PLJ 2023 Cr.C. (Note) 54
Testimony of witness--
----Testimony of chance witnesses require cautious scrutiny and was not to be accepted unless they give satisfactory explanation of presence at or near place of occurrence at relevant time. [Para 5] A
PLD 2021 SC 600.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Qatl-e-amd--Conviction and sentence--Challenge to--Motive--Testimony of witness--Delay in FIR--Recovery--Corroborative piece of evidence--Motive is double edged weapon because if it could be a reason for commission of a crime then at same time it (motive) could be a reason for false involvement of an accused--The recovery is merely a corroborative piece of evidence and relevant only if primary evidence i.e. ocular account inspires confidence which is not situation in this case--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 appellant implicated in this case--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--In instant case, prosecution remained failed to discharge its responsibility of proving case against appellant--Appeal allowed.
[Para 6 & 8] B, C & D
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 8] E
2009 SCMR 230.
Mr. Asghar Ali Gill and Ms. Amara Safdar, Advocates for Appellant.
Sh. Muhammad Nauman Siddiq, Deputy Prosecutor General for State.
Mr. A.D. Dahar, Advocate for Complainant.
Date of hearing: 8.9.2022.
PLJ 2023 Cr.C. (Note) 54
[Lahore High Court, Lahore]
Present: Shehram Sarwar Ch., J.
SAMRAN BABAR--Appellant
versus
STATE and another--Respondents
Crl. A. No. 57592 of 2019, heard on 8.9.2022.
Judgment
Samran Babar (appellant) along with his co-accused namely Muhammad Zakria, Muhammad Arif, Khalid Mehmood, Arshad Ali alias Acha alias Ashraf and Farzand Ali was tried by learned Addl. Sessions Judge, Faisalabad in case FIR No. 442 dated 11.07.2015 offence under Sections 302, 34 and 109, PPC registered at Police Station Chak Jhumra District Faisalabad for committing murder of Muhammad Saleem, brother of the complainant. Vide judgment dated 28.06.2019, 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. 3,00,000/-(rupees three lakh only) as compensation under Section 544-A, Code of Criminal Procedure, to the legal heirs of the deceased and in default whereof to further undergo six months simple imprisonment. Benefit of Section 382-B, Cr.P.C. was extended to him. Through the same judgment, Muhammad Zakria, Muhammad Arif, Khalid Mehmood, Arshad Ali alias Acha alias Ashraf and Farzand Ali, co-accused of the appellant were acquitted of the charge and no appeal 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 conviction and sentence, the appellant has filed the appeal in hand.
2. Prosecution story, as set out in the FIR (Ex.PF) registered on the written application (Ex.PE) of Muhammad Amin, complainant (PW.6) is that on 11.07.2015 at around 6:00 p.m. he (complainant) along with Muhammad Saleem (brother), Muhammad Hanif and Muhammad Siddique (paternal uncle) was present in the fields for cutting crop. Suddenly, Samran Babar (appellant) armed with carbine, Adnan Babar (since P.O.) armed with .30 bore pistol, Zakria and Khalid came there on two motorcycles. Zakria and Khalid raised a lalkara to teach a lesson to Muhammad Saleem for having animosity with them and asked to kill him as he (Muhammad Saleem) was pursuing the cases against them. Upon which, the appellant made fires with his carbine, which landed on left thigh, knee and ankle of Muhammad Saleem. Adnan Babar fired with his pistol at Muhammad Saleem hitting on his right thigh and ankles, who fell on the ground after sustaining injuries. The accused persons while brandishing their weapons fled away towards Sangla Road. Muhammad Saleem was taken in injured condition to the THQ Hospital, Jhumra and due to precarious condition the doctor referred him to the Allied Hospital, where he succumbed to the injuries. It was alleged in the FIR that Farzand Ali and Muhammad Arif hatched conspiracy of this incident whereas Ashraf made a tip of presence of Muhammad Saleem in the fields. Motive behind the occurrence as alleged in the FIR was that a case FIR No. 334/2014, under Section 324, PPC was registered against Muhammad Saleem (deceased) and other relatives at Police Station Sahianwala, in which he was on bail and was pursuing the cases and due to that grudge, the appellant along with his co-accused committed murder of the deceased.
3. Arguments heard, record perused.
4. The occurrence in this case allegedly took place on 11.07.2015 at 6:00 p.m. whereas the matter was reported to the police on the same night at 10:00 p.m. The distance between police station and the place of occurrence is 1½ kilometers. There is a delay of about four hours in reporting the crime to the police without there being any plausible explanation. It is also worth mentioning here that while appearing before the learned trial Court both the witnesses of ocular account namely Muhammad Amin, complainant (PW.6) and Muhammad Siddique (PW.7) did not utter even a single word about the above said delay. 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). Moreover, there is noticeable delay in conducting autopsy of the dead-body of deceased. According to testimony of Muhammad Sattar (PW.8), the time that elapsed between death and postmortem examination was about ten hours. 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 postmortem 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 Muhammad Amin, complainant (PW.6) and Muhammad Siddique (PW.7). The presence of both these witnesses on the spot at the time of incident is doubtful in nature because they did not receive even a scratch during the incident. Moreover, they allegedly saw the incident from a close distance but I failed to understand that in the presence of both these PWs who were closely related to Muhammad Saleem, how such tragedy with deceased could happen without any intervention on their part to rescue him. In the FIR as well as before the learned trial Court it was the case of prosecution that soon after the incident the complainant and other PWs shifted Muhammad Saleem in injured condition to THQ Hospital Chak Jhumra and the doctor of said hospital referred him to Allied Hospital due to his precarious condition. Neither the doctor who first examined Muhammad Saleem deceased in injured condition on 11.07.2015 at THQ Hospital, Chak Jhumra was produced in the witness box nor any MLR regarding the medico legal examination of Muhammad Saleem deceased in injured condition and his referral to Allied Hospital, Faisalabad was produced in the prosecution evidence. There is another intriguing aspect of the case, that both the witnesses of ocular account namely Muhammad Amin, complainant (PW.6) and Muhammad Siddique (PW.7) have stated during the course of their cross-examination that their clothes were stained with blood during taking care of injured but they did not hand over their blood stained clothes to the Investigating Officer. Had they been present at the place of occurrence, they must have produced the clothes to the I.O. to enable him to take into possession of the same, hence both the witnesses of ocular account were not reliable and there is likelihood that they had not witnessed the occurrence. Reliance is placed on case law titled as “Mst. Mir Zalai vs. Ghazi Khan and others” (2020 SCMR 319). The delay in the FIR as well as postmortem examination of the dead-body of deceased also casts doubt about their presence on the spot at the time of incident. Moreover, the above said PWs have not given any plausible reason for their presence on the spot at the time of incident. The reason assigned by both these PWs was to the effect that they had purchased kanals millet crop at Faisalabad Road behind CNG Pump and they along with the deceased were present on the spot for the purpose of cutting fodder but both these PWs did not produce any proof regarding purchase of millet crop during the course of investigation. The houses of both these PWs were far away from the place of occurrence. They have no place of business or agricultural land near the place of occurrence. Therefore, I hold that both these PWs were chance PWs. In the case of “Naveed Asghar and 2 others vs. The State” (PLD 2021 SC 600), the apex Court held that testimony of chance witnesses require cautious scrutiny and was not to be accepted unless they give satisfactory explanation of presence at or near the place of occurrence at the relevant time. Therefore, I hold that presence of both the eye-witnesses namely Muhammad Amin, complainant (PW.6) and Muhammad Siddique (PW.7) on the spot at the time of incident is not free from doubt.
6. Motive behind the occurrence as alleged in the FIR was that a case FIR No. 334/2014, under Section 324, PPC was registered against Muhammad Saleem (deceased) and other relatives at Police Station Sahianwala, in which he was on bail and was pursuing the cases and due to that grudge, the appellant along with his co-accused committed murder of the deceased. Admittedly, motive is double edged weapon because if it could be a reason for the commission of a crime then at the same time it (motive) could be a reason for false involvement of an accused. Moreover, no independent witness qua motive was associated by police during investigation or produced before the learned trial Court by the prosecution, during the trial and same has rightly been disbelieved by the learned trial Court in Paragraph No. 46 of the impugned judgment. The alleged recovery of .12 bore carbine at the instance of appellant is immaterial because the report, of Punjab Forensic Science Agency qua said weapon is simply to the effect that the same was examined and found to be in mechanical operating condition with no safety features. Moreover, the appellant allegedly got recovered .12 bore carbine from an open place, accessible to everyone. Furthermore, the recovery is merely a corroborative piece of evidence and relevant only if the primary evidence i.e. ocular account inspires confidence which is not the situation in this case. Moreover, 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 the appellant implicated in this case. Reliance is placed on case law titled as “Muhammad Saleem vs. Shabbir Ahmad and others” (2016 SCMR 1605). Therefore, I hold that the evidence furnished by the prosecution is shaky in nature and cannot be relied upon for maintaining the convictions/sentences of the appellant.
7. 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.
8. 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).
9. For the foregoing reasons, the appeal in hand filed by Samran Babar (appellant) is allowed, conviction and sentence awarded to him vide judgment dated 28.06.2019 passed by the learned Addl. Sessions Judge, Faisalabad are set aside and the appellant is acquitted of the charge levelled against him while extending him benefit of doubt. Samran Babar (appellant) is in jail. He shall be released forthwith if not required to be detained in any other case.
10. 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 co-accused of the appellant namely Adnan Babar who was proclaimed offender at the time of pronouncement of the impugned judgment.
(A.A.K.) Appeal allowed
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