PLJ 2023 Cr.C. (Note) 49
Testimony of witness--
----It is well settled by now that when a witness improves his statement to strengthen prosecution case and moment it is concluded that improvement was made deliberately and with malafide intention testimony of such witness does not remain reliable. [Para 6] A
2010 SCMR 385 & 1993 SCMR 550.
Credibility of witness--
----It is settle law that credibility of a witness is looked with serious suspicion if his/her statement u/S. 161, Cr.P.C. is recorded with delay without offering any plausible explanation. [Para 6] B
2011 SCMR 323.
Testimony of witness--
----The Hon’ble Supreme Court of Pakistan that testimony of a witness will be acceptable against one set of accused though same has been rejected qua another set of accused facing same trial, provided it gets some independent corroboration on material particulars of case and in absence of any independent corroboration qua role attributed to an accused, he would also be entitled to acquittal.
[Para 7] C
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b) & 324--Qatl-e-amd--Challenge to--Conviction and sentence--Motive--Quarrel and grudge--Testimony of witness--Ocular account--Benefit of doubt--Medical evidence--No independent witness qua motive was joined by police in investigation or produced by prosecution before learned trial Court during trial--Prosecution has failed to prove motive against appellant--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--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--In instant case, prosecution remained failed to discharge its responsibility of proving case against appellant.
[Para 8, 9, 12] D, E & F
2017 SCMR 898 and 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 12] G
2009 SCMR 230.
M/s. Mustansar Nazar Ghugh and Nasir Mehboob Tiwana, Advocates for Appellant.
Mr. Muhammad Ahmad Saeed, Deputy Prosecutor General for State.
Ch. Kashif Ali, Advocate for Complainant.
Date of hearing: 2.12.2021.
PLJ 2023 Cr.C. (Note) 49
[Lahore High Court, Lahore]
Present: Shehram Sarwar Ch., J.
MUHAMMAD YOUSAF--Appellant
versus
STATE and another--Respondents
Crl. A. No. 2273 of 2014, heard on 2.12.2021.
Judgment
Muhammad Yousaf (appellant) along with his co-accused namely Muhammad Ramzan, Refaqat and Sarfraz was tried by learned Addl. Sessions Judge, Bhalwal in a private complaint under Sections 302, 324, 337-D, 109, 148 and 149, PPC instituted by Muhammad Zafar, complainant (PW.7) being dissatisfied with the investigation conducted by the police in case FIR No. 311 dated 24.07.2011, offence under Sections 302, 324, 109, 148 and 149, PPC, registered at Police Station Bhera District Sargodha. Vide judgment dated 03.10.2014 passed by 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. 1,00,000/-(rupees one lakh only) as compensation to the legal heirs of the deceased as required under Section 544-A, Cr.P.C. and in default thereof to further undergo six months simple imprisonment. He was also convicted under Section 324, PPC and sentenced to rigorous imprisonment for seven years with fine of Rs. 30,000/-, failing which he shall further undergo one month S.I. He was further convicted under Section 337-D, PPC and sentenced to five years R.I. with a direction to pay Arsh equal to 1/3rd of diyat i.e. Rs. 7,24,859/-and in case of non-payment of Arsh he will be treated according to Section 337-X(ii), PPC. All the sentences were ordered to run concurrently with benefit of Section 382-B, Cr.P.C. Through the same judgment, learned trial Court acquitted Muhammad Ramzan, Refaqat and Sarfraz, co-accused of the appellant and no Crl. P.S.L.A. against their acquittal was filed either by the State or the complainant, as conceded by learned Deputy Prosecutor General and learned counsel for the complainant. Assailing the above convictions and sentences, the appellant has filed the appeal in hand.
2. Prosecution story, as set out in the FIR registered on the statement (Ex.PC) of Muhammad Zafar, Complainant (PW.7) is that on 24.07.2011 at about 9:00 p.m. he (complainant) along with his brother Ahmad Khan (PW.10) and Muhammad Nazir after getting free from some personal work was returning from Bhera while passing through the chowk of Kot Mamyana whereas at some distance Muhammad Shabbir and Faisal (given up PWs) were also coming behind them. The electric bulb was lit. From the adjoining dera of Sarfraz, Muhammad Yousaf (appellant) armed with .12 bore repeater, Muhammad Ramzan, Refaqat, Sarfraz (since acquitted) and Falak Sher (since P.O.) all armed with .12 bore gun came there and raised lalkara to teach a lesson for quarrelling with them. The appellant made a fire with .12 bore repeater, which landed on the flank of Ahmad Khan (PW.10). The second fire made by the appellant was hit on the flank of Muhammad Nazir. Muhammad Ramzan fired with .12 bore single barrel gun at Muhammad Nazir, which hit on his right thigh. Refaqat made a fire with .12 bore gun hitting Muhammad Nazir on his right thigh. Falak Sher (since P.O.) made a fire with .12 bore gun, which landed inside the thigh of Muhammad Nazir. Safraz made a fire, which went amiss. Muhammad Nazir and Ahmad Khan fell on the ground in injured condition. Muhammad Nazir succumbed to the injuries on the spot. The accused persons while making firing fled away from the place of occurrence. Beside the complainant, the occurrence was witnessed by Muhammad Shabbir and Faisal. It was alleged in the FIR that the appellant committed this incident on the instigation of Rasib and Sultan Sikandar. Motive behind the occurrence as alleged in the FIR was that prior to the occurrence the appellant and Refaqat had a quarrel with Ahmad Khan (PW.10) and due to that grudge the appellant along with his co-accused committed this incident.
3. Being dissatisfied with the investigation conducted by the police, Muhammad Zafar, complainant instituted a private complaint titled as “Muhammad Zafar vs. Muhammad Yousaf and others”, on the similar facts as narrated in the FIR.
4. After recording of cursory evidence in the present case, the appellant and his co-accused Muhammad Ramzan, Refaqat, Falak Sher and Sarfraz were summoned by the learned trial Court to face the trial whereas the private complaint to the extent of Rasib Ali and Sultan Sikandar was dismissed vide order dated 27.09.2012. During trial, Falak Sher, co-accused of the appellant became fugitive from law and he was declared proclaimed offender. Copies of relevant documents were provided to them, as required under Section 265-C, Code of Criminal Procedure and formal charge under Sections 302, 324, 148 and 149, PPC was framed against them on 16.11.2012, to which they pleaded not guilty and claimed trial. After the closure of prosecution evidence, statement of the appellant under Section 342 Code of Criminal Procedure was recorded, wherein he refuted all the allegations of prosecution and professed his innocence. The appellant neither opted to appear as his own witness, in disproof of the allegations levelled against him, as provided under Section 340(2), Code of Criminal Procedure nor did he produce any defence evidence. After conclusion of the trial, the learned trial Court convicted and sentenced the appellant and acquitted his co-accused as detailed above. Hence, this appeal.
5. I have heard arguments of learned counsel for the parties as well as learned Deputy Prosecutor General for the State at a considerable length and have also gone through the record very minutely.
6. The ocular account in this case has been furnished before learned trial Court by Muhammad Zafar, Complainant (PW.7) and Ahmad Khan, injured (PW. 10). It was the case of the prosecution in the FIR that the appellant made a fire with .12 bore repeater, which landed on the flank of Ahmad Khan (PW. 10) whereas the second fire made by the appellant was hit on the flank of Muhammad Nazir (deceased). Same was the stance in the private complaint instituted by the complainant on 30.07.2012 with the delay of one year after the occurrence but there is nowhere mention either in the FIR or private complaint that as to on which flank of the deceased and injured person the fire was hit. However, in order to strength the prosecution case both the eye-witnesses of ocular account while appearing before learned trial Court improved their versions in their examination-in-chief by stating that the appellant fired with gun hitting on the right flank of Ahmad Khan, injured. Likewise, in the FIR, private complaint as well as before learned trial Court it was alleged by both the PWs that Refaqat, co-accused of the appellant made a fire with .12 bore gun hitting the deceased on his right thigh but the stance taken by them is belied by the statement of Ahmad Khan (PW. 10) recorded under Section 161, Cr.P.C. wherein no role whatsoever was assigned to him in this regard. They were confronted with their previous statements and the improvements were brought on the record. It is well settled by now that when a witness improves his statement to strengthen the prosecution case and the moment it is concluded that the improvement was made deliberately and with malafide intention the testimony of such witness does not remain reliable. While holding so I am fortified by the dictum laid down by the Hon’ble Supreme Court of Pakistan in the cases reported as “Muhammad Rafique and others versus The State and others” (2010 SCMR 385) and “Syed Saeed Muhammad Shah and another versus The State” (1993 SCMR 550). I have observed that Muhammad Zafar, complainant (PW.7) was a chance witness because he was neither resident of the place of occurrence nor has any place of business over there. Admittedly, the occurrence took place in the area of Kot Mamyana situated within the territorial jurisdiction of Police Station Bhera District Sargodha. Though the complainant (PW.7) while appearing before learned trial Court has mentioned his address of the same locality but it has been brought on record during his cross-examination that he was resident of village Chawa, which was at a distance of fifteen kilometers from the place of occurrence. No convincing or credible reason was assigned by him for his presence on the place of occurrence. Admittedly, the occurrence took place at night time and no source of light was mentioned by the complainant in the FIR, private complaint or stated by the eye-witnesses of ocular account before the learned trial Court. Even the complainant (PW.7) stated before learned trial Court during his cross-examination that there was no street light installed by the government in village Kot Mamyana where the occurrence took place. Moreover, Ahmad Khan (PW.10) allegedly sustained injury during the incident and he was medically examined on the day of occurrence i.e. 24.07.2011 but his statement under Section 161, Cr.P.C. was recorded on 12.08.2011 after nineteen days of the incident. As conceded by Saleh Muhammad, SI/I.O. (CW.2) during his cross-examination, prior to 12.08.2011 Ahmad Khan, injured (PW.10) did not join investigation of the instant case. No plausible reason whatsoever as to why he remained mum for a considerable period, has been assigned by the injured witness which casts serious doubt upon the veracity of prosecution story. It is settled law that credibility of a witness is looked with serious suspicion if his/her statement under Section 161, Cr.P.C. is recorded with delay without offering any plausible explanation. The argument of the learned DPG and learned counsel for the complainant that presence of Ahmad Khan, injured (PW.10) cannot be doubted at the place of occurrence due to the injury on his person has no substance because merely the injury on the body of a person would not stamp him/her truthful witness. Reliance is placed on case law titled as “Amin Ali and another vs. The State” (2011 SCMR 323). Therefore, considering overall circumstances of the case, I am of the view that the evidence of ocular account furnished by Muhammad Zafar (PW.7) and Ahmad Khan, injured (PW.10) is not credible and trustworthy and as such cannot be relied upon for maintaining the convictions/sentences of the appellant.
7. There is another aspect of the case. This case was registered against seven named accused persons. In the FIR, private complaint as well as before learned trial Court, it was the case of the prosecution that Muhammad Ramzan, co-accused of the appellant fired with .12 bore single barrel gun at the deceased, which hit on his right thigh whereas Refaqat, co-accused made a fire with .12 bore gun hitting the deceased on his right thigh. After conclusion of trial, the learned trial Court acquitted said co-accused having active role of causing firearm injuries on the person of deceased along with Sarfraz but convicted/sentenced the appellant for the murder of deceased. Therefore, the question for determination before me is whether the evidence which has been disbelieved 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.”
It is evident from perusal of the above mentioned judgment 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.
8. Motive behind the occurrence as alleged in the FIR, private complaint or stated before learned trial Court was that prior to the occurrence the appellant and Refaqat had a quarrel with Ahmad Khan (PW.10) and due to that grudge the appellant committed this incident. Ahmad Khan (PW.10) stated before learned trial Court in his cross-examination that ‘I had not stated before the police time, date and place of motive part of the occurrence. It is correct that I had not stated any evidence regarding the motive part of the before the police.’ Even otherwise the motive part of the incident was not reported the police by either of the parties. Moreover, no independent witness qua motive was joined by police in investigation or produced by prosecution before the learned trial Court during trial. Therefore, I hold that prosecution has failed to prove motive against the appellant.
9. So far as alleged recovery of .12 bore gun at the instance of the appellant, which was taken into possession vide recovery memo. (Ex.PB) is concerned, the same is immaterial because no crime empty was recovered from the place of occurrence and the report of Forensic Science Laboratory (Ex.PN) qua said weapon is simply to the effect that ‘the shotgun repeater of .12 bore butt and body signed is in working order in its present condition and fires semi-automatically. Moreover, 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).
10. 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).
11. 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.
12. 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).
13. For the foregoing reasons, Criminal Appeal No. 2273 of 2014 filed by Muhammad Yousaf (appellant) is allowed, convictions and sentences awarded to him vide judgment dated 03.10.2014 passed by learned trial Court are set aside and the appellant is acquitted of the charge levelled against him while extending him benefit of doubt. The appellant is in jail. He shall be released forthwith if not required to be detained in any other case.
14. Before parting with this judgment, it is clarified that the observations recorded in this judgment are relevant only for the disposal of this appeal which shall not influence the learned trial Court in any manner whatsoever in case of arrest and trial of Falak Sher, co-accused of the appellant who was proclaimed offender at the time of pronouncement of the impugned judgment.
(A.A.K.) Appeal allowed
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