PLJ 2023 Cr.C. (Note) 207
[Lahore High Court, Lahore]
Present: Miss Aalia Neelum, J.
HAQ NAWAZ etc.--Appellants
versus
STATE etc.--Respondent
Crl. A. No. 60094-J & 60096 of 2019, heard on 8.9.2022.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Qatl-e-amd--Benefit of doubt--Conviction and sentence--Challenge to--There was apparent conflict between site plans and ocular testimony incapable of being reconciled by any amount of argument and persuasion--In these circumstances presences of eye witnesses at place of occurrence has become highly doubtful--It is also not a case of prosecution that complainant (PW-7) asked “one student” (unknown) to prepare a complaint and accordingly complaint was prepared by “one student” (unknown), which was shown to complainant, read over to him and same was signed by complaint--Even complainant had not given any explanation regarding delay in lodging report and about preparation of complaint, in complaint as well as in his statement before learned trial court, therefore, in these circumstances chance of consultations and deliberations, on part of complainant, cannot be ruled out--It creates doubt in prosecution case--Besides, testimony of prosecution witnesses regarding motive and recovery of weapon is rightly not believed by trial court--Whole prosecution case seems to be hinging upon conjectures and surmises and it had badly failed to lead incriminating, corroborative/independent evidence to bring home guilt of accused in case of capital charge--Trial court was’ not justified in convicting appellant while basing upon such un-trustworthy, un-corroborated evidence and conviction passed by learned trial court in circumstances is against all cannons of law recognized for dispensation of criminal justice--As per dictates of law, benefit of every doubt is to be extended in favour of accused--Appeal accepted. [Para 11, 12 & 14] A, B, C & E
PLD 2008 SC 349 and 2009 SCMR 230.
Testimony of witness--
----It is settled principle of law that if ocular testimony of a witness is to be disbelieved against a particular set of accused and is to be believed against another set of accused facing same trial then court must search for independent corroboration on material particulars as has been held in number of cases decided by Superior Courts.
[Para 13] D
2016 SCMR 1763.
Principle of Law--
----It is golden principle of law that Court should let off 100 guilty but should not convict one innocent persons. [Para 14] F
PLD 2002 SC 1048.
Mr. Falak Sher Bakhsh Gill, Advocate for Appellant.
Rana Ahsan Aziz, Deputy Prosecutor General, for State.
Ms. Ifnan Ubeer Rai, Advocate for Complainant.
Date of hearing: 8.9.2022.
Judgment
The appellant-Haq Nawaz son of Punu Khan, caste Kharal, resident of Chak No. 388/G.B, Tehsil Samundri, District Faisalabad, was involved in case F.I.R. No. 431 of 2014, dated 23.12.2014. offence under Sections 302, 34, PPC, registered at Police Station Saddar Samundri, District Faisalabad and was tried by the learned Additional Sessions Judge, Samundri. District Faisalabad. The learned trial court seized with the matter in terms of judgment dated 31.07.2019, convicted the appellant-Haq Nawaz under Section 302 (b), PPC and sentenced him to undergo simple imprisonment for life as Tazir for committing Qatl-e-Amd of Muhammad Ashraf. The appellant was also directed to pay Rs. 1,00,000/- as compensation to the legal heirs of deceased under Section 544-A of Cr.P.C. and in case of default in payment thereof, to further undergo 04-months simple imprisonment. The benefit of Section 382-B of Cr.P.C. was also extended in favour of the appellant.
2. Feeling aggrieved by the judgment of the learned trial court, the appellant-Haq Nawaz has assailed his conviction through filing instant Criminal Appeal No. 60094-J of 2019, whereas the complainant being dis-satisfied with the impugned judgment dated 31.07.2019, preferred a Criminal Revision No. 60096 of 2019 for enhancement of sentence of the Respondent No. 1/appellant. As both the matters are arising out of one and the same judgment, therefore, they are being disposed of through a single judgment.
3. The prosecution story as alleged in the F.I.R (Ex.PB) lodged on the application (Ex.PH) of Muhammad Akram (PW-7)-the complainant is that on 23.12.2014 at about 09:00 a.m, he (PW-7) along with his brothers Muhammad Ashraf (the deceased), Muhammad Arshad (PW-8) and their guest Rizwan (given up PW) was going on foot towards their fields. Muhammad Ashraf (the deceased) was going ahead and when they reached front of the house of Muhammad Ali Watto, suddenly Haq Nawaz (the appellant) and Muhammad Usman (co-accused since convicted) while armed with rifles came there on a motorcycle. Haq Nawaz (the appellant) raised lalkara that today Muhammad Ashraf be done to death and he be given a taste for registration of case and they both alighted from motorcycle. Haq Nawaz (the appellant) made fire shots, which hit to Muhammad Ashraf on his left thigh, right leg, right arm and on back of his right side. Usman co-accused since convicted) made fire shots, which hit on thumb of left hand and left arm pit of Muhammad Ashraf and he (brother of complainant fell down. Khalid alias Khaldi along with one unknown person while armed with rifles was standing at some distance on motorcycle and they were making firing and threatening that if someone came near, he would be done to death and thereafter they fled away while firing. The complainant and PWs attended Muhammad Ashraf, who succumbed to the injuries at the spot. The occurrence was committed on the instigation of Muhammad Abid alias Aabi (co-accused since acquitted). The motive behind the occurrence was that a criminal case FIR No. 358/2014 under Section 324/148/149, PPC was got registered by Muhammad Ashraf (the deceased) at P.S. Saddar Samundri against Muhammad Usman (co-accused since convicted) and others and they were extending threats of life for pursuing the case but deceased remained adamant and due to said grudge, the accused persons with consultation committed the occurrence.
4 & 5. After registration of case, the investigation of this case was entrusted to Faryad Ali, S.I (PW-10) and Muhammad Nawaz A.S.I (PW-11), who having found the accused/appellant guilty, prepared report under Section 173, Cr.P.C. and sent the same to the court of competent jurisdiction. The learned trial court formally charge sheeted the appellant to which he pleaded not guilty and claimed trial. The prosecution in support of its version produced as many as eleven (11) prosecution witnesses. The appellant was also examined in terms of Section 342, Cr.P.C., wherein he neither opted to- appear as his own witness in terms of Section 340(2), Cr.P.C., nor produced any defence evidence.
6. The learned trial court after recording evidence and evaluating the evidence available on record in the light of the arguments advanced from both sides, found the prosecution version proved beyond any shadow of reasonable doubt, which resulted into conviction of the appellant in the afore stated terms.
7. I have heard the arguments advanced by the learned counsel for the parties and have minutely perused the record available on the file.
8. In the instant case the occurrence had taken place on 23.12.2014 at about 09:00 a.m., inter-se distance between the place of occurrence and the police station is 22 kilometers. Whereas incident was reported to Faryad Ali S.I. (PW-10) by Muhammad Akram (PW-7)-the complainant, brother of Muhammad Ashraf-deccased, at 09:45 a.m. through written complaint (Exh.PH) at Faisalabad Road, near Adda Tin Pullian, whet sent the said written complaint (Exh.PH) to police station through Muhammad Saleem 2009/Constable, whereupon Ali Sher 5443/Constable (PW-2) chalked F.I.R. (Exh.PB) on 23.12.2014 at 10:15 a.m. Thereafter, investigation was entrusted to Faryad Ali S.I. (PW-10)-investigating officer. Muhammad Akram (PW-7)-the complainant deposed during examination-in-chief that, “I moved application Ex.PH for registration of case which bearing my thumb impression Ex.PH/1.” Whereas, during cross-examination Muhammad Akram (PW-7)-the complainant deposed that, “The police attracted at the spot after one hour after the time of occurrence. I did not make any telephonic call to police.” Contrary, to the deposition of Muhammad Akram (PW-7)-the. complainant, Faryad Ali S.I. (PW-10)-investigating officer deposed during examination-in-chief that, “On 23.12.2014, I was posted at P.S Sadar, Samundri as SI. On the same day, I along with other police officials on official vehicle were present at ‘Adda Tin Pullian’ in connection with patrolling where Muhammad Akram complainant of the case appeared before me at 09:30 a.m and produced an application Ex.PH. Upon which, I wrote police proceeding Ex.PH/2 and sent to police station for registration of FIR through Muhammad Saleem 2009/C. I proceeded to the spot. Muhammad Saleem 2009/C at 10:45 a.m appeared before me along with FIR and other police papers.” Even from the police proceedings (Exh.PH/2) endorsed at the bottom of written complaint (Exh.PH) by Faryad Ali S.I. (PW-10)-investigating officer, it reveals that same was recorded at 09:45 a.m. The police proceedings endorsed at the bottom of the F.I.R. (Ex.PB) reveals as under:
حسب آمد تحریری استغاثہ پر رپورٹ ابتدائی اطلاعی ہذا بجرم مذکور مرتب کی جا کر نقل مثل پولیس مع اصل تحریری استغاثه بمراد تفتیش بدست ارنده کنسٹیبل عقب انچارج انویسٹی گیشن ارسال ہے جناب SHO صاحب بکار سرکار علاقہ میں ہیں جنکو اطلاع وقوعہ ہذا دی گئی ہے نیز سپیشل رپورٹ بخدمت افسران بالا مرسل کی جارہی ہے۔
The place where the incident was reported was highly doubtful and this doubt was reinforced from the deposition of Faryad Ali S.I. (PW-10)-investigating officer. Whereas, Ghulam Abbas (PW-5) deposed during cross-examination that, “We received information about the occurrence at Faisalabad road whercfrom I along with the I.O went to the place of occurrence. Many persons were present at the place of occurrence. The I.O had been inquiring from the relatives of the deceased regarding the manner of occurrence at the place of occurrence.” Faryad Ali S.I. (PW-10)-investigating officer deposed during cross-examination that, “I have nowhere mentioned in the file that Muhammad Saleem constable came back from police station with the file of this case, to the place of occurrence……..I have also not mentioned that I have recorded statement of Muhammad Saleem 2009/C.” From the evidence of Faryad Ali S.I. (PW-10)-investigating officer it reveals that after receiving FIR and other police documents at 10:45 a.m., he (PW-10) inspected the dead body and sent the dead body for post-mortem examination, in this regard Faryad Ali S.I. (PW-10)-investigating officer deposed during examination-in-chief that, “I inspected the dead body, noted the injuries of deceased and sent the dead body through Ghulam Abbas Constable to THQ Hospital Samundri for post-mortem examination along with witnesses of identification of dead body.” Contrary to above, Faryad Ali S.I. (PW-10)-investigating officer deposed during cross-examination that, “When I reached at the place of occurrence first of all I inspected the dead body, I prepared injury statement and inquest report pertaining to the deceased. I sent the dead body to the mortuary from the place of occurrence at 10:00 a.m. It is correct that the case FIR number with offences and name of police station mentioned in the brief facts of the inquest report.” As per prosecution case F.I.R. (Ex.PB) was lodged at 10:15 a.m. Although Faryad Ali S.I. (PW-10)-investigating officer has categorically asserted that inquest report of the dead body of Muhammad Ashraf was prepared after receiving F.I.R. (Ex.PB) and other documents, Thereafter, dead body was shifted to the mortuary for post-mortem examination. Besides, from perusal of injury statement of Muhammad Ashraf-deceased (Ex.PF), it reveals that blank spaces have been left after writing “سرکار بذریعہ” and “……"بنام It reveals that accused person and complainant do not come into the picture at all till preparation of injury statement (Ex.PF). This fact also creates doubt in the prosecution case as well as on the credibility and truthfulness of the statements of Muhammad Akram (PW-7)-the complainant and Faryad Ali S.I. (PW-10)-investigating officer.
9. These circumstances to my mind go to suggest that the FIR was ante timed. It also gets support from the testimony of Dr. Uzair Rauf (PW 6), who conducted the post-mortem examination of the dead body of the deceased-Muhammad Ashraf and deposed during his examination-in-chief that, “I also endorsed injury statement Ex.PF and inquest report: Ex.PG.” During cross-examination Dr. Uzair Rauf (PW-6) deposed that, “My endorsement on the injury statement and inquest report is on blank spaces.” It is also noticed by this court that the inquest report (Exh.PG) which was prepared by Faryad Ali S.I. (PW-10)-investigating officer reveals that in the last column at last page the place where and when inquest report was prepared was left blank. More significantly, the inquest report (Exh.PG) is not signed by any of the eye witnesses or the complainant. The names of the witnesses mentioned in column No. 3 are of Tariq Mehmood (PW-9) resident of 466 GB, Muhammad Akram son of Muhammad Hayat resident of 543/GB and in the last column at last page names of Muhammad Ufran and Muhammad Zulfiqar both resident of 588/GB. Muhammad Akram (PW-7)-the complainant had mentioned in the written complaint (Ex.PH) that:
"نعش کی حفاظت کیلئے برادرم محمد ارشد کو چھوڑ آیاہوں۔"
Whereas, Muhammad Akram (PW-7)-the complainant had no deposed in this regard during his court testimony. If Faryad Ali S.I. (PW-10) investigating officer had actually met with Muhammad Akram (PW-7) the complainant, received written complaint (Exh.PH) at 09:45 a.m., visited and prepared injury statement (Exh.PF) after registration of F.I.R. (Ex.PB) there was no reason to left blank spaces mentioned above. This out rightly suggests that the complainant (PW-7) and prosecution witnesses were not present at the time when inquest report in this case was prepared. The absence of those details is indicative of the fact that the prosecution story was still in embryo and had hot been given any shape and that the FIR was recorded later on after due deliberations and consultations and was then ante timed to give it the color of a promptly lodged FIR. The second external check equally important is the sending of the copy of the FIR along with the dead body for post-mortem examination and its reference in the inquest report (Exh.PG). The absence of these details in the inquest report may be indicative that the FIR was not registered and the FIR was recorded later on after due deliberations and consultation. In the inquest report (Exh.PG) it was mentioned as under:-
“ میں معہ ہمر ائیاں روانہ ہو کر موقع پر پہنچا ہوں نعش ازاں محمد اشرف مقتول بمراد پوسٹمارٹم زیر حفاظت غلام عباس C/ 5980 برائے پوسٹ مارٹم سول ہسپتال سمندری بھجوائی جا رہی ہے بعد از پوسٹ مارٹم رائے سے مشکور فرمائیں نعش شناخت کنندگان گواہان کو ہمراہ نعش روانہ کیا گیا ہے۔"
On perusal of recovery memo of blood stained earth (Exh.PM), recovery memo of crime empties (Exh.PN), recovery memo of last worn clothes etc. (ExhPC) and un-scaled site plan (Exh.PO) it reveals that blank spaces have been left after writing “……"بنام . This fact also creates doubt in the prosecution case as well as on the credibility and truthfulness of the statements of Muhammad Akram (PW-7)-the complainant, Muhammad Arshad (PW-8) and Faryad Ali S.I. (PW-10)-investigating officer. Therefore, I do not think it safe to rely on the evidence of these witnesses i.e. Akram (PW-7)-the complainant, Muhammad Arshad (PW-8) and Faryad Ali S.I. (PW-10)-investigating officer. This also creates doubt about the genuineness of the version given by Muhammad Akram (PW-7)-the complainant and Muhammad Arshad (PW-8). These aspects of the matter are sufficient to cast doubt about the authenticity of the written complaint (Exh.PH) and FIR (Exh.PB). This creates serious doubt about the genuineness of the prosecution story including presence of the complainant at the scene of occurrence.
10. Another circumstance which shattered the presence of alleged eye witnesses at the crime spot at relevant time was that according to the Medical Officer (PW-6) as well as inquest report (Exh.PG), the mouth of the deceased was open, meaning thereby, that deceased remained un-attended after the occurrence. Muhammad Arshad (PW-8) deposed during cross-examination that, “We did not take the deceased in our lapses” The corps remained laying on the spot for one hour in front of the house of Muhammad Ali son of Yar Muhammad. The conduct of the witnesses was unnatural, which did not appeal to a prudent mind. The presence of eye-witnesses is doubtful. Reliance is placed on the case of “Muhammad Rafique alias Feeqa. Vs. The State” (2019 SCMR 1068).
11. In the instant appeal, in the scaled site plans (Exh.PA and Exh.PA/1) the complainant and witnesses were shown at point “7” and the deceased i.e. Muhammad Ashraf was shown at points “1” and “3”. Point “7” was shown in front of Al-Madia School and points “1” and “3” were shown in front of the house of Muhammad Ali son of Yar Muhammad Watto. The distance between Point “7” and Point “1” was fifty-five (55) feet and between Point “7” and Point “3” seventy-five (75) feet. The deceased was lying at point “3”. The complainant and prosecution witnesses were present at “Northern” side. Muhammad Arshad (PW-8) deposed during cross-examination that, “My brother Ashraf was ahead of us.” Muhammad Akram (PW-7)-the complainant deposed during cross-examination that, “The inter-se distance between the place of occurrence and my field is one square on the side of Madina school. I got drafted the site plan of the place of occurrence. I never objected the authenticity of site plan of the place of occurrence.” If agriculture land of Muhammad Akram (PW-7)-the complainant was on the side of Madina School, then position of presence of complainant, witnesses and deceased shown in the scaled site plans (Exh.PA and Exh.PA/1) negates the prosecution version. As per prosecution case the deceased was ahead of prosecution witnesses when incident took place while the complainant along with others was going to his fields. From the position shown in the site plan, it reveals that they were coming back from the fields, as the deceased was laying at the southern side and the complainant (PW-7) and Muhammad Arshad (PW-8) were at Northern side. Even both prosecution witnesses deposed during their examination-in-chief that when they reached near house of Muhammad Ali Watto suddenly a motorcycle came there and incident took place. The complainant (PW-7) and Muhammad Arshad (PW-8) have not received single scratch on their bodies. Faryad Ali S.I. (PW-10)-investigating officer also deposed during cross-examination that, “The abadi of village is situated on the southern side of the village while agricultural land of complainant party is situated to the northern side of the place of occurrence.” Although the site plan is not a substantive piece of evidence in terms of Article 22 of the Qanun-e-Shahadat Order, 1984 as held in the case of “Mst. Shamim Akhtar v. Fiaz Akhtar and two others” (PLD 1992 SC 211) but it reflects the view of the crime scene and same can be used to contradict or disbelieve eye witnesses. Thus, there was apparent conflict between the site plans and ocular testimony incapable of being reconciled by any amount of argument and persuasion. In these circumstances presences of the eye witnesses at the place of occurrence has become highly doubtful.
12. That also brings me to the evidence of Muhammad Akram (PW-7)-the complainant, it reveals that after the incident the complainant (PW-7) reported the incident to police at the spot, whereas Faryad Ali S.I. (PW-10)-investigating officer deposed that Muhammad Akram (PW-7)-the “complainant reported the incident at “Adda Tin Pullian”. The complainant (PW-7) as per written complaint (Exh.PH) soon after the’incident went to Police for reporting the incident but before reporting the incident he got prepared application for registration of criminal case from “one student”, whose name was not known to him. Muhammad Akram (PW-7)-the complainant deposed during cross-examination that, “I got drafted Ex.PH from one student who comes to our village. I do not know name of said student. The said student was neither joined the investigation nor he is a witness.” Non-mentioning of this fact in the application/complaint (Ex.PH) indicates that the complainant (PW-7) had not stated complete truth and that the F.I.R. came into existence later on, after due deliberations and consultations. When and where complaint (Ex.PH) was prepared and author of the complaint should have to state that the complaint was prepared by him under the instructions of the complainant. It is also not a case of the prosecution that the complainant (PW-7) asked “one student” (unknown) to prepare a complaint and accordingly complaint was prepared by “one student” (unknown), which was shown to the complainant, read over to him and same was signed by the complaint. The Hon’ble Supreme Court of Pakistan in the case of “Allah Bachaya and another v. The State” (PLD 2008 SC 349) held that:-
“In the instant case, the FIR was not recorded at the police stations. It has been held time and again that FIRs which are not recorded at the police stations suffer from the inherent doubt that those were recorded at the spot after due deliberations.”
Even the complainant had not given any explanation regarding delay in lodging the report and about preparation of complaint, in the complaint as well as in his statement before the learned trial court, therefore, in these circumstances chance of consultations and deliberations, on the part of the complainant, cannot be ruled out. It creates doubt in the prosecution case. Besides, testimony of prosecution witnesses regarding motive and recovery of weapon is rightly not believed by the trial court.
13. It has also been observed that co-accused Muhammad Abid alias Aabi was acquitted by the learned trial court through the impugned Judgment dated 31.07.2019 by disbelieving aforesaid prosecution witnesses. The witnesses, who had been found false to the extent of some accused, cannot be believed against the appellant in the absence of any other independent corroboration which is conspicuously missing in the present: case discussed above. Moreover, it has been informed by the learned law officer that neither the complainant nor the State challenged his acquittal, which shows that the complainant and the State were satisfied by the acquittal of co-accused. It is settled principle of law that if ocular testimony of a witness is to be disbelieved against a particular set of accused and is to be believed against another set of accused facing the same trial then the court must search for independent corroboration on material particulars as has been held in the number of cases decided by the Superior Courts. Reliance in this regard has been placed on the case reported as “Sarfraz alias Sappi and two others vs. The State” (2016 SCMR 1763).
14. All the above narrated facts and circumstances lead this Court, to only one conclusion that the whole prosecution case seems to be hinging upon conjectures and surmises and it had badly failed to lead incriminating, corroborative/independent evidence to bring home guilt of the accused in the case of capital charge. The learned trial court was’ not justified in convicting the appellant while basing upon such un-trustworthy, un-corroborated evidence and conviction passed by the learned trial court in the circumstances is against all cannons of law recognized for the dispensation of criminal justice. As per dictates of law, benefit of every doubt is to be extended in favour of the accused. In the case of “Muhammad Akram v. The State” (2009 SCMR 230), it has been held as under:
“The nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right.”
It is golden principle of law that the Court should let off 100 guilty but should not convict one innocent persons. In the case of “Ayub Masih v. The State” (PLD 2002 SC 1048), it has been held by the Hon’ble Supreme Court of Pakistan that:-
“…….It is hardly necessary to reiterate that the prosecution is obliged to prove its case against the accused beyond any reasonable doubt and if it fails to do so the accused is entitled to the benefit of doubt as of right. It is also firmly settled that if there is an element of doubt as to the guilt of the accused the benefit of that doubt must be extended to him. The doubt of course must be reasonable and not imaginary or artificial. The rule of benefit of doubt, which is described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim, “it is better that ten guilty persons be acquitted rather than one innocent person be convicted”. In simple words it means that utmost care should be taken by the Court in convicting an accused. It was held in “The State v. Mushtaq Ahmed” (PLD 1973 SC 418) that this rule is antithesis of haphazard approach or reaching a fitful decision in a case. It will not be out of place to mention here that this rule occupies a pivotal place in the Islamic law and is enforced rigorously in view of the saying of the Holy Prophet (P.B.U.H) that the “mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent”.
15. In view of what has been noticed and discussed above, Criminal Appeal No. 60094-J of 2019 is accepted. The conviction and sentence awarded by the learned Additional Sessions Judge, Samundri vide judgment dated 31.07.2019 is set aside and the appellant, Haq Nawaz is acquitted of the charges in case F.I.R. No. 431 of 2014, dated 23.12.2014, offence under Sections 302/34, P.P.C., registered at Police Station Saddar Samundri. District Faisalabad. The appellant-Haq Nawaz is in jail. He (the appellant- Haq Nawaz), is directed to be released forthwith, if not required in any other case.
16. So far as Criminal Revision No. 60096 of 2019 filed by the complainant for enhancement of sentence of the appellant/Respondent No. 1 awarded by the learned trial court is concerned, for the reasons afore-stated, the same is devoid of any legal force, which is accordingly dismissed.
(A.A.K.) Appeal accepted
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