PLJ 2023 Cr.C. (Note) 37
Testimony of witness--
----It is a well settled law by now that if a set of witnesses is disbelieved to extent of some accused, it cannot be believed to extent of rest of accused facing same trial without their being any independent and strong corroboration. [Para 10] A
2022 SCMR 393.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 374--Pakistan Penal Code, (XLV of 1860), Ss. 302(b), 148 & 149--Qatl-e-amd--Conviction and sentence--Ocular account and medical evidence--Recovery of weapon--Motive--Benefit of doubt-- Prosecution couldn't prove motive as alleged in private, complaint through cogent and convincing evidence--Motive is never considered as a corroborative piece of evidence rather it is only a circumstance which may lead to commission of an offence--There is no independent and strong corroborative evidence available on record to justify conviction of appellant when co-accused with similar role of causing fatal injury on person of deceased was acquitted and his acquittal remained unchallenged--Prosecution has failed to prove its case against appellant' beyond reasonable doubt--Held: It is established principle of law that for extending benefit of doubt, it is not necessary that there should be several circumstances, rather one reasonable doubt is sufficient to acquit an accused, not as a matter of grace but as of right--Appeal allowed.
[Para 10, 12 & 13] B, C & D
2007 SCMR 486 and 2019 SCMR 274.
Ch. Nazeer Hussain, Advocate for Appellant.
Mr. Arshad Ali Farooqi, Deputy Prosecutor General for State.
Nemo for Complainant.
Date of hearing: 27.4.2022.
PLJ 2023 Cr.C. (Note) 37
[Lahore High Court, Lahore]
Present: Shehram Sarwar Ch., and Ali Zia Bajwa, JJ.
SARDAR KHAN--Appellant
versus
STATE--Respondent
Crl. A. No. 224277-J & M.R. No. 222 of 2018, heard on 27.4.2022.
Judgment
Ali Zia Bajwa, J.--Through this single judgment, we intend to decide Crl. Appeal No. 224277-J/2018 titled 'Sardar Khan vs. The State' filed by Sardar Khan appellant against his conviction and sentence and Murder Reference No. 222/2018 titled 'The State vs. Sardar Khan' forwarded by the learned trial Court under Section 374, Cr.P,C. for confirmation or otherwise of death sentence awarded to the convict as these are arising out of one and the same judgment of the learned trial Court.
2. Sardar Khan son of Yaar Muhammad, caste Pathan, resident of Dera Sardar Khan Jandanwala, Tehsil Kallur Kot, District Bhakkar (hereinafter 'appellant') along with Bashir Khan and Abdul Sattar (both since acquitted) was involved in case FIR No. 256/2017, dated 13.09.2017, offences under Sections 302, 148, 149, PPC, registered with Police Station Jandanwala. Being aggrieved with the investigation carried out by local police, the complainant preferred to file direct complaint against accused persons titled:-
"Sana Ullah Khan
vs.
Sardar Khan, etc. "
under Sections 302, 148, 149, PPC. On filing of complaint, learned trial Court after recording preliminary/cursory statements of the prosecution witnesses, issued process against the accused/respondents. After recording of evidence and taking into consideration the material available on record, learned trial Court, vide judgment dated 28.04.2018, acquitted Bashir Khan and Abdul Sattar co-accused, however, while concluding that charge against the appellant was proved beyond reasonable doubt, convicted and sentenced him as under:
Ø Under Section 302(b), PPC, sentenced to death as Taz'ir with direction to pay Rs. 5,00,000/-as compensation to legal heirs of the deceased in terms of Section 544-A, Cr.P.C. to be recovered as arrears of land revenue and in case of default in payment thereof, to undergo S.I. for six months.
3. Precisely facts of the case as narrated in the private complaint (Exh.PK) lodged by Sana Ullah Khan son of Ahmed Khan, caste Pathan (PW-7) are that he is resident of Pulli Aghar Khan Jandanwala and involved in zamindara. On 04.04.2016 Mazhar (bhanja of the complainant) and Naseer son of Sardar Khan met a roadside accident in which Naseer was seriously injured who subsequently died and in this regard case FIR No. 112/2016, dated 04.04.2016, offences under Sections 337, 279, 427, PPC, was registered at Police Station Kallur Kot. With the intervention of respectables of the locality the matter was patched up; however, the case was pending adjudication before learned trial Court and fixed for 13.09.2017 for recording statements qua compromise. On that day, in order to attend the Court proceedings, at 6:30 a.m. the complainant along with his brother Asmat Ullah, Ahmed Khan alias Khani son of Aman Ullah, Abid Khan son of Asmat Ullah while riding on motorcycles reached at Dera Sardar Khan Wala. After alighting from motorcycle Asmat Ullah went to call Sardar Khan etc. to proceed towards the Court. Accused (1) Sardar Khan, (2) Wazeer Khan, (3) Bashir Khan, (4) Abdul Sattar, (5) Muhammad Aslam, (6) Javed, (7) Inayat Ullah, (8) Muhammad Akram, (9) Alam Khan, (10) Taj and two unknown accused persons armed with fire-arms had already ambushed. All the accused raised lalkara that Asmat Ullah should not go alive. The appellant raised lalkara that due to the act of Asmat Ullah his son died and made a fire shot with his pistol .30-bore upon Asmat Ullah hitting on left side of his chest. Second fire shot was made by Bashir Khan hitting Asmat Ullah underneath the neck on left side, who after sustaining injuries fell down on the ground. The accused persons by making firing fled away from the scene of occurrence. Asmat Ullah died at the spot. The complainant alleged that the accused persons after due planning had already shifted their household articles and cattle-head to some unknown place.
Motive behind the occurrence was that Naseer Khan son of Sardar Khan was injured in case FIR No. 112/2016 dated 04.04.2016 under Sections 337, 279, 427, PPC, Police Station Kallur Kot, who subsequently died. Due to that grudge the accused persons committed the occurrence.
4. Muhammad Rafi S.I. (CW-1) recorded statement of the complainant and dispatched it to the Police Station through Zakir Baig, (sic) for registration of formal FIR. He prepared injury statement (Exh.PF), drafted inquest report (Exh.PG) and dispatched dead body to mortuary for autopsy through Ameer Abdullah 480/C (PW-2). He prepared rough site-plan of the place of occurrence (Exh.PN). He also took into possession blood stained soil vide recovery memo Exh.PJ. He recorded supplementary statement of the complainant and secured motorcycle No. 1243 (P-4) and motorcycle No. 3532 vide recovery memo Exh.PI and Exh.PL respectively. After post-mortem examination he took into possession last worn clothes of the deceased viz. qameez (P-1) and shalwar (P-2) along with phial (P-3) vide recovery memos Exh.PA and Exh.PB. On the direction of the Investigating Officer and pointing out of the PWs, on 14.09.2017, Muhammad Shafique Khan, Draftsman (PW-4) took rough notes of the palce of occurrence and thereafter prepared scaled site-plan (Exh.PC and Exh.PC/1), which was made part of the file. On 19.11.2017, the appellant was arrested in this case. During the course of interrogation, in pursuance of his disclosure, on 27.11.2017, he led to the recovery of pistol .30-bore (P-5), which was taken into possession vide recovery memo Exh.PM. After conclusion of investigation, Investigating Officer prepared and filed report under Section 173, Cr.P.C. However, the complainant filed private complaint.
5. The learned trial Court after recording cursory statements of the prosecution witnesses, issued process against the accused. The appellant along with acquitted co-accused was indicted vide order dated 16.04.2018 to which he pleaded not guilty and claimed trial. Prosecution, in order to establish its case against the appellant, produced nine prosecution witnesses while learned trial Court also examined Muhammad Rafi, S.I. as CW-1.
6. Sana Ullah Khan, complainant (PW-7) and Ahmad Khan (PW-8) are eye-witnesses of the case. Muhammad Shafique Khan, Draftsman (PW-4) prepared scaled site-plan of the place of occurrence. Dr. Asad Khan Niazi (PW-6) conducted post-mortem examination over the dead body. Investigation in this case was conducted by Muhammad Rafi, S.I. (CW-1). Statements of rest of the prosecution witnesses, more or less, are formal in nature.
7. After completion of the prosecution evidence, statement of the appellant under Section 342, Cr.P.C. was recorded by the learned trial Court. He professed his innocence and pleaded false implication in the case. Upon completion of trial, the learned trial Court found the prosecution case proved to the hilt against the appellant, thus, convicted and sentenced him as mentioned and detailed above, however, Bashir Khan and Abdul Sattar, co-accused were acquitted of the charges.
8. Arguments heard, record perused.
9. Prosecution in order to prove its case relied upon ocular account, medical evidence, recovery and motive.
Ocular account and medical evidence
10. According to private complaint (Exh.PK) appellant made a straight fire shot with pistol .30-bore, which hit on left side of chest of Asmat Ullah deceased. Second fire shot was made by Bashir Khan co-accused (since acquitted), which hit the deceased on lower part of neck on left side. Dr. Asad Khan Niazi (PW-6) conducted post-mortem examination over the dead body and observed the following injuries:-
"1. 1 cm x 1 cm, fire-arm entry wound on the front of left side of chest, 3 cm from left nipple, 14 cm from base of neck.
2A. 1 cm x lcm entry wound on the front of left side of chest, 1 cm below left clavicle and 11 cm from Injury No. 1.
2.B. Exit wound of Injury No. 1.5 cm x 1.5 on the back side of chest. 2 cm below right scapula, 10 cm from vertibruecola. One metallic foreign body was recovered from the dead body, signed, sealed and handed over to the police."
Bare perusal of statement of the doctor reproduced supra reflects that injuries ascribed to the appellant and acquitted co-accused Bashir Khan were found present on the dead body. Admittedly the occurrence took place in broad daylight and the parties were previously known to each other. However, it has been straightway noticed by us that Bashir Khan co-accused, who was attributed injury below the neck of deceased was acquitted of the charge by the learned trial Court. During the course of arguments learned Deputy Prosecutor General confirmed that there is no appeal against his acquittal. Admittedly role of Bashir Khan co-accused is identical to that of the present appellant. Moreover, according to opinion given by the doctor after post-mortem examination, both injuries (Injury No. 1 attributed to the appellant and Injury No. 2 ascribed to Bashir Khan co-accused) were grievous and sufficient to cause death individually and collectively. Not challenging the acquittal recorded in favour of Bashir Khan co-accused, in the above circumstances, creates serious doubt qua the sanctity of the prosecution witnesses. Moreover, it is a well settled law by now that if a set of witnesses is disbelieved to the extent of some accused, it cannot be believed to the extent of rest of the accused facing the same trial without their being any independent and strong corroboration.[1] Moreover, in a recent judgment handed down in the case of Pervaiz Khan and another vs. The State reported as 2022 SCMR 393 the Apex Court has ruled down as under:
"So there is nothing on record to distinguish the role of the present appellants from the role of those accused who have been acquitted by the trial Court and their acquittal has been maintained by the High Court and further their acquittal was never challenged before this Court. Due to the above circumstances, the conviction and sentence of appellants is not sustainable on the same set of evidence, which was found doubtful to the extent of three acquitted co-accused."
The next crucial question is whether there is any independent and strong corroboration available on the record, which can be considered sufficient to uphold the conviction of appellant Sardar Khan.
Recovery
11. During the course of investigation on 27.11.2017 the appellant got recovered pistol .30-bore (P-5), which was sent for forensic analysis. However, as no crime empty was collected by the Investigating Officer at the time of spot inspection, the report of Punjab Forensic Science Agency (Exh.PS) reflects that it was found to be in mechanical operating condition. Thus, in absence of any matching report, recovery of pistol .30-bore is straightway inconsequential and of no avail to the prosecution case.
Motive
12. In the crime report, as well as, while filing the private complaint, it was specifically mentioned that on 04.04.2016 Mazhar (bhanja of the complainant) and Naseer (son of Sardar Khan appellant) met a roadside accident in which said Naseer received serious injuries, which proved fatal. The matter was patched up by intervention of respectables of the locality; however, the case was pending before the learned trial Court. In order to take Sardar Khan etc. for appearing in the Court to make statements qua compromise on the fateful day when Asmat Ullah reached their house, the accused committed his murder. However, admittedly occurrence pertaining to motive took place on 04.04.2016 while the deceased was murdered on 13.09.2017 and the whole file is silent whether during the intervening period any untoward incident ever occurred inter-se the parties. Hence, we are not convinced that why, after such a long period, appellant, would plan to murder the deceased on account of death of his son in a roadside accident which according to bare reading of the private complaint had already been patched up. We, therefore, are persuaded to hold that prosecution couldn't prove motive as alleged in the private, complaint through cogent and convincing evidence. Moreover, motive is never considered as a corroborative piece of evidence rather it is only a circumstance which may lead to the commission of an offence. Reliance can be placed on Akbar Ali vs. The State-2007 SCMR 486, wherein it was observed by the apex Court as under:
"It is also a settled law that the existence of motive/enmity is neither a substantive nor a direct evidence. It is not corroborative piece of evidence either. The motive/enmity is only a circumstance which may lead to the commission of an offence. It is a starting point for committing a crime but under no circumstances it can be taken as an evidence."
In the aforementioned circumstances we are compelled to hold that there is no independent and strong corroborative evidence available on the record to justify the conviction of the appellant when co-accused Bashir Khan with similar role of causing fatal injury on the person of deceased was acquitted and his acquittal remained unchallenged.
13. All the above narrated facts and circumstances when evaluated on the yardstick of judicial prescriptions laid down in various judgments, reflect that the prosecution has failed to prove its case against the appellant' beyond reasonable doubt. It is established principle of law that for extending benefit of doubt, it is not necessary that there should be several circumstances, rather one reasonable doubt is sufficient to acquit an accused, not as a matter of grace but as of right. Respectful reliance can be placed on catena of judgments[2] of apex Court.
14. In consequence of the aforementioned discussion, Crl. Appeal No. 224277-J/2018 tilted 'Sardar Khan vs. The State' is allowed. Judgment dated 28.04.2018 passed by the learned trial Court is set aside and the appellant is acquitted of the charge. He is directed to be released forthwith if not required in any other case.
15. Murder Reference No. 222/2018 forwarded by the learned trial Court in terms of Section 374, Cr.P.C. for confirmation of death sentence awarded to the convict fails, which is answered in negative. Death sentence is not confirmed.
(A.A.K.) Appeal allowed
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