PLJ 2023 Cr.C. (Note) 74
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302/34--Medical evidence--Uncertain about the cause of death--Mouth of deceased was lying open--Co-accused were acquitted--Acquittal of--All the accused inflicted fist blows in the chest of the deceased but no mark of violence/torture was observed by the Medical Officer--They could have caused injuries to the deceased as well as to the PWs but they caused no harm at all either to the deceased or to the eye-witnesses with their sickles--Co-accused of the appellant with similar role were acquitted by the Trial Court on the same set of evidence--Medical examination post-mortem examination of a deceased is made for limited purposes only to corroborate and support the substantive/ circumstantial evidence--No injury was found on the body of the deceased and even after the report of histopathologist, the medical officer was uncertain about the cause of death meaning thereby that the prosecution could not prove that the deceased met unnatural death as a result of injury caused by the appellant--No recovery was effected from the appellant--Mouth of deceased was lying open as reflected by the inquest report meaning thereby that none of the PW was around/attend the dead body--Prosecution miserably failed to prove its case against the appellant beyond shadow of reasonable doubt--Appeal is allowed.
[Para 14, 15, 16, 17, 19, 20 & 21] A, B, C, D, E, F, G, H
2000 SCMR 1758; 2008 SCMR 6 ref.
Mr. Tahir Mehmood, Advocate for Appellant.
Mr. Hassan Mehmood Khan Tareen, Deputy Prosecutor General for State.
Mr. Ghulam Muzammal Thaheem, Advocate for Complainant.
Date of hearing: 22.2.2018.
PLJ 2023 Cr.C. (Note) 74
[Lahore High Court, Multan Bench]
Present: Sardar Ahmed Naeem, J.
MUHAMMAD SAEED--Appellant
versus
STATE etc.--Respondents
Crl. A. No. 295 of 2017, decided on 22.2.2018.
Judgment
Muhammad Saeed appellant alongwith Muhammad Rehman and Ahsan Ullah co-accused (since acquitted) of case FIR No. 380 dated 26.9.2013 under Sections 302/34 registered at Police Station Fateh Pur, Tehsil Karor Lal Eason, District Layyah, lodged by Muhammad Aslam alias Muhammad Islam complainant, were tried by learned Addl. Sessions Judge, Karor Lal Eason, District Layyah, for committing Qatl-i-Amd of Abdul Hameed (deceased). At the conclusion of the trial vide judgment dated 30.03.2017, the learned trial Court acquitted Muhammad Rehman and Ahsan Ullah co-accused and convicted and sentenced Muhammad Saeed appellant as under:
“Under Section 302(b), PPC and sentenced to imprisonment for life with a direction to pay Rs. 2,00,000/-to the legal heirs of the deceased as compensation under Section 544-A, Cr.P.C., in default thereof, to undergo Simple Imprisonment for six months.”
The appellant was, however, extended benefit of Section 382-B, Cr.P.C.
2. The appellant filed the instant appeal against conviction and sentence awarded to him by the learned trial Court.
3. Case of the complainant, as set-forth in the FIR Exh.PG/I lodged by Muhammad Aslam alias Muhammad Islam, complainant, was that on 26.09.2013 at about 07.15 a.m. he alongwith his father-in- law was standing in the land adjacent to their house. The appellant alongwith his co-accused armed with sickles came there and raised lalkara that they would teach a lesson for refraining them from grazing cattles. Ahsan Ullah co-accused caught hold Abdul Hameed deceased from his arms while Muhammad Rehman co-accused held the deceased by his legs, threw him on the ground, whereupon the appellant started giving fist blows in the chest of the deceased. On raising hue and cry, the witnesses were attracted to the spot and the accused after enacthing the episode fled away. Abdul Hameed deceased expired at the spot.
4. After usual investigation, challan against the appellant and his co-accused was submitted before the Court. The learned trial Court charge sheeted the accused to which they pleaded not guilty and claimed trial, hence the prosecution evidence was summoned.
5. In order to prove its case the prosecution produced as many as twelve witnesses in all.
6. Ghulam Murtaza 202-C (PW.2) escorted the dead body to RHC Fateh Pur for post-mortem and after post-mortem examination, doctor handed over to him three sealed jars, two sealed envelope along-with last worn clothes of the deceased which was delivered by him to the Investigating Officer who secured the same vide memo. Exh.PA and Exh.PB respectively. On 09.10.2013, he deposited the three sealed jars one sealed envelope in the office of PFSA. He handed over the objected parcel to Moharrar on 11.10.2013. Doctor Dilawar Hussain (PW-4) conducted post-mortem examination on the dead body of Abdul Hameed deceased and found no injury on his person. As per report of consultant Radiologist, no bony lesion for fracture of bone seen in X-Ray chest, as per report dated 13.2.2014 from Forensic Science Laboratory, Lahore Toxicology analysis report, no drug/poisoning is detected and report of Histopathology, Forensic Science Agency, Lahore dated 15.4.2014 shows advance atherosclerotic and calcified coronaries. The myocardial Sections reveal few areas of fibrosis, the remaining Sections were unremarkable. Muhammad Ashraf S.I.
(PW-6) on receipt of complaint Ex.PG drafted by Wali Muhammad lodged the formal FIR Ex.PG/1. Syed Fazal Imam Naqsha Navees (PW-7) visited the place of occurrence on 25.2.2014 and prepared scaled site-plan and handed over the same to the I.O. Raheel Mukhtar (PW-8) identified the dead body. Muhammad Aslam (PW-9) and Tahir Mehmood (PW-10) were eye-witnesses of the occurrence. Muhammad Akram S.I (PW-11) conducted investigation of the case. On 16.2.2014, he arrested accused Abdul Rehman, got prepared the scaled site-plan Exh.PH and Exh.Ph.I through draftsman, also arrested Ehsan accused on 01.5.2014 and got them sent to the judicial lock up on 03.3.2014 and on 06.5.2014 confirmed their involvement in this case. Muhammad SI (PW. 12)/Investigating Officer visited the spot, recorded statement of complainant Exh.PG, inspected the dead body, prepared the rough site-plan of place of occurrence Exh.PK, prepared inquest report, got conducted the post-mortem of the deceased, arrested Muhammad Saeed the appellant and submitted the incomplete challan to his extent. The remaining PWs are of formal nature, therefore, need not to be discussed.
7. Learned ADPP gave up Ch. Abdul Rashed PW being unnecessary and closed the prosecution case.
8. Thereafter, the statement of the appellant along-with his co-accused was recorded. He denied the allegations and pleaded innocence. Responding to a question why this case against him and why the PWs have deposed against him, appellant deposed as under:
“I am innocent. All the PWs are related inter se and inimical towards me. The complainant and PWs involved me in this case to pressurize my family”
9. The appellant did not appear as his own witness under Section 340(2), Cr.P.C. nor produce some witness in his defence.
10. Learned counsel for the appellant contended that the prosecution failed to prove its case against the appellant beyond reasonable doubt; that no independent witness was cited by the prosecution; that the appellant was named with a general allegation of causing fists blows? to the deceased; that co-accused of the appellant with similar role stands acquitted by the learned trial Court on the same set of evidence and, thus, the appellant is also to be treated alike; that no recovery was effected from the appellant during the investigation; that story of the prosecution was hard to digest and does not fit in with the probabilities; that the version of the complainant is falsified by the medial evidence; that the motive was afterthought and weak, lends no corroboration to the prosecution; that the prosecution evidence is full of discrepancies/contradictions; that benefit of doubt is the vested right of the accused and the appellant is entitled to be acquitted.
11. Learned Deputy prosecutor General assisted by the learned counsel for the complainant maintained the validity of the impugned judgment rendered by the learned trial Court. It was submitted that the appellant being co-villager was known to the complainant; that there was no question of mistaken identity; that the specific role was attributed to the appellant; that the discrepancies hinted at by the learned counsel for the appellant was negligible and do occur with the passage of time; that the complainant’s version gets full support from the medical, recovery and motive and, thus, appeal deserves dismissal.
12. I have considered the points raised at the bar and have gone through the record.
13. A review of the record demonstrates that the occurrence took place on 26.9.2013 at about 7.15 a.m. in the open plot adjacent to the house of the deceased. All the accused were armed with “daatries” sickles. The appellant, allegedly, raised lalkara and then his co-accused held the deceased by legs and the appellant inflicted fist blows. The record further divulged that after sustaining injury, the deceased fell down and then all the accused inflicted fists blows in his chest. The alarm raised by the complainant, attracted Tahir Mehmood (PW. 10)
The motive behind the occurrence was that the appellants-accused were forbidden from grazing of their cattles in the field of the deceased.
14. The complainant was ‘damad’ and the eye-witness, namely, Tahir Mehmood (PW.10) was nephew of the deceased. However, the complainant claimed himself as his ‘humzulf. The appellant along-with his co-accused was armed with ‘Daatries” sickles. No evidence was brought on the file that the deceased forbade the appellant-accused from grazing cattles in his fields in the recent past i.e. no date, time and place of that event/episode was available on the file. The parties never quarreled with each other, the record further reflected. All the accused inflicted fist blows in the chest of the deceased but no mark of violence/torture was observed by the Medical Officer during his examination. All the vital organs were found healthy. All the accused were armed with ‘Daatries” sickles. They could have caused injuries to the deceased as well as to the PWs but they caused no harm at all either to the deceased or to the eye-witnesses with their sickles. They decamped after enacting the episode but there was no mention if they left those ‘Daatries” at the crime scene or took them along. The eye-witnesses did not move forward to rescue the deceased in any manner. The complainant raised hue and cry but could only attract Tahir Mehmood (PW. 10) which was also surprising. The parties lived in the surroundings of the place of occurrence. The PWs were at variance on different aspects. The complainant claimed that the dead body was lying at a distance of 4/5 Karms from the house of the deceased whereas, Tahir Mehmood (PW. 10) stated that it was lying at a distance of about half acre from the house of the deceased. The Investigating Officer took into possession last worn clothes of the deceased including shirt (P.1) and Lungi (P.2). Tahir Mehmood (PW.10) admitted in his cross-examination that the deceased was only wearing white lungi.
15. The co-accused of the appellant with similar role were acquitted by the learned trial Court on the same set of evidence. They were also attributed the role of causing fist blows to the deceased, in particular, there was no specific mention as to which blow proved fatal but the learned trial Court on mere assumption held the appellant guilty for committing this crime by observing that the first blow was inflicted by the appellant which resulted into the death of the deceased, however, the finding of the learned trial Court is neither based on some material nor on medical evidence.
Unfortunately, when the prosecution falsely implicates innocent persons along-with guilty ones, at time it becomes extremely difficult rather impossible to pick up the real culprit out of various accused persons. As discussed above, I am of the firm view that the prosecution could not prove that deceased lost his life due to the injury attributed to the appellant. In this situation, it will be highly unsafe to convict the appellant merely because he was the first one, who inflicted fist blow to the deceased. According to the prosecution it was not only the appellant who has inflicted fist blows to the deceased, rather his acquitted co-accused were also saddled with the same responsibility. May be we cannot deny that the real murderer was amongst the nominated accused but if the appellant cannot safely be specified or picked up then benefit of doubt is to be extended to the appellant in the interest of safer administration of justice.
16 It is well settled law that medical examination/post-mortem examination of a deceased is made for limited purposes only to corroborate and support the substantive/circumstantial evidence. Failure to conduct post-mortem/ medical examination of the deceased would not allow disbelieve that the deceased died natural death. Respectful reliance can be placed on case titled Abdur Rehman vs. The State” (1998 SCMR 1778).
In another case titled “Riaz Masih alias Bhola vs. The State” (2001 YLR 279) where there was contradiction between medical and ocular account, it was held that the ocular testimony is to be preferred over medical evidence and that if ocular account proves the injuries and the unnatural death, the same cannot be brushed aside only because the medical examination/post-mortem examination was not conducted.
17. The medical officer has admitted that no injury was found on the body of the deceased and even after the report of histopathologist, the medical officer was uncertain about the cause of death meaning thereby that the prosecution could not prove that the deceased met unnatural death as a result of injury caused by the appellant.
18. The co-accused of the appellant have been acquitted by the trial Court on the same set of evidence. It is settled law that if majority of the accused nominated in a case is acquitted on account of false implication by the eye-witnesses, then, allegations qua remaining accused on the basis of same set of evidence cannot be sustained without strong/independent corroboration. In this context, reliance can be placed on “Iftikhar Hussain and another vs. State” (PLJ 2004 SC 552) and “Sarfraz alias Sappi and 2 others vs. The State” (2000 SCMR 1758). Similar view was also reiterated in the subsequent judgment of the Hon’ble Supreme Court of Pakistan reported as “Akhtar Ali and others vs. The State” (2008 SCMR-6).
19. No recovery was effected from the appellant during the investigation despite the fact that he was allegedly armed with “Daatry” neither used during the occurrence nor even taken into possession during the spot inspection by the Investigating Officer. Though the prosecution witnesses claimed that they have no enmity with the appellant or co-accused but the above mentioned story does not fit in with the probabilities.
20. In criminal jurisprudence, the general rule of appreciation of evidence is that want of interest or absence of enmity does not stamp the statement of a particular witness with presumption of truth and that much depends on the intrinsic value of the statement of a witness. The real tests are that (i) whether the statement of a witness is in-consonance with the probabilities (ii) whether it fits in with the other evidence and (iii) whether it inspires confidence in a common prudent mind, if these elements are present, the statement of a worst enemy of an accused can be accepted and relied upon without corroboration but without these elements the statement of a pious man can be rejected out-rightly. In “Muhammad Saleem vs. The State” (2010 SCMR 374) at page 377, the apex Court was pleased to observe as under:
“..... General rule is that statement of a witness must be in-consonance with the probabilities fitting in the circumstances of the case and also inspires confidence in the mind of a reasonable and prudent mind. If these elements are present, then the statement of a worst enemy of the accused, can be accepted and relied upon without corroboration but if these elements are missing then the statement of a pious man can be rejected without second thought. Reference is invited to Haroon alias Harooni vs. The State and another 1995 SCMR 1627. The acid test of veracity of a witness is the inherent merit of his own statement. It is not necessary that an impartial and independent witness, who is neither related to the complainant nor inimical towards the accused would stamp his testimony necessarily to be true. The statement itself has to be scrutinized thoroughly and it is to be seen as to whether in the circumstances of the case the statement is reasonable, probable or plausible and could be relied upon. The principle, that a disinterested witness is always to be relied upon even his statement is unreasonable, improbable and not plausible or not fitting in the circumstances of the case then it would lead to a very dangerous consequences. Reference is invited to Muhammad Rafique vs. State 1977 SCMR 454 and Haroon vs. The State 1995 SCMR 1627”
21. Onus to prove in criminal cases never shifts and it is for the prosecution to prove its case against the accused beyoned reasonable shadow of doubt. As mentioned above, the appellant was nominated along-with his co-accused with a general role of causing fist blows, never proved through some cogent evidence and belied by the medical evidence. The motive was farfetched and fake. No mala fide was brought on the record that the appellant or co-accused were forbidden by the deceased for grazing their cattles in his field. Above all, the mouth of the deceased was lying open as reflected by the inquest report Exh.PC/2 meaning thereby that none of the PW was around/attend the dead body and had they been around, his mouth would have been closed. Ref: “Muhammad Asif vs. The State” (2017 SCMR 486). No sentence in case of capital punishment can be sustained on the basis of such sketchy and weak evidence.
22. In view of the above, I am of the considered view that the prosecution miserably failed to prove its case against the appellant beyond shadow of reasonable doubt. Thus, Criminal Appeal No. 295 of 2017 is allowed. The impugned judgment dated 30.3.2017 is hereby set aside. The appellant is acquitted of the charges. He is in jail, be released forthwith if not required in any other criminal case.
(A.A.K.) Appeal allowed
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