PLJ 2023 Cr.C. (Note) 13
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 376(3)--Conviction and sentence--Challenge to--Benefit of doubt--Qatl-e-amd--If appellant was empty handed and complainant party was comprising of two male members then as to why appellant was not apprehended by them at time of occurrence, thus, said PW had not given any plausible reasoning qua his presence at alleged time and place of occurrence--He is, therefore, not only chance witness but also an interested witness as such his evidence is not free from doubt--So withholding of such an important witness in peculiar circumstances of this case without any justifiable cause leads Court to draw an adverse inference against prosecution with purview of Article 129 (g) of Qanun-e-Shahadat Order, 1984 that had he been produced before trial Court, he may have not supported prosecution version--Statement of alleged victim has not been recorded in accordance with article 59 of Qanoon-e-Shahadat Act, 1984--Although, maternal aunt appeared as guardian along with (PW.6) at time of her statement before trial Court but she was an interested witness and cannot be relied upon--In this way, statement of victim (PW.6) is not worthy of reliance--No DNA report is available on file and under circumstances of case, appellant cannot be squarely linked with commission of offence—Held: It is settled proposition of law that prosecution has to stand its own legs but miserably failed to discharge its obligatory duty of proving its case against appellant up to hilt--Prosecution story is not believable and prosecution has failed to prove guilt of appellant beyond shadow of doubt--Further held: It is firmly settled by Hon’ble Supreme Court of Pakistan that many circumstances creating doubt in prosecution story are not required rather a single circumstance creating doubt is enough to acquit accused--Appeal allowed. [Para 7, 9, 10, 11 & 13] A, D, E, F & G
2015 SCMR 1142, 2010 SCMR 846, 2012 SCMR 327,
2020 PCr.LJ 1243, 2019 MLD 1707, 2019 SCMR 1920 and
1995 SCMR 1345 ref.
Statement of Witness--
----Principle--It is cardinal principle of law that any statement’ improved during trial is not worth relying, which is also deprecated by principle enunciated in two salutary judgments by august Supreme Court of Pakistan. [Para 8] B
1993 SCMR 550.
Statement of Witness--
----The statement of any witness improved at trial is not worth relying rather such improvement creates serious doubt about his veracity and credibility. [Para 8] C
2010 SCMR 385, 2019 SCMR 1920, 2021 SCMR 810.
Benefit of doubt--
----In case of doubt, benefit thereof must accrue in favour of accused as matter of right and not of grace. [Para 13] H
2009 SCMR 230.
Mr. Nasir Mehboob Tiwana, Advocate for Appellant.
Mr. Moeen Ali, DPG for State.
Syed Afzal Shah Bukhari, Advocate for Complainant.
Date of hearing: 17.11.2021.
PLJ 2023 Cr.C. (Note) 13
[Lahore High Court, Lahore]
Present: Muhammad Tariq Nadeem, J.
NASRULLAH--Appellant
versus
STATE--Respondent
Crl. A. No. 57367 & Crl. Rev. No. 59577 of 2020,
decided on 17.11.2021.
Judgment
Nasrullah, appellant was tried by the learned trial Court in case FIR No. 278 dated. 01-08-2014 in respect of offence under Section 376, PPC registered at Police Station Mureedwala, Samundri and at the conclusion of trial vide judgment dated 17-10-2020 he was convicted and sentenced as under:
Under Section 376 (3), PPC for commiting zina bil jabr with Mst. Samabia Bibi and sentenced to undergo life imprisonment with fine of Rs. 30,000/- in default thereof to further undergo 03-month S.I. He was further directed to pay an amount of
Rs. 200,000/- to the victim as compensation amount. However, the benefit of Section 382-B, Cr.P.C. was extended in his favour.
2. The appellant has filed the titled appeal against his conviction and sentence, whereas, a criminal revision has been preferred by Arshad Mehmood, complainant for enhancement of sentence of the appellant. Since common question of law and facts are involved, therefore, all these matters are being disposed of by means of this single judgment.
3. The prosecution story set forth in FIR (Ex.PA), chalked out on the basis of written application (Ex.PB) of Arshad Mehmood, complainant (PW.4) is that he (PW.4) was permanent resident of Chak No. 479-GB and farmer by profession. On 30-07-2014 at about 11:15 p.m. he went to Shorkot for some work. In his absence his 14/15 years old niece went to the cattle shed/Haveli for watering the cattle. The father of girl (his brother) worked at
4. I have heard the learned counsel for the parties at length; have given my anxious consideration to their arguments and have minutely scanned the record.
5. In order to determine, whether the prosecution has established the guilt to the hilt, to answer the said question, I propose to weigh the prosecution evidence and defence version in the scales of justice, keeping in view the prescribed law and further keeping in view the contentions of both the sides in juxta position.
6. It is not denied that Arshad Mehmood, complainant (PW.4) was not an eye-witness of the alleged occurrence and the whole prosecution case is structured upon the depositions of Muhammad Rafique (PW.5) and Mst. Samabia Bibi, victim (PW.6).
7. Firstly, I would weigh the evidence of Muhammad Rafique (PW.5), who was the alleged eye witness of the occurrence, however, the Court has noted that the presence of the above-said eye-witness at the spot at the relevant time was not natural. It was, therefore, mandatory for the said witness to justify his presence at the place of occurrence at the relevant time through some cogent reason but the supra mentioned PW has failed to give any plausible reasoning qua his presence at place of occurrence at the relevant time. According to the story of FIR (Ex.PA), on hearing the hue and cry of Mst. Samabia Bibi, victim (PW.6) Muhammad Rafique (PW.5) and Muhammad Waqar (given up PW) attracted at the spot and witnesses the occurrence and on their arrival Nasrullah, appellant fled away from the place of occurrence through ladder but the said version of the prosecution case is not acceptable to a prudent mind as appellant is an aged person and there was no allegation against the appellant that he was armed with any weapon at the time of occurrence. It is further noteworthy that as per prosecution case, the complainant party was comprising of two male witnesses and the victim. It is, therefore, not understandable that if the appellant was empty handed and the complainant party was comprising of two male members then as to why the appellant was not apprehended by them at the time of occurrence, thus, the said PW had not given any plausible reasoning qua his presence at the alleged time and place of occurrence. He is, therefore, not only the chance witness but also an interested witness as such his evidence is not free from doubt. The Hon’ble Supreme Court of Pakistan in the case of “Mst. Sughra Begum and another vs. Qaiser Pervez and others” (2015 SCMR 1142) at para No. 14, observed regarding the chance witnesses as under:-
“14. ... A chance witness, in legal parlance is the one who claims that he was present on the crime spot at the fateful time, albeit, his presence there was sheer chance as in the ordinary course of business, place of residence and normal course of events, he was not supposed to be present on the spot but at a place where he resides, carries on business or runs day to day life affairs. 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. True that in rare cases, the testimony of chance witness may be relied upon, provided some convincing explanations appealing to 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.”
8. I have also noted with grave concern that the witness namely Muhammad Rafique (PW.5) has made blatant and dishonest improvement to his earlier statement. He (PW.5) during his cross-examination admitted that he had recorded in his examination-in-chief that they asked the accused what he was doing. He himself had seen the occurrence and give deposition before the Court. The relevant portion of his statement is reproduced as under:-
“... I had recorded my statement before the police in the ahata on 01-08-2014. It is correct that what I have stated today, had also stated to police Confronted with Ex.hDA where it is not so recorded. It is correct that I had stated the occurrence before the grandfather of Smabia Bibi confronted with Exh.DA where it is not so recorded ...”
For the above reasons and keeping into consideration the facts and circumstances of this case, I am not inclined to believe Muhammad Rafique (PW.5) as trathful witness and I am clear in my mind that the deposition made by him before learned trial Court is highly discrepant and unworthy of reliance. Due to the dishonest improvements, made in his statement of supra mentioned PW, I am of the view that the said PW is not truthful witness and his evidence is not reliable. It is cardinal principle of law that any statement’ improved during trial is not worth relying, which is also deprecated by the principle enunciated in two salutary judgments by august Supreme Court of Pakistan. In the case of “Saeed Ahmed Shah vs. The State” (1993 SCMR 550), it has been held that the statement of any witness improved at trial is not worth relying rather such improvement creates serious doubt about his veracity and credibility. Similar view was taken in another case reported as “Muhammad Rafique and others vs. The State and others “ (2010 SCMR 385). Reference can also be made from the cases titled as “Muhammad Javed vs. The State” (2019 SCMR 1920), and “Khalid Mehmood and another vs. The State and others” (2021 SCMR 810).
9. It is also worthwhile noticeable that according to the prosecution’s own showings, on hearing the hue and cry of victim girl, Muhammad Rafique (PW.5) along with Muhammad Waqar (given up PW) came at the spot and witnessed the occurrence but the said Muhammad Waqar has not been produced by the prosecution, who was independent witness. So withholding of such an important witness in the peculiar circumstances of this case without any justifiable cause leads the Court to draw an adverse inference against the prosecution with the purview of Article 129 (g) of Qanun-e-Shahadat Order, 1984 that had he been produced before the learned trial Court, he may have not supported the prosecution version. Reliance is placed on the esteemed judgments of the Hon’ble Supreme Court of Pakistan in cases of “Riaz Ahmad versus The State” (2010 SCMR 846) and “Khalid @ Khalidi and 2 others versus The State” (2012 SCMR 327), wherein a similar view has been discussed. Under the above circumstances of the case and following the wisdom laid down by the Apex Court of the country in the afore-referred judgments, it is not safe to rely on the evidence of alleged Muhammad Rafique (PW.5) as the same does not inspire confidence.
10. Now, I would like to weigh the statement of Mst. Samabia Bibi (PW.6), the alleged victim, she was deaf and dumb and for recording her statement, learned trial Court summoned Muhammad Ismail Habib and Sakhawat Ali, experts, J.E.S.T from Faisalabad. They were given time to have a sitting with the victim, so that, they may be able to assist the Court but after 30 minutes, the experts apprised the learned trial -Court that the victim is an illiterate person, therefore, she is unable to completely understand their signals and feeling shy to explain the incident. Subsequently, at the request of learned ADPP victim’s maternal aunt Mst. Zahida Parveen had appeared as guardian and Sakhawat Ali, Expert from J.E.S.T,
11. I have further noted that Mst. Samabia Bibi, victim (PW.6) was medically examined on 02-08-2014 at 02:00 p.m. i.e. with the delay of almost three days. After going through the narration of MLC (Ex.PE) of the victim Mst. Samabia Bibi (PW.6) and statement of Doctor Sara Akram (PW.9), it divulges that there was no mark of violence on any part of the body of the victim. Furthermore, she (PW.9) during her examination-in-chief stated as under:
“... there was no cuts tears holes broken button orziper. No staining with blood urine, faces, vomit, semen. No staining with non-biological material ------------
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No evidence of resistance, hymen was completely ruptured, admitting one finger loose, rim of hymen was present. Menstrual blood was present. No evidence of seminal stain. No history of any illness, pregnancy, abortion or any particular disease. Rest of the systemic examination was unremarkable except she has slurred speech and slow mentation. Clothes, 8 high vaginal swabs were handed over to police after packing and sealing. No investigation were advised.”
The said Doctor Sara Akram, PGR, Medical Unit, III, Allied Hospital, Faisalabad (PW.9), during her cross-examination deposed that the cloth of the victim was not stained with semen and blood. Relevant portion of her statement is reproduced as under:
“... It is correct that the worn clothes were not stained with semen and blood. Worn clothes were not torn. It is correct that the report of PFSA was presented to me with objection that medical examination of the victim was conducted during menstruation period. It is correct that we had not sent the samples parcel to PFSA, again. It is correct that my final examination is based upon medical findings of the examination of the victim. It is correct that I had made final opinion without consulting the DNA analysis report of PFSA, volunteered no report of DNA analysis was presented to me for final opinion ...”
It is noteworthy that no DNA report is available on the file and under the circumstances of the case, the appellant cannot be squarely linked with the commission of the offence. Reliance is placed upon the case laws titled as “Muhammad Afzaal vs. The State” (2019 MLD 1707) and “Muhammad Javed vs. The State” (2019 SCMR 1920).
12. Now, I take up the version of the appellant disclosed by him in his statement recorded under Section 342, Cr.P.C. wherein in answer to a question “why this case had been lodged against you and why the PWs deposed against you?, appellant replied as under:
“... This case was registered against me due to enmity with Zulfiqar, relative of the complainant, who was murdered before registration of this case was I pointed out the name of the accused. PWs are relatives of the complainant, therefore, they deposed against me.”
I have noted that Arshad Mehmood, complainant (PW.4) during his cross-examination stated as under:
“... It is correct one Zafar Iqbal was murdered prior to this occurrence. It is correct that deceased Zafar Iqbal was father in law of the father of victim/Smabia. The FIR of the murdered of Zafar Iqbal was registered against the Zulfiqar (Smabia’s father) and Asghar.
Similarly, Muhammad Rafique (PW.5) during his cross-examination deposed in line with the statement of Arshad Mehmood, complainant (PW.4). In such situation, false implication of the appellant, due to the murder enmity, cannot be ruled out.
13. I have considered all the aspect of this case and have come to this irresistible conclusion that only the oral assertion of the alleged victim remains behind, which is neither supported by her initial medical examination nor by any other substantial piece of evidence. It is settled proposition of law that prosecution has to stand its own legs but miserably failed to discharge its obligatory duty of proving its case against the appellant up to the hilt. I have, therefore, come to a definite conclusion that the prosecution story is not believable and the prosecution has failed to prove the guilt of the appellant beyond the shadow of doubt. It is firmly settled by the Hon’ble Supreme Court of Pakistan that many circumstances creating doubt in the prosecution story are not required rather a single circumstance creating doubt is enough to acquit the accused. To fortify the above view, I place reliance on the case of “Tariq Pervez vs. The State” (1995 SCMR 1345), wherein the Hon’ble Supreme Court of Pakistan has observed as under:
“5. ... The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right.”
The Hon’ble Supreme Court of Pakistan while reiterating the same principle in the case of “Muhammad Akram vs. The State” (2009 SCMR 230) observed that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace.
14. For the foregoing reasons, Criminal Appeal No. 57367 of 2020 is allowed and Nasrullah, appellant is acquitted of the charge by extending benefit of doubt in his favour. He is in jail, be released forthwith if not required in any other case.
15. As a natural corollary, criminal revision filed by Arshad Mahmood, complainant for enhancement of sentence of appellant is dismissed.
(A.A.K.) Appeal allowed
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