PLJ 2023 Cr.C. (Note) 112
[Lahore High Court, Lahore]
Present: Shehram Sarwar Ch., J.
IMRAN and another--Appellants
versus
STATE etc.--Respondents
Crl. A. No. 180-J & Crl. Rev. No. 647 of 2013, heard on 20.6.2022.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b), 324, 440, 148 & 149--Qatl-e-amd--Conviction and sentence--Challenge to--Benefit of doubt--Delay in reporting crime--Delay in post-mortem--Medical evidence--Ocular account--No solid evidence qua motive part of incident was produced by prosecution during trial--The medical evidence produced by prosecution was not of much avail to prosecution A because murder in issue had remained unwitnessed and, thus, medical evidence could not point an accusing finger towards appellant implicated in this case--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--Further held: 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--Appeal allowed.
[Para 4 & 5] A, B & C
2019 SCMR 1978 & 2016 SCMR 1605.
M/s. Falak Sher Bakhsh Gill and Sardar Shahid Hafeez Dogar, Advocates for Appellant alongwith Qamar Ishtiaq.
Mr. Abdul Rauf Wattoo, Deputy Prosecutor General for State.
Nemo for Complainant.
Date of hearing 20.6.2022.
Judgment
This appeal was filed by Imran and Qamar Ishtiaq (appellants). It is pertinent to mention here that according to the FIR No. 560 dated 29.04.2022, offence under Sections 302, 324, 440, 148 and 149 PPC, registered at Police Station Civil Line District Faisalabad, available on file, Imran (appellant) was murdered during the pendency of appeal which fact has been conceded by learned counsel for the appellants, present in the Court, therefore, this appeal to his extent stands abated. Qamar Ishtiaq (appellant) alongwith his co-accused namely Rasheed Ahmad, Aamir Rasheed and Umar Khattab alias Boota was tried by the learned Additional Sessions Judge Faisalabad in case FIR No. 1201 dated 18.08.2010, offence under Sections 302, 148 and 149, PPC, registered at Police Station Nishatabad District Faisalabad. Vide judgment dated 20.07.2013 passed by the learned trial Court, the appellant has been convicted under Section 302(b), PpC and sentenced to 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, learned trial Court acquitted Rasheed Ahmad. Aamir Rasheed and Umar Khattab alias Boota co-accused of the appellant while extending them benefit of doubt and against their acquittal Crl. Appeal No. 1058 of 2013 filed by the complainant was dismissed due to non-prosecution vide order dated 02.06.2020. The complainant has also filed Cr. Revision No. 647 of 2013 for enhancement of sentence of the appellant and his co-convict namely Imran as well as compensation amount imposed upon them. Assailing the above conviction and sentence, the appellant has filed the appeal in hand. Since both these matters have arisen out of the same judgment, therefore, are being decided together through this single judgment.
2. Precisely, the facts of the case as narrated in the FIR (Exh.PC1) recorded on the statement (Exh.PC2) of Muhammad Yousaf Gill, complainant (PW.10) are that on 18.08.2010 at about 8:30 p.m. he alongwith his brother Bashir Ahmad was going to Masjid Gulzar-e-Madina for offering prayer. Tube lights and bulbs were lit on the gates of houses and poles near the mosque. Complainant’s father namely Alamgir and Tahir Naeem were sitting on cots outside the Haveli of Riasat Ali and in front of the mosque. In the meanwhile, Muhammad Amir passed near them and went to sugarcane crop. After some time, Imran armed with mouser-type pistol and Qamar armed with .30 bore pistol came there on a motorcycle driven by an unknown person. Rasheed armed with repeater and Muhammad Aamir armed with .244 bore rifle came out of the sugarcane crop. Imran and Qamar started abusing Alamgir whereupon complainant and Bashir came out of the mosque. Imran and Qamar made indiscriminate firing upon Alamgir with their respective weapons and the fire-shots landed on left side of his chest underneath armpit and left knee. Imran and Qamar also made firing upon the complainant party but they remained safe. The accused persons fled away while making aerial firing. Alamgir in injured condition was being shifted to hospital but on the way he succumbed to the injuries. Motive behind he occurrence was that Rasheed Ahmad was dismissed Assistant Sub-Inspector from police department whose sons were indulged in dacoities/robberies and were absconders. Police often raided their house for apprehending them. Few days prior to this occurrence, police raided their house for arresting them who managed to escape while Rasheed was arrested by police who was released on 16.08.2010 by the police. The accused persons suspected that Alamgir (deceased) gave information to the police and got conducted raid upon them. The accused persons after consultation and planning with others committed the murder of Alamgir (deceased).
3. Heard. Record perused.
4. This occurrence allegedly took place on 18.08.2010 at 8:30 p.m. whereas the matter was reported to the police on the same night at 10:30 p.m. The distance between police station and the place of occurrence is fourteen kilometers. There is a delay of about two hours in reporting the crime to the police without there being any plausible explanation. It is also worth mentioning here that while appearing before the learned trial Court both the witnesses of ocular account namely Muhammad Yousaf Gill, complainant (PW.10) and Bashir Ahmad (PW.11) did not utter even a single word about the above said delay. Therefore, I hold that this inordinate delay in setting the machinery of law in motion speaks volumes against the veracity of prosecution version. Reliance is placed on case law titled as “Altaf Hussain vs. The State” (2019 SCMR 274). Moreover, there is noticeable delay of about 15½ hours in conducting autopsy of the dead-body of Alamgir (deceased). 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 “Irshad Ahmed vs. The State” (2011 SCMR 1190) and “Nazeer Ahmed vs The State” (2016 SCMR 1628). Ocular account in this case consists of Muhammad Yousaf Gill, complainant (PW.10) and Bashir Ahmad (PW.11). The presence of both these PWs on the spot at the time of incident is doubtful in nature because they did not receive even a scratch during the incident. They allegedly saw the incident from a close distance but I failed to understand that in the presence of both these PWs who were sons of Alamgir how such tragedy with deceased could happen without any intervention on their part to rescue him. The delay in the FIR as well as post-mortem examination of the dead-body of deceased also casts doubt about their presence on the spot at the time of incident. Moreover, Muhammad Aslam ASI (PW. 17) has stated in his cross-examination that “It is correct that during the investigation on 13.09.2010 the complainant Yousaf told me that after the occurrence he was called by his brother via loudspeaker of the mosque wherein it was announced that some has committed murder of Alamgir”. The above extract of I.O. (PW. 17) negates the presence of both the eye-witnesses on the spot at the time of incident. The occurrence allegedly took place at night time and both the eye-witnesses allegedly saw the incident in the light of electric bulbs and tube lights but no electric bulb/tube light was taken into possession by the Investigating Officer during the course of investigation. In the FIR as well as before the learned trial Court it was the case of prosecution that Imran and Qamar Ishtiaq made indiscriminate firing upon Alamgir (deceased) and the fire-shots landed on left side of his chest below armpit and left knee. Admittedly, no specific injury on the person of deceased is attributed to the appellant. I have further noted that in the FIR as well as before the learned trial Court it was the case of complainant that the appellant was armed with pistol at the time of incident but nothing was recovered from him during the course of investigation. In the FIR as well as before the learned trial Court it was the case of complainant that the appellant and his co-convict namely Imran were the main perpetrators for causing fire-arm injuries on the person of Alamgir (deceased) but Muhammad Aslam ASI (PW. 17) has stated in his cross-examination that “It is correct that according to my investigation accused Qamar Ishtiaq, Amer Rasheed and Rasheed were found involved to the extent of conspiracy/ abetment. It is correct that on 18.11.2010, I confirmed my finding vide Zimni No. 26 dated 17.09.2010. It is correct that I have also given finding to the effect that the complainant party is insisting upon their involvement.” In a case of similar nature titled as “Safdar Mehmood and others vs. Tanvir Hussain and others” (2019 SCMR 1978), the Hon’ble Supreme Court of Pakistan has been pleased to observe as under:
“... nothing had been recovered from his custody during the investigation. For whatever its evidentiary value, the investigating agency had declared the appellant innocent. In this peculiar backdrop it could not have been concluded by the Courts below that the prosecution had succeeded in proving its case against the appellant beyond reasonable doubt”
Moreover, no solid evidence qua motive part of incident was produced by the prosecution during the trial. The medical evidence produced by the prosecution was not of much avail to the prosecution because the murder in issue had remained unwitnessed and, thus, the medical evidence could not point an accusing finger towards the appellant implicated in this case. Reliance is placed on case law titled as “Muhammad Saleem vs. Shabbir Ahmad and others” (2016 SCMR 1605). Therefore, I hold that the evidence furnished by the prosecution is shaky in nature and cannot be relied upon by maintaining the conviction/sentence of the appellant.
5. 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).
6. For the foregoing reasons, the appeal in hand to the extent of Qamar Ishtiaq (appellant) is allowed, conviction and sentence awarded to him vide judgment dated 20.07.2013 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. Qamar Ishtiaq (appellant) is present in the Court on bail. His surety is discharged from the liability of bail bonds.
7. In view of above discussion, Crl. Revision No. 647 of 2013 filed by complainant for enhancement of sentence of appellant as well as compensation imposed upon him having no merits is dismissed.
(A.A.K.) Appeal allowed
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