PLJ 2023 Cr.C. (Note) 39
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Qatl-e-amd--Conviction and sentence--Challenge to--Benefit of doubt--Delay in reporting crime--Motive--Alleged recovery--Alleged abscondence--Inordinate delay in setting machinery of law in motion speaks volumes against veracity of prosecution version--Hon'ble Supreme Court of Pakistan that such noticeable delay is normally occasioned due to incomplete police papers necessary to be handed over to Medical Officer to conduct post-mortem examination of dead bodies of deceased which happens only when complainant and police remain busy in consultation and preliminary inquiry regarding culprits in such cases of unwitnessed occurrence--Medical evidence may only confirm ocular account witty regard to receipt of injury, locale of injury, kind of weapon used for causing injury, duration between injury and death but it would not tell name of assailants--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--Further held: In instant case, prosecution remained failed to discharge its responsibility of proving case against appellant--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--Appeal allowed with benefit of doubt.
[Para 5, 10 & 12] A, B, E & F
2019 SCMR 274, 2011 SCMR 1190, 2016 SCMR 1628,
1995 SCMR 599 & 2009 SCMR 230.
Testimony of witness--
----It is well settled by now that when a witness improves mis-statement to strengthen prosecution case and moment it is concluded that improvement was made deliberately and with mala fide intention testimony of such witness does not remain reliable--While holding so we are fortified by dictum laid down by Hon'ble Supreme Court of Pakistan. [Para 6] C
2010 SCMR 385 & 1993 SCMR 550.
Witness--
----It is settled by now that a witness who lied about any material fact must be disbelieved as to all other facts. [Para 6] D
PLD 2019 SC 527
Mr. Kamran Bashir Mughal, Advocate/Defence Counsel appointed at State expense for Appellant.
Rai Akhtar Hussain, Deputy Prosecutor General for State.
Mr. Muhammad Mahmood Ch. Advocate for Complainant.
Date of hearing: 10.2.2021.
PLJ 2023 Cr.C. (Note) 39
[Lahore High Court, Lahore]
Present: Sadaqat Ali Khan and Shehram Sarwar Ch., JJ.
MUHAMMAD WAHEED BUTT--Appellant
versus
STATE--Respondent
Crl. A. No. 47434 & M.R. No. 407 of 2017, heard on 10.2.2021.
Judgment
Shehram Sarwar Ch., J.--Muhammad Waheed Butt (appellant) along with his co-accused namely Hafiz Muhammad Sajjad and Muhammad Yousaf was tried by the learned Addl. Sessions Judge, Lahore in case FIR No. 792 dated 25.10.2008, offence under Sections 302 and 109, PPC, registered at Police Station Harbancepura District Lahore for murder of Ijaz alias Jajji (deceased) son of complainant. Vide judgment dated 08.06.2017 passed by the learned trial Court, the appellant has been convicted under Section 302(b), PPC and sentenced to death, with a further direction to pay Rs. 5,00,000/-(rupees five 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. Through the same judgment, learned trial Court acquitted Hafiz Muhammad Sajjad and Muhammad Yousaf, co-accused of the appellant by extending them benefit of doubt and no appeal against their acquittal was filed either by the State or the complainant. Assailing the above conviction and sentence, the appellant has filed the appeal in hand whereas the learned trial Court has sent Murder Reference No. 407 of 2017 for confirmation or otherwise of the appellant's sentence of death, as required under Section 374 of the Code of Criminal Procedure. Since both these matters have arisen out of the same judgment, therefore, the same are being decided together through this single judgment.
2. Prosecution story, as set out in the FIR (Ex.PP) registered on the written application (Ex.PC) of Abdul Haq, complainant (not appeared as PW) is that on 25.05.2006 Malik Amin was murdered regarding which FIR No. 543 of 2006 was lodged against Abdul Waheed Butt etc and the trial of said case was pending in the Court of Shahid Naseer, ASJ, Lahore in which Ijaz alias Jajji and Abdul Ghaffar were the PWs. On 03.07.2008 Abdul Waheed Butt etc extended life threats to the complainant and PWs of above said case and FIR No. 751 of 2008 was registered against them at Police Station Islampura. Some days ago, Waheed Butt caused injuries to Abdul Ghaffar on the abetment of Abdul Waheed Butt owner of Shan Hotel for restraining him to give evidence in the above said murder case who was admitted in the hospital and FIR of said occurrence was registered at Police Station Habancepura. On 24.10.2008 at 8/9:00 p.m. complainant alongwith his sons namely Ijaz alias Jajji and Babar came out of the house to fetch grocery items and when they reached near the house of Waheed Butt, the accused persons namely Waheed Butt, Mohsin and Zeeshan Butt, all armed with pistols, were already present there. Zeeshan Butt raised lalkara that Ijaz alias Jajji be done to death for giving evidence against them whereupon all the three accused persons made straight firing upon Ijaz alias Jajji and fire-shots landed on different parts of his body who succumbed to the injuries on the spot. The complainant and other PWs saw the occurrence in the light of street lights. The accused persons committed this occurrence on the abetment of Abdul Waheed Butt and Ibrahim alias Bawa who were hatching conspiracy for the murder of Ijaz alias Jajji outside of Shan Hotel which was overheard by Amir alias Chand and Imran PWs.
3. After completion of investigation, report under Section 173, Code of Criminal Procedure was submitted in this case. The appellant and his co-accused were summoned by the learned Addl. Sessions Judge, Lahore to face the trial. Copies of relevant documents were provided to the appellant, as required under Section 265-C, Code of Criminal Procedure and charge was framed against them on 20,11.2012, to which he pleaded not guilty and claimed trial. Statements of the appellant and his co-accused under Section 342 of the Code of Criminal Procedure were recorded on 10.05.2017, wherein they refuted all the prosecution allegations levelled against them and professed their 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 evidence in his defence. 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 and murder reference.
4. We have heard learned counsel for the parties as well as the learned Deputy Prosecutor General for the State at a considerable length and have also gone through the record very minutely.
5. The occurrence in this case allegedly took place on 24.10.2008 at 8/9:00 p.m. whereas the matter was reported to the police on the same night at 12:05 p.m. The distance between police station and the place of occurrence is four kilometers. There is a delay of more than three hours in reporting the crime to the police without any plausible explanation. It is also worth mentioning here that while appearing before the learned trial Court Muhammad Babar (PW.8) did not utter even a single word about the above said delay. Therefore, we 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, it is mentioned in the post-mortem report (Exh.PS) that the time elapsed between death and post-mortem was 24 to 36 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 post-mortem examination of dead bodies 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).
6. Ocular account in this case consists of Muhammad Babar (PW.8). The presence of said PW on the spot at the relevant time is doubtful in nature because he did not receive even a scratch during the incident. Moreover, it was the case of said PW that he allegedly saw the incident from a close distance but we failed to understand that in the presence of said PW, who was real brother of deceased, how such tragedy with the deceased could happen without any intervention on his part to rescue the deceased. The delay in the FIR as well as post-mortem examination of the dead-body of deceased also casts doubt about his presence on the spot at the time of incident. In the FIR it was the case of prosecution that Muhammad Waheed Butt (appellant) and his co-accused namely Mohsin and Zeeshan Butt while armed with pistols made joint firing upon Ijaz alias Jajji (deceased) which landed on different parts of his body but while appearing before the learned trial Court Muhammad Babar (PW.8) changed the prosecution story by stating that only Muhammad Waheed Butt (appellant) made a straight fire upon Ijaz alias Jajji (deceased) hitting on his left leg and made its exit from right leg. We have further noted that Muhammad Babar (PW.8) while appearing before the learned trial Court, in order to strengthen the prosecution case, made dishonest improvements, he was confronted with his previous statement (Exh.DA) and the improvements were brought on record. It is well settled by now that when a witness improves mis-statement to strengthen the prosecution case and the moment it is concluded that the improvement was made deliberately and with mala fide intention the testimony of such witness does not remain reliable. While holding so we are 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). Moreover, as per contents of FIR, Muhammad Waheed Butt (appellant) alongwith his co-accused namely Mohsin and Zeeshan Butt jointly caused fire-arm injuries on the person of Ijaz alias Jajji (deceased) but during the course of investigation both the above said co-accused of the appellant were found not connected with the commission of crime. It is settled by now that a witness who lied about any material fact must be disbelieved as to all other facts. We respectfully relied upon the case law reported as "PLD 2019 Supreme Court 527" in the matter of Crl. Misc. Application No. 200 of 2019 in Crl Appeal No. 238-L of 2013 decided on 4th March, 2019. Therefore, we hold that evidence furnished by Muhammad Babar (PW.8) is shaky in nature and cannot be relied upon for maintaining the conviction/sentence of the appellant.
7. Motive behind the occurrence was that on 25.05.2006 Malik Amin was murdered regarding which FIR No. 543 of 2006 was lodged against Abdul Waheed Butt etc and the trial of said case was pending in the Court of Shahid Naseer, ASJ, Lahore in which Ijaz alias Jajji and Abdul Ghaffar were the PWs. On 03.07.2008 Abdul Waheed Butt etc extended life threats to the complainant and PWs of above said case and FIR No. 751 of 2008 was registered against them at Police Station Islampura. Some days ago, Waheed Butt caused injuries to Abdul Ghaffar for restraining him to give evidence in the above said murder case who was admitted in the hospital and FIR of said occurrence was registered at Police Station Habancepura. Undoubtedly, 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. No solid/convincing evidence qua motive part of incident was produced by the prosecution during the trial. Furthermore, no independent witness qua motive was joined by police in investigation or produced by prosecution before the learned trial Court during trial. Therefore, we hold that prosecution has failed to substantiate motive against the appellant.
8. So far as alleged recovery of 30 bore pistol at the instance of appellant is concerned, the same is immaterial because the report of Punjab Forensic Science Agency (Exh.PBB) is in the negative.
9. So far as alleged abscondance of the appellant is concerned, the same is only 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.
10. Medical evidence may only confirm the ocular account with regard to the receipt of injury, locale of injury, kind of weapon used for causing the injury, duration between the injury and the death but it would not tell the name of the assailants. Reliance is placed on "Ata Muhammad and another versus The State" (1995 SCMR 599).
11. So far as the defence plea taken by the appellant in his statement under Section 342 of the 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. We 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. Reliance is placed on case law titled as "Muhammad Akram versus The State" (2009 SCMR 230).
13. For the foregoing reasons, Criminal Appeal No. 47434 of 2017 filed by the appellant is allowed, conviction and sentence awarded to him vide judgment dated 08.06.2017 passed by the learned Addl. Sessions Judge, Lahore are set aside and the appellant is acquitted of the charge levelled against him while extending him benefit of doubt. Muhammad Waheed Butt, appellant is in jail. He shall be released forthwith if not required to be detained in any other case.
14. Murder Reference No. 407 of 2017 is answered in the NEGATIVE and the sentence of death awarded to Muhammad Waheed Butt (convict) is NOT CONFIRMED.
(A.A.K.) Appeal allowed
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