate about his absence from the crime spot. The testimony of chance witness may be relied upon, provided some convincing explanations appealing to a prudent mind for his presence at 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. Reliance may be placed on the case law reported as “Mst. Sughra Begum and another vs. Qaiser Pervez and others” (2015 SCMR 1142), “Muhammad Javed vs. The State” (2016 SCMR 2021) and “Gulfam and another vs. State” (PLJ 2018 SC 67). From the above circumstances, the presence of all the witnesses of ocular account on the spot at the time of occurrence is not free from doubt.
6. It was case of prosecution in the supplementary statement/ application and before the learned trial Court that first shot was made by Waqas Ahmad which landed on right side of head of Ali Raza (deceased) and the second fire shot made by the appellant hit the deceased on left side of his head. The role of causing fire-arm injury on the person of deceased was also attributed to Waqas Ahmad, co-accused of the appellant. After conclusion of trial, the learned trial Court acquitted above named co-accused of the appellant along with Umar Aziz and Suleman Younas but convicted/sentenced the appellant on the same set of evidence. Therefore, the question for determination before me is whether the evidence which has been disbelieved by the learned trial Court qua the acquitted co-accused of the appellant, can be believed against the appellant? In this regard, I am guided by the judgment of the Hon’ble Supreme Court of Pakistan reported as “Shahbaz vs. The State” (2016 SCMR 1763), wherein it was held at page 1765 as under:
“2. ... The law is settled by now that if some eye-witnesses are disbelieved against some accused persons attributed effective roles then the same eye-witnesses cannot be relied upon to the extent of the other accused persons in the absence of any independent corroboration and a reference in this respect may be made to the cases of Ghulam Sikandar and another v. Mamaraz Khan and others (PLD 1985 SC 11), Sarfraz alias Sappi and 2 others v. The State (2000 SCMR 1758), Iftikhar Hussain and others v. The State (2004 SCMR 1185) and Akhtar Ali and others v. State (2008 SCMR 6). In the case in hand no independent corroboration worth its name was available to the extent of Shahbaz appellant inasmuch as the trial Court and the High Court had disbelieved the motive set up by the prosecution, the alleged recovery of a chhurri from the custody of the appellant was inconsequential because the recovered chhurri was not stained with blood, post-mortem examination of the deadbody of Aftab Akhtar deceased was noticeably delayed as the same had been conducted in the following morning and the duration between death and post-mortem examination was recorded as about eleven hours. It appears that, time had been consumed by the complainant party and the local police in procuring and planting eye-witnesses and in cooking up a story for the prosecution. The said story of the prosecution already stands substantially disbelieved to the extent of Muhammad Abbas co-accused and we have found that the same was not free from doubt even to the extent of Shahbaz appellant.”
The above said view has been further fortified in another case titled as “Sardar Bibi and another vs Munir Ahmed and others” (2017 SCMR 344).
It is evident from perusal of the above mentioned judgments of the Hon’ble Supreme Court of Pakistan that testimony of a witness will be acceptable against one set of accused though the same has been rejected qua another set of accused facing the same trial, provided it gets some independent corroboration on material particulars of the case and in the absence of any independent corroboration qua the role attributed to an accused, he would also be entitled to acquittal.
7. No motive was set up by the prosecution in the FIR or brought before the learned trial Court. Even the learned trial Court did not find any enmity between the parties prior to the occurrence and observed in Para 26 of the impugned judgment that the prosecution has failed to prove motive against the appellant.
8. 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 any of the culprits implicated in this case. Reliance is placed on case law titled as “Muhammad Saleem vs. Shabbir Ahmad and others” (2016 SCMR 1605).
9. So far as alleged recovery of .12 bore gun (P.4) at the instance of appellant and positive report of Punjab Forensic Science Agency (Ex.PQ) are concerned, the same are immaterial because the empties were secured from the spot on 31.03.2015 and the appellant was arrested on 07.04.2015, who led to the recovery of gun on 16.04.2015 but the crime empties and the recovered gun were received in the office of Punjab Forensic Science Agency on 10.04.2015 and 28.04.2015 respectively i.e. after the arrest of appellant. It is, by now, well established proposition of law that if the crime empty is sent to the Forensic Science Laboratory after the arrest of the accused or together with the crime weapon, the positive report of the said Laboratory loses its evidentiary value. Reliance in this respect is placed on the case of “Jehangir vs. Nazar Farid and another” (2002 SCMR 1986), “Israr Ali vs. The State” (2007 SCMR 525) and “Ali Sher and others vs. The State” (2008 SCMR 707).
10. So far as version of the appellant taken by him in his statement recorded 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.
11. 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 SCMR230).
12. For the foregoing reasons, Criminal Appeal No. 2273 of 2016 filed by Dildar Ahmad (appellant) is allowed, conviction and sentence awarded to him vide judgment dated 13.12.2016 passed by the learned Addl. Sessions Judge, Gujrat are set aside and he is acquitted of the charge levelled against him while extending him benefit of doubt. The appellant is confined in jail. He shall be released forthwith if not required to be detained in any other case.
13. In view of above, Crl. Revision No. 75 of 2017 filed by the complainant for enhancement of conviction/sentence of the appellant and compensation amount imposed upon him, having no merits stands dismissed.
(A.A.K.) Appeal allowed
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