PLJ 2023 Cr.C. (Note) 110
[Lahore High Court, Lahore]
Present: Sadaqat Ali Khan and Shehram Sarwar Ch., JJ.
FARMAN HUSSAIN alias HAMAYON etc.--Appellants
versus
STATE etc.--Respondents
Crl. A. Nos. 114687-J & 114110 of 2017 & M.R No. 37 of 2018,
heard on 10.11.2021.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Murder reference--Conviction and sentence--Conflict between ocular account and credibility of eye-witnesses--Testimony of chance witness--Testimony of a chance witness ordinarily is not accepted unless justifiable reasons are shown establish his presence at crime scene at relevant time--In normal course, presumption under law would operate about his absence from 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 crime spot are put forth, when occurrence took place otherwise his testimony would fall within category of suspect evidence and cannot be accepted without a pinch of salt--The accused used to extend threats to complainant’s mother for vacating house and on her refusal, they committed murder of deceased--As admitted by complainant during cross-examination, they did not have any case before any Court of law--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--Prosecution remained failed to discharge its responsibility of proving case against appellant. [Para 5, 6 & 8] A, B, C & D
2015 SCMR 1142 and 2016 SCMR 2021.
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 9] E
2009 SCMR 230.
M/s. Ch. Ashraf Kamboh, Intazar Hussain, Ms. Sheeba Qaiser and Ch. Shahid Hanif Jutt, Advocates for Appellant (Farman Hussain alias Hamayon).
Mr. Saeed Sheikh, Addl. Prosecutor General for State
M/s. Falak Sher Bakhsh Gill and Malik Ahmad Khokhar, Advocates for Complainant (Mst. Shamim Akhtar).
Date of hearing 10.11.2021.
Judgment
Shehram Sarwar Ch., J.--Farman Hussain alias Hamayon (appellant) along with his co-accused namely Abbas Ali and Safdar Ali alias Bhola was tried by the learned Addl. Sessions Judge, Ferozewala in case FIR No. 877 dated 07.09.2016 offence under Sections 302 and 34, PPC registered at Police Station Ferozewala District Sheikhupura for the murder of Mst. Naseem Bibi (deceased) mother of complainant. Vide judgment dated 31.10.2017 passed by learned trial Court, the appellant has been convicted under Section 302(b), PPC and sentenced to death, with a further direction to pay Rs. 1,00,000/- (rupees one 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, Abbas Ali and Safdar Ali alias Bhola, co-accused of the appellant were acquitted of the charge. Assailing the above conviction and sentence, the appellant has filed Crl. Appeal No. 114687-J/2017 whereas the learned trial Court has sent Murder Reference No. 37 of 2018 for confirmation or otherwise of the appellant’s sentence of death, as required under Section 374, Code of Criminal Procedure. The complainant has also preferred Crl. Appeal No. 114110/2017 against acquittal of co-accused of the appellant. Since all 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.PB) registered on the written application (Ex.PA) of Mst. Shamim Akhtar, complainant (PW.1) is that on 07.09.2016 at around 4.30 p.m. she as well as her mother Mst. Naseem Bibi aged about 50/55 years, sister Shazia Bibi and maternal aunt Irshad Bibi, who had come to the house of complainant’s mother as a guest, were going towards grocery shop of the village to purchase house-hold articles. Mst. Naseem Bibi mother of complainant was going ahead of them at some distance. Abbas Ali step brother of complainant along with his sons Hamayon (appellant) and Bhola both armed with .30 bore pistols arrived there. Abbas Ali raised lalkara to teach a lesson to Mst. Naseem Bibi for not vacating the house, whereupon Hamayon (appellant) made successive fires with his pistol which landed on the abdomen, head and right arm of Mst. Naseem Bibi, who fell down smeared with blood. Bhola also made aerial firing towards the complainant party and the accused decamped from the spot. Mother of complainant succumbed to the injuries on the spot. Motive behind the occurrence as alleged in the FIR was that Mst. Naseem Bibi (deceased) owned a house in village Balkhay measuring 10 marla and Abbas Ali along with his sons intended to occupy the same by ousting Mst. Naseem Bibi. The accused used to extend threats to the complainant’s mother for vacating the house and on her refusal, they committed the murder of deceased.
3. We have heard learned counsel for the parties as well as the learned Addl. Prosecutor General for the State and gone through the record with their able assistance.
4. This unfortunate incident wherein Mst. Naseem Bibi (deceased) mother of complainant lost her life and, as per prosecution, took place on 07.09.2016 at about 4.30 p.m. in the area of village Balkhay situated within the territorial jurisdiction of Police Station Ferozewala District Sheikhupura. The matter was reported to the police through written application (Ex.PA) of complainant on the same day at 5.35 p.m. and formal FIR (Ex.PB) was got registered. However, the post-mortem examination of the dead body of deceased was conducted on the next day on 08.09.2016 at 6.40 a.m. i.e. about fourteen hours and ten minutes after the incident. Therefore, possibility exists that it was an unwitnessed murder 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 Mst. Shamim Akhtar, complainant (PW.1) and Mst. Shazia Bibi (PW.2), who were closely related to the decease being her daughters and were chance witnesses because they were neither residents of the place of occurrence nor have any place of business over there. The occurrence took place in village Balkhay whereas the complainant (PW.1) was resident of Khuda Bakhsh Colony, Badian Road, Lahore while Shazia Bibi (PW.2) was residing at Jandiala Kalsian, Muridke. The claim of the witnesses of ocular account was that on the day of occurrence, they along with Irshad Bibi (given up PW) and Mst. Naseem Bibi (deceased) were proceeding towards the shop for purchase of grocery. This very reason for their presence on the spot is belied by her own cross-examination of the complainant, wherein she admitted that her mother did not have any specified list of grocery items which she was intending to purchase from that shop. Moreover, the complainant also conceded that she reached at the spot after 03 to 04 minutes and when she reached there, the accused have already caused firing. The stance of Shazia Bibi (PW.2) in cross-examination was that she reached the spot in the company of her sister/complainant. There was also conflict in the ocular account and medical evidence as in the FIR and before the learned trial Court, it was case of prosecution that the fire shots made by the appellant hit the deceased on her abdomen, head and right arm. The medical officer (PW-11) conducted post-mortem examination of the dead body of deceased and did not observe any entry wound on the head of deceased, rather Injury No. 1 on the head was an exit wound of Injury No. 2. Even Injury No. 8 on the backside of deceased was caused by sharp edged weapon whereas no such injury with sharp edged weapon was alleged by the prosecution. This conflict between ocular account and medical evidence is not ignorable rather shatters the credibility of eye-witnesses and creates dent in the prosecution story. Reliance may be placed on the case reported as “Sufyan Nawaz and another vs. The State and others” (2020 SCMR 192) and “Safdar Abbas and others vs. The State and others” (2020 SCMR 219). 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). Therefore, considering overall circumstances of the case, we are of the view that the evidence produced by Mst. Shamim Akhtar, complainant (PW.1) and Mst. Shazia Bibi (PW.2) is not credible and trustworthy.
6. Motive behind the occurrence as alleged in the FIR and brought before the learned trial Court was that Mst. Naseem Bibi (deceased) owned a house in village Balkhay measuring 10 marla and Abbas Ali along with his sons intended to occupy the same by ousting Mst. Naseem Bibi. The accused used to extend threats to the complainant’s mother for vacating the house and on her refusal, they committed the murder of deceased. As admitted by the complainant during cross-examination, they did not have any case before any Court of law. The complainant further stated that her mother (deceased) moved an application against Abbas Ali co-accused of appellant in her life time but no such application was brought on record. We have also observed that no independent witness qua motive was produced before police during investigation or brought in the witness box at trial. Therefore, in our view, the prosecution has not been able to substantiate the alleged motive behind the occurrence.
7. So far as the alleged recovery of .30 bore pistol at the instance of the appellant which was taken into custody vide recovery memo (Ex.PG) is concerned, the is inconsequential for the reasons that the appellant was arrested on 17.10.2016 and got recovered pistol on 25.10.2016 whereas the report of Punjab Forensic Science Agency (Ex.PP) shows that date of receiving crime empties and pistol as 18.08.2016 and 06.10.2016, which is prior to the arrest of the appellant, meaning thereby the report of P.F.S.A. is not in respect of the pistol allegedly recovered at the instance of the appellant.
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 place on the case law reported as “Muhammad Akram versus The State” (2009 SCMR 230).
10. For the foregoing reasons, Criminal Appeal No. 114687-J of 2017 filed by Farman Hussain (appellant) is allowed, conviction and sentence awarded to the appellant vide judgment dated 31.10.2017 passed by the learned Addl. Sessions Judge, Ferozewala 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. 37 of 2018 is answered in the NEGATIVE and the sentence of death awarded to Farman Hussain alias Hamayon (convict) is NOT CONFIRMED.
12. In view of above discussion, Crl. Appeal No. 114110 of 2017 filed by the complainant against acquittal of co-accused of the appellant, having no merits is dismissed.
(A.A.K.) Appeal allowed
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