PLJ 2023 Cr.C. (Note) 98
[Lahore High Court, Lahore]
Present: Shehram Sarwar Ch., J.
MUHAMMAD RAMZAN--Appellant
versus
STATE--Respondent
Crl. A. No. 389-J of 2016, heard on 10.11.2021.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conviction and sentence--Challenge to--Benefit of doubt--Circumstantial evidence--Evidence of wajtakkar--Extra-judicial confession--Motive--Recovery of weapon--Medical evidence--By Hon’ble Supreme Court of Pakistan that circumstantial evidence in an unseen occurrence should be like a well-knit chain and each circumstance was to be connected with each other to make one complete chain and if even one link of chain is missing this would entitle accused to be acquitted by giving him benefit of doubt--This piece of evidence is not much helpful for prosecution for maintaining conviction of appellant on a capital charge--Medical evidence is concerned, suffice it to obserw that same is only a supporting piece of evidence and relevant only if ocular account inspires confidence which is not situation in this case--As far as defence plea taken by appellant in his statement under Section 342, Code of Criminal Procedure is concerned, since prosecution evidence is doubtful in nature, therefore, there is no need to discuss same which is exculpatory in nature--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 5 & 5] A, B, E & F
2008 SCMR 1103, 2011 SCMR 1127, 2009 SCMR 407,
PLD 2003 SC 704 & 2017 SCMR 986.
Extra-judicial Confession--
----The extrajudicial confession is always considered a weak type of evidence and it is procured at any time during investigation when there is no direct evidence available to prosecution--Moreover, legal worth of extrajudicial confession too is almost equal to naught, keeping in view natural course of/ IT events, human behaviours, conduct and probabilities, in ordin/ry/ course--Needless to remark that extrajudicial confession has never been considered sufficient for recording conviction on a capital charge unless it is strongly corroborated by tangible evidence coming from unimpeachable source--The question of evidentiary value of extrajudicial confession came up for consideration before August Supreme Court of Pakistan--Appeal allowed. [Para 5] C
2009 SCMR 166
Recovery of Weapon--
----It is, by now, well established proposition of law that if crime empty is sent to Forensic Science Laboratory after arrest of accused or together with crime weapon, positive report of said Laboratory loses its evidentiary value. [Para 5] D
2002 SCMR 1986, 2007 SCMR 525 & 2008 SCMR 707.
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 7] G
2009 SCMR 230.
Ms. Naila Mushtaq Dhoon, Advocate for Appellant.
Sheikh Muhammad Noman Siddique, Deputy Prosecutor General for State.
Khan Imtiaz Ali Khan, Advocate for Complainant.
Date of hearing 10.11.2021.
Judgment
Muhammad Ramzan (appellant) along with his co-accused namely Abdul Ghafoor was tried by the learned Addl. Sessions Judge, Arifwala District Pakpattan Sharif in case FIR No. 141 dated 22.05.2015, offence under Section 324, PPC (Section 302, PPC was substituted with Section 324, PPC later on) registered at Police Station Rang Shah District Pakpattan Sharif for the murder of Ubaid Ullah (deceased) brother of complainant. Vide judgment dated 26.04.2016 passed by the learned trial Court, the appellant has been convicted under Section 302(b), PPC and sentenced to rigorous imprisonment for life, with a further direction to pay Rs. 2,00,000/- as compensation under Section 544-A, Cr.P.C. to the legal heirs of deceased and in default whereof, to further undergo simple imprisonment for six months. Benefit of Section 382-B, Cr.P.C. was extended to the appellant. Through the same judgment, Abdul Ghafoor co-accused of the appellant was acquitted of the charge by extending him benefit of doubt and no appeal against his acquittal was filed either by the State or the complainant, as conceded by learned Law Officer 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.PA/2) registered on the statement (Ex.PA) of Habib Ullah, complainant (PW.1) is that on the night of 22.05.2015 at about 3.15 a.m. the complainant received telephonic call of his maternal cousin Imran and he informed that Ubaid Ullah brother of complainant, who was married to Azra Bibi maternal cousin 8/9 months earlier and was living in the house of his in-laws, received a fire shot and was in precarious condition. Having received that information, the complainant reached the house of his maternal uncle situated at Chak No. 11/EB where Muhammad Imran apprised the complainant that Ubaid Ullah, his wife Azra Bibi, mother-in-law Balqees Bibi and brother-in-law Abdul Ghafoor were sleeping in the house when they heard report of fire and saw an unknown person, who escape towards crops while scaling over the wall. Ubaid Ullah sustained fire-arm injury on his back below right shoulder, who was shifted to hospital for medical aid. The injured died in the morning at 9.00 a.m. and Section 302, PPC was substituted with Section 324, PPC. The appellant was implicated in this case through supplementary statement of complainant dated 22.05.2015.
3. I have heard arguments of learned counsel for the parties as well as the learned Law Officer for the State at a considerable length and have also gone through the record very minutely.
4. Admittedly, the FIR was got registered against an unknown accused and the appellant is not named in the FIR in any context whatsoever. I have observed that no descriptions/features such as height, complexion, physique and age etc. of the accused person were given in the FIR and even no identification parade was conducted in this case. The complainant is not an eye-witness of the occurrence and he was informed by his maternal cousin Imran that some unknown accused caused fire-arm injury to the deceased. The appellant along with his co-accused Abdul Ghafoor was nominated in this case through supplementary statement of complainant got recorded on 22.05.2015, wherein no source of information as to how the complainant knew about the name of appellant, has been mentioned and it was simply written that now he came to know that this occurrence was committed by the appellant and his co-accused. The said co-accused of the appellant was acquitted by the learned trial Court and no appeal against his acquittal was filed by the complainant. It is also on record through cross-examination of Ghulam Murtaza, S.I/I.O (PW.4) that the deceased while in injured condition did not nominate any person with regard to the present occurrence.
5. Undeniably, no eye-witness appeared before the learned trial to depose against the appellant and the case in hand is one of circumstantial evidence. It has been held in a number of cases by the Hon’ble Supreme Court of Pakistan that circumstantial evidence in an unseen occurrence should be like a well-knit chain and each circumstance was to be connected with each other to make one complete chain and if even one link of the chain is missing this would entitle the accused to be acquitted by giving him the benefit of doubt. Reliance is placed upon “Altaf Hussain Vs. Fakhar Hussain and another” (2008 SCMR 1103) “Muhammad Hussain versus The State”(2011 SCMR 1127), “Ibrahim and others versus The State” (2009 SCMR 407), “Sh. Muhammad Amjad versus the State” (PLD 2003 Supreme Court 704) and “Hashim Qasim and another versus The State” 2017 SCMR 986). The case of the prosecution is based on the following pieces of evidence:-
Evidence of Wajtakkar:
The evidence of Wajtakkar was produced by Muhammad Shafi (PW.3) and Mubarak Ali (PW.6). According to them, on the fateful night they were irrigating their fields and heard the sound of fire. Then they witnessed that Muhammad Ramzan (appellant) armed with carbine and Abdul Ghafoor (since acquitted) empty handed were fleeing away and making conversation that Ubaid Ullah had been hit with straight fire and would not survive. The conduct of said PWs appear to be improbable as Mubarak Ali (PW.6) admitted during cross-examination that he was not owner of agricultural land in Chak No. 11/EB and the distance of his house from the house of complainant is about three kilometers. He further conceded that he is a close friend of complainant and that he was not irrigating the land at that time. Moreover, They did not disclose any plausible or convincing reason for their presence on the spot at odd hours of night. Therefore, I hold that this piece of evidence is not much helpful for the prosecution for maintaining conviction of the appellant on a capital charge.
Extrajudicial Confession:
Evidence of extrajudicial confession was furnished by Abdul Majeed (PW.2). According to him, he was sitting at his dera at about 11.00/12.00 noon with Ghulam Nabi (given up PW) where Abdul Ghafoor came and confessed his guilt and 15/20 minutes after his departure, Muhammad Ramzan (appellant) arrived there and made extrajudicial confession regarding commission of murder of deceased with fire-arm. The appellant requested them to get pardon from the complainant. The extrajudicial confession is always considered a weak type of evidence and it is procured at any time during the investigation when there is no direct evidence available to the prosecution. Moreover, the legal worth of the extrajudicial confession too is almost equal to naught, keeping in view the natural course of events, human behaviours, conduct and probabilities, in ordinary course. Needless to remark that extrajudicial confession has never been considered sufficient for recording conviction on a capital charge unless it is strongly corroborated by tangible evidence coming from unimpeachable source. The question of evidentiary value of the extrajudicial confession came up for consideration before the August Supreme Court of Pakistan, in the case reported as “Tahir Javed Vs. The State” (2009 SCMR 166), wherein at page 170, the Apex Court of Pakistan has been pleased to observe as under:
“10. ... It may be noted here that since extra-judicial confession is easy to procure as it can be cultivated at any time therefore, normally it is considered as a weak piece of evidence and Court would expect sufficient and reliable corroboration for such type of evidence. The extra-judicial confession therefore must be considered with over all context of the prosecution case and the evidence on record. Right from the case of Ahmed v. The Crown PLD 1951 FC 107 it has been time and again laid down by this Court that extra-judicial confession can be used against the accused only when it comes from unimpeachable sources and trustworthy evidence is available to corroborate it. Reference in this regard may usefully be made to the following reported judgments:
(1) Sajid Mumtaz and others v. Basharat and others 2006 SCMR 231, (2) Ziaul Rehman v. The State 2001 SCMR 1405, (3) Tayyab Hussain Shah v. The State 2000 SCMR 683, (4) Sarfraz Khan v. The State and others 1996 SCMR 188.”
Though the said witness (PW.2) has stated that the appellant along with his co-accused confessed his guilt about the commission of crime but he (PW.2) did not enjoy any social status/authority prompting the appellant to make such a confession before him, who was merely a cultivator. It was not disclosed as to what influence he has over the complainant, to get pardon for the appellant. Moreover, it was not the case of PW.2 before the learned trial Court that they (PW.2 and Ghulam Nabi given up PWs) tried to apprehend the appellant at the time of his extrajudicial confession, who was not armed with any weapon. In the light of above discussion, I am of the view that the evidence of extrajudicial confession in the instant case is not worthy of reliance.
Motive:
No motive was set up by the prosecution in the FIR, however, the complainant introduced the motive in supplementary statement (Ex.PB) and disclosed before the learned trial Court that the marriage of deceased was solemnized with Azra Bibi without the consent of her brother Abdul Ghafoor, who was angry over the said marriage and used to extend threats of dire consequences to the deceased. The complainant side ignored the said threats because parents of Azra Bibi were agreed with the said marriage. The motive was not alleged against the appellant rather the same was attributed to Abdul Ghafoor, co-accused who was acquitted by the learned trial Court and no appeal against his acquittal, as mentioned above, was filed by the complainant. Even the matter of extending threats by Abdul Ghafoor to the deceased was not reported to the police. I have also observed that no independent witness qua motive was produced during the course of investigation or brought in the witness box at trial. Therefore, in my view, the prosecution has not been able to substantiate the alleged motive behind the occurrence.
Recovery:
So far as the alleged recovery of .12 bore carbine (P.2) at the instance of the appellant and the positive report (Ex.PN) of Punjab Forensic Science Agency (PFSA) are concerned, the same are inconsequential for the reason that the occurrence took place on 22.05.2015, the appellant was arrested on 05.07.2015, who got recovered carbine on 19.07.2015 but the same along with crime empty were received in the office of PFSA together on 07.08.2015. It is, by now, well established proposition of law that if the crime empty is sent to the Forensic Science Laboratory after the arrest of the accused or together with the crime weapon, the positive report of the said Laboratory loses its evidentiary value. Reliance in this respect is placed on the case of “Jehangir vs. Nazar Farid and another” (2002 SCMR 1986), “Israr Ali vs. The State” (2007 SCMR 525) and “Ali Sher and others vs. The State” (2008 SCMR 707).
Medical Evidence:
So far as medical evidence is concerned, suffice it to observe that the same is only a supporting piece of evidence and relevant only if the ocular account inspires confidence which is not the situation in this case.
6. 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.
7. 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).
8. Learned counsel for the complainant has apprised the Court that parents of deceased have already died and the deceased died issueless. The remaining legal heirs have effected compromise with the appellant and have no objection on the acceptance of this appeal and acquittal of appellant except Mst. Azra Bibi widow of deceased, who had contracted second marriage after the murder of deceased.
9. For the foregoing reasons, Criminal Appeal No. 389-J of 2016 filed by Muhammad Ramzan (appellant) is allowed, conviction and sentence awarded to the appellant vide judgment dated 26.04.2016 passed by the learned Addl. Sessions Judge, Arifwala District Pakpattan Sharif are set aside and the appellant 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.
(A.A.K.) Appeal allowed
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