PLJ 2023 Cr.C. (Note) 128
[Lahore High Court, Multan Bench]
Present: Sohail Nasir, J.
ABDUL GHAFOOR--Appellant
versus
STATE and another--Respondents
Crl. A. No. 437 of 2013, heard on 5.10.2021.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b)/34--Qatl-e-amd--Conviction and sentence--Challenge to--Chance witness--Burden of proof--Appreciation of evidence--Testimony of chance-witness--Medical evidence--The version of appellant has already been reproduced in earlier paragraphs of this judgment--Although once prosecution’s story is disbelieved, principles do not permit Court to discuss defence plea however, to do complete justice Court have also gone through evidence from this angle--Inspector RIB was one who made further investigation--In cross-examination he admitted almost version of appellant which he had taken in this case not only before trial Court but also at stage of Investigation--As occurrence has not been disputed but with different versions so discussion on recovery of stone at instance of appellant will play no role particularly when none of those stones were blood stained--There is no need to discuss medical evidence for reason that at most this is a corroborative piece of evidence and that death of deceased has been not disputed at given date and time--These are settled principles of law that prosecution is under burden to prove its case beyond reasonable doubt and in failure to do so, accused shall be entitled for acquittal not as a matter of grace but as a matter of right--Trial Court although appreciated evidence but without application of judicial mind and by ignoring settled principles on subject, so this takes me to an ultimate conclusion that prosecution has completely failed to prove its case beyond reasonable doubt against appellant hence this criminal appeal is allowed.
[Para 17, 18, 19, 20 & 21] B, C, D, E & F
PLD 1977 SC 515, 2017 SMCR 724 & 2011 SCMR 941.
Chance witness--
----Testimony of--It is settled principle of law that testimony of a chance witness cannot be believed if he is unable to disclose any valid and acceptable reason for his presence at place of crime.
[Para 14] A
2014 SCMR 1698 & 2017 SCMR 622.
Khawaja Waqas Jalil Advocate for Appellant.
Mr. Muhammad Laeeq-ur-Rehman, Assistant Deputy Public Prosecutor for State.
Date of hearing: 5.10.2021.
Judgment
This criminal appeal is directed against judgment dated 24.09.2013 passed by the learned Additional Sessions Judge Mailsi District Vehari on the basis of which Abdul Ghafoor (appellant) was convicted under Section 302(b), PPC and sentenced, to life imprisonment. He was ordered to pay Rs. 100000/-(one lac) as compensation in terms of Section 544-A, Cr.P.C., to the legal heirs of deceased and in default thereof to undergo six months SI. Benefit of Section 382-B, Cr.P.C. was also extended to him. By way of same judgment Muhammad Amjad, who has not appealed, was also convicted under Sections 337-A(i), PPC to pay Daman of Rs. 20,000/-and to undergo two years RI as Tazir. The conviction and sentence of appellant is outcome of case FIR No. 269 (PG/1) recorded on 03.07.2012 under Sections 302/34 PPC at Police Station Tibba Sultanpur District Vehari.
2. Facts of the case are that Ghulam Mustafa SI (PW-8) was present at Maitla Chowk on official duty where Muhammad Hussain (PW-6) appeared and made the statement (PG). He maintained that on 02.07.2012 at about 05:30/06:00 p.m., he along with Baz Muhammad (deceased) and Saif Ullah (PW-7) residents of Rukanpur were going to play cricket near the Dera of Khawaja Muhammad Mehmood, where emerged. Abdul Ghafoor (appellant), Abdul Shakoor, Muhammad Amjad and an unknown person, who started abusing Baz Muhammad; the latter in return also used same language and then both the sides grappled with each other; appellant inflicted an injury near the right ear of Baz Muhammad with a stone; Muhammad Amjad also gave an injury on the right cheek of Baz Muhammad with stone; Abdul Shakoor and unknown persons gave kicks and fists blows; Baz Muhammad being semi un-conscious fell down on the ground; in the meantime Munir Ahmad arrived there and accused had escaped. The motive alleged was that few days earlier there was exchange of hot words between Abdul Ghafoor etc., and Baz Muhammad etc. Baz Muhammad was taken to Nishtar Hospital where he had died.
3. The above statement after endorsement was sent to police station through Nasir Iqbal Constable on the basis of which FIR (PG/1) was recorded by Abdul Qayyum/HC (PW-4).
4. On conclusion of investigation a report under 173, Cr.P.C. (Challan) was submitted in Court.
5. A charge under Sections 302/34, PPC against appellant and his co-accused Muhammad Amjad and Abdul Shakoor framed was not pleaded guilty by them, where after prosecution had produced Dr. Abdul Majeed (PW-1), Ejaz Latif/draftsman (PW-2), Muhammad Aslam/Constable (PW-3), Abdul Qayyum HC/author of FIR (PW-4), Dr. Tariq Nawaz (PW-5), Muhammad Hussain/complainant (PW-6), Saif Ullah/eye witness (PW-7) and Ghulam Mustafa SI (PW-8). The learned trial Court also examined Muhammad Aslam Inspector, Regional Investigation Branch Multan as CW-1.
6. In his examination made under Section 342, Cr.P.C. version of appellant was as under:
“There was no enmity between Baz Muhammad deceased and us. In fact on the day of occurrence I was playing cricket in ground and I was making water near the watercourse. Saif Ullah PW passed nearby me and he felt that I was intentionally insulting him. Saif Ullah and I exchanged hot words and abused with each other. Saif Ullah went away and after 20/25 minutes Saif Ullah PW along with Baz Muhammad and other came in the cricket ground. Baz Muhammad was having Wahola with him at that time. Complainant party made an attempt to assault. PW Saif Ullah fall me on the ground. The boys who were playing cricket snatched Wahola from Baz Muhammad and bricks throw started from the both sides and a brick bat of an unknown person hit Baz Muhammad and he was injured. Prior to 20/25 day of occurrence Saif Ullah PW took my motorcycle on rent and when he returned the same some parts of motorcycle were missed. I demanded the compensation of said loss. Due to the intervention of the respectable payment was made to me but Saif Ullah PW expressed grudge with me. Saif Ullah Pw felt insult of him. It is also result of enmity between Saif Ullah and me. Due to above said reason complainant falsely involved me and others. All the Pws are manager and servants of Khawaja Mehmood and Hammad, who were inimical to Khawaja Khalil. My father is drive of Khawaja Khalil Ahmad. Due to this reason Khawaja Mehmood and Hammad involved me in this case falsely.”
7. Appellant opted not to appear in terms of Section 340(2), Cr.P.C. or to produce defence evidence.
8. Learned counsel for appellant contended that the presence of both eye-witnesses cannot be believed because they were the chance witnesses having no reason to be at the venue of crime at the relevant time and time; delay in reporting the matter to police without any explanation itself indicates serious doubt in prosecution’s story; statements of witnesses are suffering from serious contradictions; the version of appellant was in existence from day one and that is also supported from the prosecution’s story. He finally maintained that as prosecution has failed to prove its case therefore, his client is entitled for acquittal.
9. On the other hand, learned Assistant Deputy Public Prosecutor argued that it was a daylight occurrence hence there was no question of misidentification because parties were, known to each other; the eye-witnesses have specifically explained the reasons for their presence at crime scene; no contradictions are there in the statements of two witnesses whereas, minor lapses are to be ignored as those occur with the passage of time; although there is a delay in reporting the matter to police but as there was no enmity between the parties, therefore, question of false involvement does not arise; medical evidence has fully corroborated the ocular account. He finally argued that the learned trial Court by assigning valid reasons had rightly convicted the appellant in this case.
10. HEARD.
11. Occurrence in this case had taken place on 02.07.2012 at about 05:30/06:00 p.m. whereas FIR was recorded on 03.07.2012 at about 07:05 am that means after about 14 hours. The complaint (PG) shows that statement Muhammad Hussain/complainant was recorded at 05:30 a.m. so even from this angle the information to police was provided after about 12 hours. Not a single word was stated about this delay in the said document.
12. When Muhammad Hussain (PW-6) was asked in this context, he replied that the matter was reported to police on the next day of the occurrence which finally means that first time police was taken in confidence on the next morning and not before that.
13. The duration of 12 hours was quite enough for deliberations, fabrications and concoctions keeping in view the peculiar facts and circumstances of this case because in this occurrence allegedly only two stones were used one by appellant and other by Muhammad Amjad who were assigned one injury each. The delayed FIR, therefore, in this case has earned many questions so it will certainly affect the prosecution’s story.
14. Both Muhammad Hussain (PW-6) and Saif Ullah (PW-7) are the chance witnesses for the reason that they were residents of Rukanpur and that was at a distance of about 5/7 Kilometers from the crime scene. Muhammad Hussain was completely failed to tell any specific instance for his presence at the place of occurrence on the relevant day and time. Similarly Saif Ullah (PW-7) had too no explanation that why he was present at a considerable distance from his house, which was the crime scene? It is important to mention here that he/Saif Ullah admitted in cross-examination that he was not familiar with the sports of Cricket. In these circumstances, for him also to be present with Baz Muhammad deceased seems to be unreasonable and unbelievable. It is the settled principle of law that the testimony of a chance witness cannot be believed if he is unable to disclose any valid and acceptable reason for his presence at the place of crime. See: Muhammad Rafique vs. The State 2014 SCMR 1698 and Usman alias Kaloo vs. The State 2017 SCMR 622).
15. The statements of both eye-witnesses are also suffering from serious contradictions. According to Muhammad Hussain when the occurrence was over, they had taken Baz Muhammad in injured condition to Nishtar Hospital; they made no attempt to take the injured to any other hospital and straightaway they moved to Nishtar Hospital. He also responded that no doctor had advised them to shift the injured in Nishtar Hospital. He finally replied that as the condition of the Baz Muhammad was serious so they rushed to the hospital. When on this area Saif Ullah (PW-7) was cross-examined, he replied that they took the injured at a distance of one Acre from place of occurrence; one doctor was called from Jahanian, who checked the injured and advised that condition of injured was serious.
16. As mentioned earlier occurrence took place at 05:30/06:00 p.m. and if Baz Muhammad in injured condition was shifted to hospital immediately, why he was medically examined on 03.07.2012 at about 01:00 a.m. that means with a delay of about 06/07 hours? This also indicates and confirms that prosecution’s story is not the one which has been posted in this case.
17. The version of appellant has already been reproduced in earlier paragraphs of this judgment. Although once prosecution’s story is disbelieved, the principles do not permit the Court to discuss the defence plea however, to do the complete justice I have also gone through the evidence from this angle. Muhammad Aslam Inspector RIB was the one who made further investigation. In cross-examination he admitted almost the version of appellant which he had taken in this case not only before the trial Court but also at the stage of investigation.
18. As the occurrence has not been disputed but with different versions so discussion on recovery of stone at the instance of appellant will play no role particularly when none of those stones were blood stained.
19. There is no need to discuss the medical evidence for the reason that at the most this is a corroborative piece of evidence and that the death of Baz Muhammad has been not disputed at the given date and time.
20. These are the settled principles of law that prosecution is under burden to prove its case beyond reasonable doubt and in failure to do so, accused shall be entitled for acquittal not as a matter of grace but as a matter of right. See: Rehmat alias Rahman alias Waryam alias Badshah vs. The State PLD 1977 SC 515 Nasrullah alias Nasro vs. The State 2017 SCMR 724, Abdul Majeed vs. The State 2011 SCMR 941).
21. The learned trial Court although appreciated the evidence but without application of judicial mind and by ignoring the settled principles on the subject, so this takes me to an ultimate conclusion that prosecution has completely failed to prove its case beyond reasonable doubt against appellant hence this criminal appeal is allowed. Impugned judgment dated 24.09.2013 is set aside. Appellant is acquitted from the case. He was released on bail by this Court therefore his surety is discharged from terms and conditions of bail bonds.
(A.A.K.) Appeal allowed
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