PLJ 2023 Cr.C. (Note) 149
[Lahore High Court, Lahore]
Present: Miss Aalia Neelum and Anwaarul Haq Pannun, JJ.
versus
STATE and another--Respondents
Crl. A. No. 20985, Crl. Rev. No. 24583 & M.R. No. 91 of 2019,
heard on 21.11.2022.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b)/34--Qatl-e-amd--Conviction and sentence--Challenge to--Benefit of doubt--Even otherwise, from tenor of statements of PWs, it is evidence that none of PWs had seen with their own eyes that appellant had committed murder of deceased in their presence, thus prosecution remained unable to prove complicity of appellant with regard to causing murder of deceased--The standard of proof required in cases of circumstantial evidence has been emphasized by Hon’ble Supreme Court of Pakistan--In absence of direct evidence, evidence of experts cannot point finger towards culprit, although post-mortem report confirms death of deceased and report of Chemical Examiner suggests possibility of human blood but cannot pinpoint person who caused indent--Prosecution has been disbelieved and discarded, therefore, mere medical evidence would be of no help for advancing cause of prosecution--Alleged recover of motorcycle has no legal sanctity--The alleged iron rod/Saria was recovered from an open place i.e. bank of Canal which was accessible to public-at-large, as such, same is nothing, but trash and had failed to render any corroboration to prosecution’s case--Who is main bone of contention had been acquitted of charge by extending her benefit of doubt through impugned judgment and appeal; filed by complainant was later on dismissed as withdrawn by counsel for complainant, passed by this Court, it can safely be concluded that prosecution has failed to prove it through cogent and convincing evidence--Court have noted that although CDR of Subscriber Identity Module (SIM) numbers mentioned in application an result has been tendered in evidence but in absence of any transcript of audio conversation, it is worthless--Even person who generated CDR, from system has not been produced; witness box, Therefore, no reliance can be placed on such inherently and legally flawed piece of evidence--Prosecution has miserably failed to prove its case against appellant beyond any shadow of doubt--The benefit of doubt has accrued in favour of accused as Hon’ble Supreme Court of Pakistan--Appeal allowed.
[Para 9, 12, 13, 14, 15, 16] A, D, E, F, G & H
1996 SCMR 188 & 2016 SCMR 1605.
Evidence--
----One tainted piece of evidence cannot furnish any corroboration to another tainted piece of evidence. [Para 9] B
2003 SCMR 1419 and 2016 SCMR 274.
Medical evidence--
----The medical evidence may confirm ocular evidence with regard to seat of injuries, nature of injury, kind of weapon used in occurrence but it would not cornet accused with commission of crime.
[Para 12] C
2009 SCMR 1410 & PLD 2009 SC 53.
Conviction--
----It is axiomatic and universal recognized principle of law that conviction must be founded on unimpeachable evidence and certainty of guilt and hence any doubt J that arises in prosecution case must be resolved in favour of accused. [Para 16] I
PLJ 2000 SC 1041.
Benefit doubt--
----It is cardinal principle of criminal jurisprudence that a single instance giving rise to a reasonable doubt in mind of Court entitles accused to benefit of doubt not as a matter of grace but as a matter of right. [Para 16] J
2009 SCMR 230 and 1995 SCMR 1345.
Mr. Kamran Javed Malik, Advocate for Appellants.
Mr. Muhammad Tariq Zafar, Advocate for Complainant (in Crl. Revision No. 24583/2019).
Rana Ahsan Aziz, Additional Prosecutor General for State.
Date of hearing: 21.11.2022.
Judgment
Anwaarul Haq Pannun, J.--This single judgment shall decide the above titled criminal matters, as all have arisen out of the one and the same judgment dated 30.03.2019, passed, in a criminal case/FIR No. 113, dated 11.02.2014, offences under Sections 365/302/ 148/149/109, PPC, registered at Police Station City Daska, District Sialkot, by the learned Addl. Sessions Judge, Daska, whereby while acquitting the co-accused Abdul Jabbar, Tayyab Ali and Mst. Asia Nawaz, the appellant Muhammad Azam has been convicted and sentenced ;as under:
“Under Section 302(b)/34, PPC
“Death sentence along-with Rs. 5,00,000/-as compensation u/S. 544-A, Cr.P.C. payable to the legal heirs of deceased or in default thereof, to undergo S.I. for six months”.
“Under Section 364, PPC”
“Rigorous Imprisonment for 10 years along-with Rs. 1,00,000/-and in default thereof to further undergo S.I. for six months.”
“The benefit of Section 382-B, Cr.P.C. is extended in favour of convict.”
2. The case of the prosecution as contained in written complaint (Exh.PC), on the basis of which, formal FIR (Exh.PC/1) was chalked out and reiterated by Muhammad Ilyas, complainant while appearing in the Court as (PW-3) is, to the effect that:
“that I identify all the accused, present before this Court. On 04.02.2014, my son namely Muhammad Asif (since deceased), having received a telephonic call, went out of the house. We made a search for 5/6 days but his whereabouts could not be traced out. Ultimately, on 10.02.2014, we lodged FIR against accused Muhammad Azam, Tayyab, Abdul Jabbar alongwith three unknown persons. We lodged FIR against Muhammad Azam and others because he was having friendship with my son Muhammad Asif (since deceased). Earlier to that engagement of Muhammad Asif was settled with Asia Bibi accused, who earlier had some illicit relations with accused Muhammad Azam. With respect to this, I submitted application Ex-PC, with the local police of the basis of which formal FIR Ex-PC/1, was lodged. As a token of its correctness, I made my thumb impression at the bottom of Ex-PC.
On 15.02.2014, Muhammad Saleem and Akhtar Hussain receiving some information that Muhammad Asif (since deceased) is missing, came to my house and told that on 4.2.2014, at about Shaam Vela 7:00, they were standing at a shop of Dudh Jalebi, situated in the area of Lorry Adda Daska. At that time, Muhammad Asif (since deceased) who was previously known to them alongwith one unknown person came at the shop and enjoyed Dudh Jalebi and then rided on a motorcycle of red colour and went towards Gujranwala. Then, I took Muhammad Saleem and Akhtar Hussain to PS City Daska, got recorded their statements with the police. Subsequently, on 11.02.2014, local police summoned me at police station and disclosed that they have received a telephonic call from Police Station Aroop that they had recovered a dead body from Nehar/canal, as a result of which for identification of dead body, we reached Civil Hospital, Gujranwala. We after identifying the dead body of deceased Muhammad Asif shifted the same to Civil Hospital, Daska. We got identified the dead body from the last worn clothes and a sweater, lastly worn by the deceased. On reaching the dead body of Muhammad Asif at Civil Hospital, Daska, doctor conducted post-mortem. Before autopsy we identified the dead body at Civil Hospital, Daska. After the post-mortem, doctor handed over last worn clothes of deceased to Munawar Mushtaq 131/C, who further delivered the said clothes to I.O. who took the same into possession vide recovery memo. attested by me and Muhammad Saleem.
On 24.02.2014, Asghar alongwith two persons came to me for offering Fateha. At that time, a photograph of the deceased was lying at Paiti. Having seen the said photo, Asghar and others said to me that they had seen him at Pul Sahib Rehan. At that time, he stayed there for a while for attending the call of nature when he saw that a person wearing Mitti Colour clothes gave a rod blow at the head of the person who was wearing clothes of Kalaiji colour. The person who was wearing clothes of Kalaiji colour is the same man whose picture is in front of them. Hearing the story, I took Asghar and two other persons to police station City Daska and got recorded their statements to police.
Since all the accused present before Court have committed murder of my innocent son Muhammad Asif, so they be punished for the maximum.”
3. After usual investigation and submission of challan, when confronted with the charges, the appellant pleaded not guilty and claimed trial. To bring the charge at home the prosecution had produced as many as 11 PWs. In his statement under Section 342, Cr.P.C., the appellant while re-affirming his stance of his innocence and false involvement in the case refuted the prosecution’s evidence. Without examining him under Section 340(2), Cr.P.C. the appellant produced Abdul Ghaffar as DW-1 along-with certain documents i.e. copy of registration book of motorcycle (Exh:DB), CDR of mobile phone No. 0342-4804579(Mark-DA/1-15) and affidavit of complainant (Mark-DB) in his defence. The learned trial Court on the conclusion of trial while acquitting co-accused Abdul Jabbar, Tayyab Ali and Mst. Asia Nawaz, convicted and sentenced the appellant as aforesaid.
4. Arguments heard and record perused.
5. It is pertinent to mention here that the appeal against acquittal of co-accused Abdul Jabbar, Tayyab Ali and, Mst. Asia Nawaz by the complainant bearing Crl. Appeal No. 24582 of 2019 (Sughran Bibi vs. Abdul Jabbar, etc.), on the statement of learned counsel for the complainant, had already been dismissed as withdrawn vide order dated 13.11.2019 by this Court.
6. Perusal of the record shows that on 10.02.2014, with a delay of six days of alleged occurrence, the complainant moved an application for registration of case alleging therein that on 04.02.2014, his son while receiving a telephonic call went outside the house and did not return; he showed his suspicion that the appellant along-with his co-accused (since acquitted), had abducted him as the appellant Muhammad Azam had illicit relations with Mst. Asia Bibi, co-accused, thus initially, the FIR (Exh:PC/1) was registered under Section 365, PPC. Later-on, after recovery of dead body of Muhammad Asif, deceased on 18.02.2014 from the Canal, the offence under Sections 302/148/149, PPC added.
7. Admittedly, the complainant is not an eye-witness of the alleged occurrence. He, on 15.02.2014, was informed by Muhammad Saleem (PW-4) and Muhammad Akhtar PW that on 04.02.2014 at about 7:00 p.m., they were standing at a Pan shop situated at Lorry Adda, Daska and saw the appellant and the deceased after taking “Dudh Jalebi” from a shop went towards Gujranwala. Furthermore, according to the complainant (PW-3), on 24.02.2014, Asghar along-with two persons after offering Fateha, upon seeing the photograph of the deceased informed him that they had seen him in Kalaiji colour clothes at Pul Sahib Rehan when a person wearing Mitti Colour clothes gave a rod blow at his head. According to the complainant
(PW-3), on 11.02.2014 after recovery of a dead body from canal by Police Station Aroop, they went Civil Hospital, Gujranwala, and identified the dead body of Muhammad Asif and shifted the same to Civil Hospital Daska. On 18.2.2014, Dr. Qamar Shehzad conducted post-mortem examination over the dead body, identified by the complainant and Muhammad Saleem PW.
8. The prosecution’s case hinges upon last seen evidence allegedly furnished by Muhammad Saleem (PW-4) and Muhammad Farooq (PW-7), followed by identification parade allegedly conducted under the supervision of Ch. Muhammad Arshad, Special Judicial Magistrate (PW-5), in which PW-4 and PW-7 identified the accused as a real perpetrator. In view of the above, the prosecution’s evidence has been evaluated in the light of case law reported as “Naveed Asghar and 2 others versus The State” (PLD 2021 Supreme Court 600) wherein, the august Supreme Court of Pakistan has defined the standards required for evaluating the circumstantial evidence, which for ready reference is reproduced as under:
14. The settled approach to deal with the question as to sufficiency of circumstantial evidence for conviction of the accused person is this; If, on the facts and circumstances proved, no hypothesis consistent with the innocence of the accused person can be suggested, the case is fit for conviction of the accused person on such to conclusion: however, if such facts and circumstances can be reconciled with any reasonable hypothesis compatible with the innocence of the appellant, the case is to be treated one of insufficient evidence, resulting in acquittal of the accused person. Circumstantial evidence, in a murder case, should be like a well-knit chain, one end of which touches the dead body of the deceased and the other the neck of the accused. No link in chain of the circumstances should be broken and the circumstances should be such as cannot be explained away on any reasonable hypothesis other than guilt of accused person. Chain of such facts and circumstances has to be completed to establish guilt of the accused person beyond reasonable doubt and to make the plea of his being innocent incompatible with the weight of evidence against him. Any link missing from the chain breaks the whole chain and renders the same unreliable; in that event, conviction cannot be safely recorded, especially on a capital charge. Therefore, if the circumstantial evidence is found not of the said standard and quality, it will be highly unsafe to rely upon the same for conviction; rather, not to rely upon such evidence will a better and a safer course.”
Muhammad Saleem, PW-4 during his examination-in-chief, stated that on 04.02.2014, at about 7:00 p.m. he along with Muhammad Akhtar were standing at a Pan shop situated at Lorry Adda Daska, in the meantime, Muhammad Azam accused alongwith Muhammad Asif (the deceased) came at a shop of Dudh Jalebi, they took Dudh Jalebi and went towards Gujranwala. On 15.02.2014, he disclosed the above fact/story to Muhammad Ilyas i.e. his Sala (bother-in-law) and also Mamuzad. On the complaint/application of the complainant (Exh:PC) since a case/FIR (Exh:PC/1) was lodged on 11.02.2014 against the appellant and his acquitted co-accused. Disclosing the above stated story of last seen on 15.02.2014 by PW-4, i.e. after 11 days of the alleged occurrence and 04 days after registration of the FIR seems to be highly doubtful when, PW-4 is closely related to the complainant as well as the deceased and was residing at about 03 kilometers away from the house of the complainant. Muhammad Saleem (PW-4) has also failed to justify his presence at Lorri Adda, Daska where he allegedly witnessed the deceased and the appellant while taking Dhudh Jalebi at milk shop. His evidence can safely be said to be the evidence of a chance witness. It has been held by the august Supreme Court of Pakistan in case reported as Mst. Rukhsana Begum and others versus Sajjad and others “(2017 SCMR 596) that:
“In ordinary parlance, a chance witness is the one who, in the normal course is not supposed to be present on the crime spot unless he offers cogent, convincing and believable explanation, justifying his presence there .............
“A single doubt reasonably showing that a witness/witnesses presence on the crime spot was doubtful when a tragedy takes place would be sufficient to discard his/their testimony as a whole. This principle may be pressed into service in cases where such witness/witnesses are seriously inimical or appears to be a chance witness because judicial mind would remain disturbed about the truthfulness of the testimony of such witnesses provided in a murder case, is a fundamental principle of our criminal justice system.”
It has also been held in case reported as “Mst. Sughra Begum and another versus Qaiser Pervez and others” (2015 SCMR 1142) that:
“A chance witness, in legal parlance is the one who claims that he was resent on the crime spot at the fateful time, albeit, his presence there was sheer chance as in the ordinary course of business, place of residence and normal course of events, he was not supposed to be present on the spot but at a place where he resides, carries on business or runs day to day life affairs. It is in this context that 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. True that in rare cases, the testimony of chance witness may be relied upon, provided some convincing explanations appealing to 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.”
Moreover, Muhammad Ilyas complainant (PW-3) during cross-examination deposed that accused namely Muhammad Azam and Abdul Jabbar are real brothers. Accused Tyyab and Asia Bibi are interse brother and sister and Chachazad of Muhammad Azam and Abdul Jabbar. Tayyab and Asia Bibi are children of his Sali namely Nusrat Bibi. Remaining accused namely Muhammad Azam and Abdul Jabbar have no relationship with me. However, earlier to occurrence. Muhammad Azam and Abdul Jabbar accused were known to me, meaning thereby, the appellant was already known to PW-3 and PW-4. This fact is further strengthened by PW-4 by stating during cross-examination that accused are Kumliars by caste. Ilyas complainant and Asif deceased were also Kumhar by caste. I am also Kumhar by caste. It is correct that all the PWs are also Kumhar by caste. They are related inter se except me. Apropos of above discussion, identification of the appellant as perpetrator by the aforesaid PWs had no legal sanctity.
9. So far as evidence of Muhammad Farooq (PW-7) is concerned, his evidence is also shaky and does not inspire confidence. He deposed that he along-with Abdul Ghafoor (given up PW) saw two persons i.e. Azam and Asif scuffling with each-other, Azam accused was giving blows of rod to Asif deceased. During cross-examination, PW-7 admitted that victim made noise/hue and cry but they did not either stop or intervene nor informed the police about the alleged occurrence. Moreover, there was a pitch darkness at the time of alleged occurrence and the alleged source of light i.e. motorcycle was not taken into possession by the police during investigation so as to substantiate the identity of the accused-appellant. The other witness namely Abdul Ghafoor has not been produced in the witness box for the reasons best known to the prosecution. Even otherwise, from tenor of the statements of the PWs, it is evident that none of the PWs had seen with their own eyes that the appellant had committed murder of the deceased in their presence, thus the prosecution remained unable to prove the complicity of the appellant with regard to causing the murder of Muhammad Asif, deceased. The standard of proof required in the cases of circumstantial evidence has been emphasized by the Hon’ble Supreme Court of Pakistan in the case of Sarfraz Khan vs. The State (1996 SCMR 188) in the following words:
“It is well settled that circumstantial evidence should be so inter-connected that it forms such a continuous chain that its one end touches the dead body and other neck of the accused thereby excluding all the hypothesis of his innocence.”
The Hon’ble Supreme Court of Pakistan time and again held that one tainted piece of evidence cannot furnish any corroboration to another tainted piece of evidence. Reliance is placed on the case of Khalid Javed and another vs. The State (2003 SCMR 1419). It has also been held in case reported as “Azeem Khan and another versus Mujahid Khan and others” (2016 SCMR 274) that:
31. As discussed earlier, that entire case of the prosecution is based on circumstantial evidence. The principle of law, consistently laid down by this Court is, that different pieces of such evidence have to make one chain, an unbroken one where one end of it touches the dead body and the other the neck of the accused. In case of any missing link in the chain, the whole chain is broken and no conviction can be recorded in crimes entailing capital punishment.
Reliance may also be placed upon “Nasir Javaid and another versus The State” (2016 SCMR 1144).
10. From the above stated statements of the PWs, it is evident that in this case, all the pieces of prosecution evidence do not inspire confidence and even the accumulative effect does not advance the case of the prosecution.
11. Now coming to the Identification Parade alleged conducted under the Supervision of Ch. Muhammad Arshad, Special Judicial Magistrate (PW-5), duly identified by PW-4 and PW-7 In the given circumstances of the case, when this Court has disbelieved the lastly seen evidence allegedly produced by the aforesaid PWs (PW-4 to PW-7), the same cannot be relied upon, despite the prosecution has made an abortive attempt to establish the identity of the appellant rather this effort amounts to over doing on its part, therefore, the identification of appellant during I.D parade is worthless. Needless to reiterate that PW-1 is not an eye-witness of the occurrence, therefore, his participation in proceedings of identification parade to establish the identity of the appellant is of no worth at all rather it fortifies the impression that the appellant had been shown to the PWs as PW-5 deposed during his examination-in-chief stated that “Earlier to conducting identification parade, accused Muhammad Azam raised an objection that he is known to the PWs.
12. Now coming to the medical evidence furnished by Dr. Qamar Shehzad (PW-2). The medical evidence may confirm the ocular evidence with regard to the seat of injuries, nature of injury, kind of weapon used in the occurrence but it would not connect the accused with the commission of crime. Reliance is placed upon case titled “Mursal Kazmi alias Qamar Shah and another vs. The State” 2009 SCMR 1410) and Muhammad Tasaweer vs. Hafiz Zulkarnain and 2 others “(PLD 2009 SC 53). Furthermore, in absence of direct evidence, evidence of experts cannot point finger towards the culprit, although the post-mortem report confirms the death of the deceased and report of Chemical Examiner suggests the possibility of human blood but cannot pinpoint the person who caused the incident. Since, the above discussed genres of the prosecution has been disbelieved and discarded, therefore, mere medical evidence would be of no help for advancing the cause of prosecution.
13. So far as recoveries i.e. weapon of offence iron rod/Saria (P-5) allegedly effected from the bank of Canal Sahib Rehan and motorcycle Honda CD-70, having Registration No. 4335/STK from the house of his brother-in-law namely Abbas, on pointing out of the appellant and seized by Muhammad Imran SI/I.O. (PW-10) through recovery memos Exh:E and Exh:PF, respectively, attested by the PWs Muhammad Shaheryar 613/C (PW-6) and Saif Ullah Constable is concerned, suffice it to observe that the prosecution witnesses had not given the particulars of the motorcycle either in the FIR or in the statement recorded under Section 161, Cr.P.C. and the same was also not recovered from exclusive possession of the appellant however, the same was recovered from the house of brother-in-law of the appellant namely Abbas, this in view of this situation, the alleged recover of motorcycle has no legal sanctity. The alleged iron rod/Saria (P-5) was recovered from an open place i.e. the bank of Canal Sahib Rehan, which was accessible to the public-at-large, as such, same is nothing, but trash and had failed to render any corroboration to the prosecution’s case. Reliance in this regard is placed upon case titled Muhammad Saleem vs. Shabbir Ahmad”(20l6 SCMR1605) that:
“We have noticed that the weapon in issue had allegedly been recovered from a place which was open and accessible to all and sundry and, thus, it was unsafe to place reliance upon such recovery.”
14. The motive part of the occurrence as alleged by the complainant Muhammad Ilyas (PW-3) is that “he came to know that Asia Bibi co-accused (since acquitted) had developed illicit relations with Muhammad Azam, accused who is her cousin (tayazad) and she wanted to marry her” earlier to that engagement of Muhammad Asif was settled with Asia Bibi accused, who earlier had some illicit relations with accused Muhammad Azam”, the said Mst. Asia Bibi, who is the main bone of contention had been acquitted of the charge by ex lending her the benefit of doubt through the impugned judgment and appeal filed by the complainant was later on dismissed as withdrawn by the learned counsel for the complainant, vide order dated 13.11.2019, passed by this Court, it can safely be concluded that the prosecution has failed to prove it through cogent and convincing evidence.
15. As far as CDR allegedly collected by Muhammad Imran, SI/IO (PW-10) regarding the deceased and the accused persons is concerned, I have noted that although CDR of the Subscriber Identity Module (SIM) numbers mentioned in the application Exh:PH an the result Exh:PH/2 has been tendered in evidence but in absence of any transcript of the audio conversation, it is worthless. Even the person who generated the CDR, from the system has not been produced in the witness box, Therefore, no reliance can be placed on such inherently and legally flawed piece of evidence.
16. For what has been discussed above, the prosecution has miserably failed to prove its case against the appellant beyond any shadow of doubt. The benefit of doubt has accrued in favour of accused as the Hon’ble Supreme Court of Pakistan has held in case titled “Muhammad Khan and another vs. State” (PLJ 2000 SC 1041) that it is axiomatic and universal recognized principle of law that conviction must be founded on unimpeachable evidence and certainty of guilt and hence any doubt that arises in prosecution case must be resolved in favour of accused. Moreover, it is cardinal principle of criminal jurisprudence that a single instance giving rise to a reasonable doubt in the mind of Court entitles the accused to the benefit of doubt not as a matter of grace but as a matter of right. Reliance is placed on case titled as “Muhammad Akram versus The State” (2009 SCMR 230) and “Tariq Pervaiz vs. The State” (1995 SCMR 1345). Consequently, the instant Appeal is allowed, the conviction judgment dated 30.03.2019 passed by learned trial Court is set aside and the appellant is acquitted of the charge by extending him the benefit of doubt. The appellant Muhammad Azam is directed to be released forthwith, if not required in any other case, whereas the Crl. Revision No. 24583 of 2019 filed by the complainant is dismissed. The death sentence awarded to the appellant is not confirmed and Murder Reference No. 91/2019 is answered in negative.
(A.A.K.) Appeal allowed
0 Comments