PLJ 2023 Cr.C. (Note) 113
[Lahore High Court, Lahore]
Present: Shehram Sarwar Ch. and Ali Zia Bajwa, JJ.
MUHAMMAD HANIF--Appellant
versus
STATE--Respondent
Crl. A. No. 20329-J & M.R No. 43 of 2019, heard on 23.11.2022.
Delay in autopsy--
----It has been held repeatedly by 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 body of deceased which happens only when complainant and police remain busy in consultation and preliminary inquiry regarding culprits in such cases of unwitnessed occurrence. [Para 4] A
2011 SCMR 1190 and 2016 SCMR 1628.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Murder reference--Conviction and sentence--Challenge to--Benefit of doubt--Ocular account--Delay in post-mortem--Such ocular account to extent of co-accused of appellant is in direct conflict with medical evidence--This major discrepancy raised serious doubt on credibility of prosecution witnesses of ocular account--In normal course, presumption under law would operate about his absence from crime spot--The testimony of chance witness may be relied upon, provided some convincing explanations appealing to a prudent mind for his presence on 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--Both witnesses of ocular account have stated in their cross-examination that motive incident did not take place in their presence--No independent witness qua motive part of incident was produced by prosecution during trial--Prosecution has failed to substantiate motive against appellant--So far as alleged recovery of chhura at instance of appellant is concerned, recovery is merely a corroborative piece of evidence and relevant only if primary evidence i.e--ocular account inspires confidence which is not situation in this case--Hon’ble Supreme Court of Pakistan that full description of dagger has been given but blood stains on it were omitted, therefore, when blood was not found on it, how Chemical Examiner and Serologist could give an opinion about presence of human blood on it--So 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--Prosecution remained failed to discharge its responsibility of proving case against appellant--Appeal allowed.
[Para 5, 6, 7, 8 & 9] B, C, D, E, F, G & H
2022 SCMR 986, 2022 SCMR 1567, 2011 SCMR 323, 2014 SCMR 1197, 2014 SCMR 1698, PLD 2021 SC 600, 2021 SCMR 325 &
2015 SCMR 840.
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] I
2009 SCMR 230.
Mr. Tayyab Shakoor Rana, Advocate for Appellant.
Mr. Muhammad Arshad Ali Farooqi, Deputy Prosecutor General for State.
Mr. Dabeer Ali Awan, Advocate for Complainant.
Date of hearing 23.11.2022.
Judgment
Shehram Sarwar Ch., J.--Muhammad Hanif (appellant) along with his co-accused namely Said Muhammad and Muhammad Latif was tried by the learned Addl. Sessions Judge, Renala Khurd in case FIR No. 230 dated 09.07.2016, offence under Sections 302, 337-F(i) and 34, PPC registered at Police Station Sher Garh District Okara for the murder of Ashraf Ali (deceased) son of complainant. Vide judgment dated 26.02.2019 passed by the learned trial Court, the appellant has been convicted under Section 302(b), P.P.C. and sentenced to death, with a further direction to pay Rs. 2,00,000/- (rupees two lakh only) 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. Through the same judgment, Said Muhammad and Muhammad Latif, co-accused of the appellant were acquitted of the charge by extending them benefit of doubt and no appeal against their acquittal was filed either by the State or complainant, as conceded by learned Deputy Prosecutor General as well as learned counsel for 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. 43 of 2019 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.PM) registered on the written application (Ex.PF) of Nazeer Ahmad, complainant (PW.4) is that on 09.07.2016, the complainant along with his sons Ashraf Ali and Muhammad Arshad was coming towards his house from the fields and at about 6.30 a.m. when they reached near the fields of Muhammad Shaban alias Bani, Muhammad Hanif (appellant) armed with chhura, Muhammad Latif armed with sickle and Said Muhammad armed with sota intercepted them. Said Muhammad raised lalkara to teach a lesson to Ashraf Ali for not allowing them to irrigate their fields, whereupon Muhammad Latif caught hold of arms of Ashraf Ali from backside and within the view of complainant, Muhammad Hanif inflicted chhura blow on right side of chest of Ashraf Ali, who fell down smeared with blood. The complainant and Muhammad Arshad stepped forward but Muhammad Latif gave sickle blow to Muhammad Arshad, hitting on his left arm. On hue and cry of complainant party, Rehmat Ullah and other people attracted to the spot and the accused fled away along with their weapons. Ashraf Ali succumbed to the injury on the spot. Motive behind the occurrence as alleged in the FIR was that the agricultural land of the complainant and that of accused was being irrigated from the same watercourse. One day prior to the occurrence, Ashraf Ali irrigated his land from the same watercourse through electric motor and a quarrel took place between Ashraf Ali and Muhammad Hanif etc. as they wanted to water their land from the said watercourse and the accused threatened to teach him a lesson. Due to that revenge, the accused in consultation with each other committed the murder of Ashraf Ali (deceased).
3. We have heard learned counsel for the parties as well as learned Deputy Prosecutor General for the State and gone through the record with their able assistance.
4. Undisputedly, there is noticeable delay in conducting autopsy of the dead-body of Ashraf Ali (deceased) because Dr. Aman Ullah (PW.3), who conducted autopsy of the dead-body of deceased, has stated in his examination-in-chief that probable time that elapsed between death and post-mortem was about 8 to 9 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 body 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 “Arshad Ahmed vs. The State” (2011 SCMR 1190) and “Nazeer Ahmed vs The State” (2016 SCMR 1628).
5. Ocular account in this case consists of Nazir Ahmad, complainant (PW.4) and Muhammad Arshad (PW.5). In the FIR it was the case of prosecution that Muhammad Latif caught hold of arms of Ashraf Ali from backside and Muhammad Hanif inflicted chhura blow on right side of chest of Ashraf Ali. Muhammad Latif gave sickle blow to Muhammad Arshad, hitting on his left arm. It is not understandable as to how Muhammad Latif co-accused of the appellant caught hold of arms of Ashraf Ali from backside when he himself was armed with sickle and allegedly caused injury with sickle to Muhammad Arshad (PW.5). According to the contents of FIR, the occurrence allegedly took place on 09.07.2016, however, the medico-legal-report (Exh.PN) of Muhammad Arshad (PW.5), available on record, depicts that the said PW was medically examined on 12.07.2016. No plausible explanation has been brought on record by the prosecution as to why Muhammad Arshad (PW.5) did not get himself medically examined soon after the incident. Moreover, it was the case of prosecution that Muhammad Latif co-accused of the appellant caused injury with sickle on the person of Muhammad Arshad (PW.5) but Dr. Syed Shakir Jawad (PW.8) has stated in his examination-in-chief that the said injury was caused by blunt weapon and as such the ocular account to the extent of Muhammad Latif co-accused of the appellant is in direct conflict with the medical evidence. This major discrepancy raised serious doubt on the credibility of the prosecution witnesses of ocular account. We fortify our view from the dictum laid down in case law titled as “Bashir Muhammad Khan vs. The State” (2022 SCMR 986) “Tajamal Hussain Shah vs. The State and another” (2022 SCMR 1567). Moreover, Muhammad Latif co-accused of the appellant who allegedly caused injury to Muhammad Arshad (PW.5) has been acquitted by the learned trial Court and no appeal against his acquittal was filed either by the State or the complainant meaning thereby the prosecution story qua sustaining injury by Muhammad Arshad (PW.5) at the hands of Muhammad Latif co-accused has been disbelieved by the learned trial Court. Therefore, in view of the above facts and circumstances, Muhammad Arshad (PW.5) cannot be considered a truthful witness. The argument of the learned DPG as well as learned counsel for the complainant that presence of Muhammad Arshad (PW.5) cannot be doubted at the place of occurrence due to the injury on his person has no substance because merely the injury on the body of a person would not stamp him/her truthful witness. Reliance is placed on case-law titled as “Amin Ali and another vs. The State” (2011 SCMR 323). So far as testimony of Nazir Ahamd, complainant (PW.4) is concerned, the presence of said PW on the spot at the time of incident is doubtful in nature because had he been present on the spot at relevant time, why he did not try to rescue the deceased or to catch hold of the appellant and his co-accused, who admittedly were not armed with any fire-arm to ward the said eye-witness off or to keep him away at the time of incident. Moreover, the said PW has not given any plausible reason for his presence on the spot at the time of incident. His house has not been shown in the scaled site-plan (Exh.PA) close to the place of occurrence. He was a chance witness. The testimony of chance witness ordinarily is not accepted unless justifiable reasons are shown to establish his presence at the crime scene at the relevant time. In normal course, the presumption under the law would operate about his absence from the crime spot. The testimony of chance witness may be relied upon, provided some convincing explanations appealing to a prudent mind for his presence on 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 cases reported as “Mst Shazia Parveen vs. The State” (2014 SCMR 1197), “Muhammad Rafique vs. The State” (2014 SCMR 1698), “Naveed Asghar and 2 others vs. The State” (PLD 2021 SC 600) and “Abdul Khaliq vs. The State” (2021 SCMR 325). We have further noted that in the FIR as well as before the learned trial Court it was the case of prosecution that the occurrence allegedly took place near the fields of Muhammad Shaban alias Bani but said Muhammad Shaban alias Bani was not produced by the prosecution during the trial and as such the complainant withheld the best piece of evidence available with him for the reasons best known to him. Therefore, we hold that the evidence furnished by the above said PW is shaky in nature and cannot be relied upon for maintaining the conviction/sentence of the appellant.
6. Motive behind the occurrence as alleged in the FIR was that the agricultural land of the complainant and that of accused was being irrigated from the same watercourse. One day prior to the occurrence, Ashraf Ali irrigated his land from the same watercourse through electric motor and a quarrel took place between Ashraf Ali and Muhammad Hanif etc. as they wanted to water their land from the said watercourse and the accused threatened to teach him a lesson. Qua motive part of incident Nazir Ahmad, complainant (PW.4) has stated in his cross-examination as under:
“I did not report the motive dispute to the police for the reason that it was a petty dispute which could be solved through Punchayat easily. No punchayat was convened in respect of the motive dispute”
Moreover, regarding motive part of incident the following portion of Muhammad Zubair S.I. (PW.9) is relevant which is reproduced as under:
“...The complainant had not produced before me during investigation any PW who had claimed that in his presence any dispute had taken place between Muhammad Ashraf deceased and the accused person on irrigating the agricultural land one day prior to the occurrence and as such I had recorded the statement of any such PW regarding the motive...”
We have further noted that both the witnesses of ocular account have stated in their cross-examination that motive incident did not take place in their presence. Furthermore, no independent witness qua motive part of incident was produced by the prosecution during the trial. Therefore, we hold that the prosecution has failed to substantiate motive against the appellant.
7. So far as alleged recovery of chhura at the instance of appellant is concerned, suffice it to observe that recovery is merely a 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. Moreover, there is no mention in the statement of Muhammad Zubair S.I. (PW.9) that the chhurra was stained with blood or not. Reliance may be placed on the case reported as “Irfan Ali vs. The State” (2015 SCMR 840), wherein it was held by the Hon’ble Supreme Court of Pakistan that full description of the dagger has been given but blood stains on it were omitted, therefore, when blood was not found on it, how the Chemical Examiner and the Serologist could give an opinion about the presence of human blood on it.
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. Reliance is placed on case law titled as “Muhammad Akram versus The State” (2009 SCMR 230).
10. For the foregoing reasons, Criminal Appeal No. 20329-J of 2019 filed by Muhammad Hanif (appellant) is allowed, conviction and sentence awarded to the appellant vide judgment dated 26.02.2019 passed by the learned trial Court are set aside and the appellant is acquitted of the charge levelled against him while extending him benefit of doubt. Muhammad Hanif, appellant is in jail. He shall be released forthwith if not required to be detained in any other case.
11. Murder Reference No. 43 of 2019 is answered in the NEGATIVE and the sentence of death awarded to Muhammad Hanif (convict) is NOT CONFIRMED.
(A.A.K.) Appeal allowed
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