PLJ 2023 Cr.C. (Note) 123
[Lahore High Court, Lahore]
Present: Shehram Sarwar Ch. and Ali Zia Bajwa, JJ.
AHMAD JAMSHED HAROON--Appellant
versus
STATE--Respondent
Crl. A. No. 94026 & M.R. No. 574 of 2017, heard on 24.6.2021.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conviction and sentence--Challenge to--Benefit of doubt--Qatl-e-amd--Ocular account--Motive--Quarrel between spouses--Medical evidence--Testimony of chance witnesses--Delay in reporting crime--Delay in post-mortem--Quarrel between spouses is not A unusual in our culture--Moreover, no independent witness qua motive was joined by police in investigation or produced by prosecution before trial Court during trial--Prosecution has failed to substantiate motive against appellant--Medical evidence produced by prosecution was not of much avail to prosecution 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--Appeal allowed.
[Para 9 & 11] D, E & F
2016 SCMR 1605
Delay in reporting crime--
----Inordinate delay in setting machinery of law in motion speaks volumes against veracity of prosecution version. [Para 5] A
Delay in post-mortem--
----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 bodies of deceased which happens only when complainant and police remain but in consultation and preliminary inquiry regarding culprits in such cases of unwitnessed occurrence. [Para 5] B
2011 SCMR 1190 & 2016 SCMR 1628.
Testimony of chance witness--
----The testimony of chance witness ordinarily is not accepted unless justifiable reasons are shown to 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 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. [Para 6] C
2014 SCMR 1197 & 2014 SCMR 1698.
Benefit of doubt--
----It is also well established that if there is 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 11] G
2009 SCMR 230.
M/s. Munir Ahmad Bhatti, Mian Muhammad Asif Hayat and Kamran Javed Malik, Advocates Appellant.
Rana Muhammad Arif Kamal Noon, Prosecutor General for State.
Hafiz Ansar-ul-Haq, Advocate for Complainant.
Date of hearing: 24.6.2021.
Judgment
Shehram Sarwar Ch. J.--Ahmad Jamshed Haroon (appellant) was tried by the learned Addl. Sessions Judge, Faisalabad in case FIR No. 587 dated 22.07.2013, offence under Section 302, PPC registered at Police Station Millat Town District Faisalabad for the murder of Mst. Muqaddus Rasheed (deceased) sister of complainant. Vide judgment dated 23.09.2017 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. 4,00,000/- (rupees four 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 then appeal in hand whereas the learned trial Court has sent Murder Reference No. 574 of 2017 for confirmation or otherwise of 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.PH/2) registered on the statement (Ex.PH) of Anwar Rasheed, complainant (PW.6) is that on 21.07.2013, he along with Javed and Nasir Munir went to the house of his sisters situated at Gatti School on the occasion of Eid and after Esha prayer slept there. On 22.07.2013 at around 4.00 a.m. the complainant and his companions heard noise from the room of Mst. Muqaddus Rasheed and went inside the room where they saw that Ahmad Jamshed Haroon brother-in-law of complainant was strangulating Mst. Muqaddus Rasheed by putting a knot around her neck. At that time, the light of room was switched on. The complainant party tried to rescue his sister but she lost her life. Meanwhile, Ahmad Jamshed Haroon escaped from the spot. Motive behind the occurrence as alleged in the FIR was family disputes between the spouses.
3. After completion of investigation, report under Section 173, Code of Criminal Procedure was submitted in this case. The appellant was summoned by the learned Addl. Sessions Judge, Faisaiabad to face the trial. Copies of relevant documents were provided to him, as required under Section 265-C, Code of Criminal Procedure and formal charge under Section 302, PPC was framed against him on 04.07.2015, to which he pleaded not guilty and claimed trial. Statement of the appellant under Section 342 of the Code of Criminal Procedure was recorded on 26.07.2017, wherein he refuted all the prosecution allegations levelled against him and professed his innocence. The appellant neither opted to appear as his own witness, in disproof of the allegations levelled against him, as provided under Section 340(2), Code of Criminal Procedure nor did he produce any defence evidence. However, after conclusion of trial, the learned trial Court convicted and sentenced the appellant, as detailed above. Hence this appeal and murder reference.
4. We have heard learned counsel for the parties as well as the learned Prosecutor General for the State at a considerable length and have also gone through the record very minutely.
5. The occurrence in this case allegedly took place on 22.07.2013 at 4:00 a.m. whereas the matter was reported to the police on the same day at 8:45 a.m. The distance between police station and the place of occurrence is just eight kilometers. There is a delay of four hours and forty five minutes in reporting the crime to the police without any plausible explanation. It is also worth mentioning here that while appearing before the learned trial Court all the witnesses of ocular account namely Anwar Rasheed, complainant (PW.6), Javed (PW.7) and Nasir Munir (PW.9) did not utter even a single word about the above said delay. Therefore, we 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, the autopsy of the dead-body of the deceased was conducted about eight hours and twenty minutes after the death of the 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 bodies of the deceased which happens only when the complainant and police remain but 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 SCMP 1190) and “Nazeer Ahmed vs the State” (2016 SCMR 1628).
6. Ocular account in this case consists of Anwar Rasheed, complainant. (PW.6), Javed (PW.7) and Nasir Munir (PW.9). The presence of all these PWs on the spot at the time of incident is doubtful in nature because had they been present on the spot at relevant time, why they did not try to rescue the deceased or to catch hold of the appellant, who admittedly was not armed with any fire-arm to ward the said eye-witnesses off or to keep them away at the time of incident. In this regard, reliance may be placed on the case law reported as ‘Irshad Ahmed vs. The State” (2011 SCMR 1190). The delay in the FIR as well as conducting autopsy of the dead-body of deceased also casts doubt about their presence on the spot at relevant time. The offence allegedly took place at night time and all the eye-witnesses allegedly saw the occurrence in the light of room but no light was taken into possession by the police during the course of investigation. We have further observed that all the witnesses of ocular account were chance witnesses because it has been brought on record through cross-examination of complainant (PW.6) that their houses were about seventy five kilometers away from the place of occurrence. All these PWs have no agricultural land or place of business near the place of occurrence. Before the learned trial Court they have not given any plausible reason for their presence on the spot at the time of incident. 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 Shaizia Parveen vs. The State” (2014 SCMR 1197) and “Muhammad Rafique vs. The State” (2014 SCMR 1698). Moreover, the most material witness of the occurrence was Mst. Majsar Rasheed, who as per contents of FIR was sister of complainant as well as deceased and married in the same house but she was not produced by the prosecution during the trial. Therefore, the prosecution withheld the best available evidence and in view of Article 129(g) of Qanoon-e-Sbahdat Order, 1984, adverse inference, that had this witness been produced before the learned trial Court she would not have supported the prosecution case, can safely be drawn against the prosecution. Reliance in this respect is placed on the esteemed judgments passed by the Hon’ble Supreme Court of Pakistan in the cases of “Lal Khan vs The State” (2006 SCMR 1846) and “Muhammad Rafique and others vs. The State and others” (2010 SCMR 385). In the case of Muhammad Rafique and others, supra, the Hon’ble Supreme Court of Pakistan was pleased to observe as under:
“33. ...It is well-settled that if any party withholds that best piece of evidence then it can fairly be presumed that the party had some sinister motive behind it. The presumption under Article 129 (g) of Qanun-e-Shahadat Order can fairly be drawn that if P.W. Amir Ali could have been examined, his evidence would have been unfavourable to the prosecution...”
Therefore, we hold that the evidence of above three eye-witnesses is shaky in nature and cannot be relied upon for maintaining the conviction/sentence of the appellant.
7. Motive behind the occurrence as alleged in the FIR was family disputes between the spouses. The following portion of cross-examination of Anwar Rasheed, complainant (PW.6) is relevant which is reproduced as under:
“I gave the detail of motive part to the I.O of the case. The accused was not earning anything and he was addict as well as gambler. Confronted with statement ExPH where the detail of motive part is not given”.
We may observe here that the quarrel between the spouses is not unusual in our culture. Moreover, no independent witness qua motive was joined by police in investigation or produced by prosecution before the learned trial Court during trial. Therefore, we hold that prosecution has failed to substantiate motive against the appellant.
8. So far as alleged recovery of dupatta at the instance of Ahmad Jamshed Haroon (appellant) is concerned the same is immaterial, because it was an ordinary thing, easily available in the market.
9. 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).
10. 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 are exculpatory in nature.
11. 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 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).
12. For the foregoing reasons, Criminal Appeal No. 94026 of 2017 filed by the appellant is allowed, conviction and sentence awarded to him vide judgment dated 23.09.2017 passed by the learned Add! Sessions Judge, Faisalabad are set aside and the appellant is acquitted of the charge levelled against him while extending him benefit of doubt. Ahmed Jamshed Haroon appellant is in jail. He shall be released. forthwith if not required to be detained in any other case.
13. Murder Reference No. 574 of 2017 is answered in the NIEGATIVE and the sentence of death awarded to Ahmed Jamshed Haroon (convict) is NOT CONFIRMED.
(A.A.K.) Appeal allowed
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