PLJ 2023 Cr.C. (Note) 48
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302--Chance witness--Delay in post mortem--Related witness--Acquittal of--Appellant made a straight fire with pistol 30-bore which landed under left eye of the deceased, who fell down--He then made two fire shots hitting on left and right side of back of the deceased--Postmortem examination of the dead body of deceased was conducted fourteen and a half hours after the occurrence--Possibility exists that it was an un-witnessed occurrence and time had been consumed by the police in procuring and planting eye-witnesses--PW-8, who were closely related to the deceased being his brother and brother-in-law respectively and were chance witnesses as they were neither residents of the place of occurrence nor have any place of business over there--No convincing or plausible reason was assigned by both the PWs for their presence on the spot--Inspector (PW-9), who visited the place of occurrence soon after the occurrence--During cross-examination that no motorbike of deceased was seen at the place of occurrence when he reached the spot--He neither took into possession aforesaid motorbikes on his first visit nor inquired from the complainant party regarding this fact--Dimensions of injuries on the person of deceased were not the same as is evident from cross-examination of Dr./ PW-4--Held: Testimony of a chance witness ordinarily is not accepted unless justifiable reasons are shown to establish his presence at the crime scene at relevant time--No documentary proof of the appellant being student of deceased was available--No independent witness qua motive was brought in the witness box at the time of trial--Recovery of 30 bore pistol was got recovered from an oranges orchard, not owned by the appellant, which is an open place accessible to everyone--The prosecution remained failed to discharge its responsibility of proving the case against the appellant--Appellant is acquitted.
[Para 2, 4, 5, 6, 7 & 9] A, B, C, D, E, F, G, H, I
2009 PCr.LJ 1022 2011 SCMR 1190; 2015 SCMR 1142;
2016 SCMR 2021; PLD 2021 SC 600 ref.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302--Benefit of doubt--A single circumstance which created doubt regarding the prosecution case is sufficient to give benefit of doubt.
[Para 9] J
2009 SCMR 230 ref.
M/s. Mudassar Altaf Qureshi, Prince Rehan Iftikhar Sheikh and Mian Tanveer Iqbal Arain, Advocates for Appellant.
Mr. Muhammad Ali Shahab, Deputy Prosecutor General
Kh. Qaiser Butt and Mr. Nadir Sultan Murali, Advocates for Complainant.
Date of hearing: 2.11.2022.
PLJ 2023 Cr.C. (Note) 48
[Lahore High Court, Multan Bench]
Present: Sadaqat Ali Khan and Shehram Sarwar Ch., JJ.
IMRAN TANVEER--Appellant
versus
STATE & another--Respondents
Crl. A. No. 1403 of 2019 & M.R. No. 82 of 2018, heard on 2.11.2022.
Judgment
Shehram Sarwar Ch., J.--Imran Tanveer (appellant) was tried by the learned Addl. Sessions Judge, Chichawatni District Sahiwal in case FIR No. 251 dated 17.09.2017, offence under Section 302, PPC, registered at Police Station Okanwala Bangla District Sahiwal for the murder of Manzoor Hussain (deceased) brother of complainant. Vide judgment dated 06.06.2018 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. 3,00,000/-(rupees three lakh only) as compensation under Section 544-A, Code of Criminal Procedure to the legal heirs of deceased and in default whereof, to further undergo simple imprisonment for six months. Assailing the above conviction and sentence, the appellant has filed the appeal in hand whereas the learned trial Court has sent Murder Reference No. 82 of 2018 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, are being decided together through this single judgment.
2. Prosecution story, as set out in the FIR (Ex.PC/1) registered on the statement (Ex.PC) of Mehmood Ali, complainant (PW.7) is that on 17.09.2017 at about 4.30 p.m. he along with Abdul Ghaffar and Javed while riding on motorcycle bearing Registration No. VRK-5862 Honda CD-70, model 2015 red colour and his brother Manzoor Hussain along with Muhammad Shafique riding on Motorcycle No. KWK-9147 Super Power Model 2014, red colour were going to Chak No. 97/12-L. As soon as they reached near vicinity of Chak No. 89/12-L Square No. 11 killa No. 21, abruptly Imran Tanveer (appellant) armed with pistol .30 bore appeared from nearby orange orchard and intercepted them. He raised lalkara to teach a lesson to Manzoor Hussain for insulting him. Manzoor Hussain alighted from the motorcycle and headed towards Imran Tanveer; upon which Imran Tanveer made a straight fire with pistol .30 bore which landed under his left eye, who fell down. Imran Tanveer then made two fire shots hitting on left and right side of back of Manzoor Hussain. The complainant party tried to capture Imran Tanveer who waved his pistol and extended threats that if anyone came near to him, would be done to death and fled away from the spot. The motive behind the occurrence as alleged in the FIR was that Imran Tanveer (appellant) was resident of the village of complainant, who was a man of bad character. A few days prior to the occurrence, Manzoor Hussain (deceased) brother of complainant restrained him from his nefarious activities and scolded him and also made a complaint at his house, which offended Imran Tanveer (appellant).
3. We have heard arguments of 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.
4. This unfortunate incident wherein Manzoor Hussain (deceased) brother of complainant lost his life, as per prosecution, took place on 17.09.2017 at about 4.30 p.m. in the area of Chak No. 89/12-L situated within the territorial limits of Police Station Okanwala Bangla District Sahiwal. The distance between the place of occurrence and the police station was about two kilometers. The matter was reported to the police through statement (Ex.PC) of Mehmood Ali, complainant (PW.7) on the same day at 5.30 p.m. and formal FIR (Ex.PC/1) was got registered at 5.45 p.m. However, the post-mortem examination of the dead body of deceased was conducted on the next day at 7.00 a.m. i.e. fourteen and a half hours after the occurrence. In this regard, Dr. Zain-ul-Abidin (PW.4) stated in examination-in-chief that the dead body of deceased was brought by Muhammad Afzal 538/C (PW. 1) at 5.00 a.m. while he received complete documents at 6.00 a.m. Therefore, possibility exists that it was an unwitnessed occurrence and time had been consumed by the police in procuring and planting eye-witnesses and in cooking up a story for the prosecution. In this regard, reliance is placed on the case law reported as “Muhammad Riaz vs. The State” (2009 P.Cr.LJ. 1022 Lahore) and of ‘‘Irshad Ahmed vs. The State” (2011 SCMR 1190).
5. The ocular account in this case has been furnished before the learned trial Court by Mehmood Ali, Complainant (PW.7) and Muhammad Shafique (PW.8), who were closely related to the deceased being his brother and brother-in-law respectively and were change witnesses as they were neither residents of the place of occurrence nor have any place of business over there. The complainant (PW.7) was resident of Chak No. 95/12-L, which as conceded by him was situated at a distance of about 6/7 kilometers from the place of occurrence whereas Muhammad Shafique (PW.8) was residing at Chak No. 92/12-L. No convincing or plausible reason was assigned by both the PWs for their presence on the spot and it was simply stated by them in examination-in-chief that they along with Abdul Ghaffar (given up PW) and Javed (not produced) were going to Chak No. 97/12-L to visit their relatives. It was claimed by the PWs that they as well as the deceased reached the spot on two motorcycles but the version of Khawaja Abid Sageer, Inspector (PW.9), who visited the place of occurrence soon after the occurrence was altogether different. He explained during cross-examination that no motorbike of deceased was seen at the place of occurrence when he reached the spot. He neither took into possession aforesaid motorbikes on his first visit nor inquired from the complainant party regarding this fact. Even not motorcycles were shown in the rough site plan (Ex.PL) and scaled site-plan (Ex.PB), prepared on the instructions of PWs. It was case of the prosecution in the FIR and before the learned trial Court that the appellant made three fire shots with pistol at the deceased which landed under his left eye as well as left and right sides of back. We have noted that the dimensions of injuries on the person of deceased were not the same as is evident from cross-examination of Dr. Zam-ul-Abidin (PW.4), who admitted that the size of entry wounds of Injury Nos. 1, 3 and 5 were different and possibility exists that the said injuries might had caused with three different weapons. So, before the learned trial Court, the eye-witnesses have utterly failed to establish their presence on the place of occurrence at relevant time. It is in this context that the testimony of a chance witness ordinarily is not accepted unless justifiable reasons are shown to establish his presence at the crime scene at relevant time. In normal course, the presumption under the law would operate about his absence from the crime spot. The testimony of a chance witness may be relied upon, provided some convincing explanations appealing to a prudent mind for his presence at the crime spot are put forth, when the occurrence took place otherwise his testimony would fall within the category of suspect evidence and cannot be accepted without a pinch of salt. Reliance may be placed on the case law reported as “Mst. Sughra Begum and another vs. Qaiser Pervez and others” (2015 SCMR 1142) and “Muhammad Javed vs. The State” (2016 SCMR 2021). Furthermore, 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. Under the circumstances, we are of the view that Mehmood Ali, complainant (PW.7) and Muhammad Shafique (PW.8) were not present on the spot and had not witnessed the occurrence.
6. The motive behind the occurrence as alleged in the FIR and brought before the learned trial Court was that Imran Tanveer (appellant) was pupil of Manzoor Hussain (deceased) and his activities were nefarious. The deceased oftenly advised him to refrain himself from misdeed and some days prior to the occurrence, the deceased admonished the appellant and made his complaint to his family, which offended him. During cross-examination, the complainant explained that the appellant used to tease the girls who were getting education from the deceased and parents of girls appeared before the I.O. including Abbas Ali but neither his statement was recorded by the police nor his daughter was associated with the investigation. The complainant further conceded that no documentary proof of the appellant being student of deceased was available and that he used to visit mosque for offering prayers and reading Quran. Likewise, the version of I.O. (PW.9) was that the complainant did not produce any specific PW to establish motive of the occurrence. We have observed that no independent witness qua motive was brought in the witness box at the time of trial. Therefore, in our view, the prosecution has not been able to substantiate the alleged motive behind the occurrence.
7. So far as the recovery of .30 bore pistol (P.5) at the instance of appellant is concerned, the same is not much helpful to the prosecution for the reason that the same was got recovered from an oranges orchard, not owned by the appellant, which is an open place accessible to everyone.
8. So 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.
9. 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. In this regard, reliance may be placed on the case law reported as “Muhammad Akram versus The State” (2009 SCMR 230).
10. For the foregoing reasons, Criminal Appeal No. 1403 of 2019 filled by Imran Tanveer (appellant) is allowed, conviction and sentence awarded to the appellant vide judgment dated 06.06.2018 passed by the learned trial Court are set aside and he 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.
11. Murder Reference No. 82 of 2018 is answered in NEGATIVE and the sentence of death awarded to Imran Tanveer (conduct) NOT CONFIRMED.
(M.A.B.) Appeal allowed
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