PLJ 2023 Cr.C. (Note) 247
[Lahore High Court, Multan Bench]
Present: Muhammad Tariq Nadeem, J.
versus
STATE etc.--Respondents
Crl. Appeal No. 1620 of 2019, heard on 13.04.2022.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302/34--Qatl-i-Amd--Delay in FIR--Delay in conducting post mortem examination--Dishonest improvements in the statements of the PW's--Acquittal of co-accused--Motive not proved--Benefit of doubt--Acquittal of--Appellant and co-accused (since acquit) inflicted brick blows on different parts of the body of the deceased--Occurrence was reported by complainant/PW through written application with the delay of 07 hours and 05 minutes--Delay in setting the machinery of law into motion speaks volume against the veracity of prosecution version--Post mortem of the deceased was conducted with the delay of 10 hours and 30 minutes--Both the eye witnesses had not gone to police station to inform the occurrence--According to the FIR, appellant alongwith acquitted accused jointly inflicted the brick blows on different parts of the body of deceased, but while appearing as PW's, they improved their statements with respect the role of the appellant--PW's are the witness of the inquest report and post mortem examination--Trial court had disbelieved the prosecution evidence qua the co-accused--Recovery of brick was taken into possession from an open place--the brick was not blood stained--No material evidence in the shape of ocular or documentary evidence was produced to prove motive part-- Benefit of doubt always goes to the accused--Appeal is accepted and the appellant is acquitted. [Para 2, 7, 8, 9, 10, 11, 12, 13, 14 & 15] A,
B, D, F, G, H, I, J, K, L, M, N, O, P, Q, R
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302/34--Qatl-i-Amd--Delay in FIR--Delay in setting the machinery of law into motion speaks volume against the veracity of prosecution version. [Para 7] C
Ref. 2019 SCMR 274.
Pakistan Penal Code, 1860 (XLV of 1860)--
---- Ss. 302/34--Qatl-i-Amd--Delay in Post mortem examination--An adverse inference to the prosecution's case can be drawn that the intervening period had been consumed in fabricating a story creating serious doubt regarding the prosecution case. [Para 8] E
Ref. 2022 SCMR 393; 2021 SCMR 16.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302/34--Qatl-i-Amd--Improvements--Said improvements was made dishonestly to strength the prosecution case. [Para 9] H
Ref. 2021 SCMR 810; 2019 SCMR 631; 2018 SCMR 772;
PLD 2013 SC 793.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302/34--Qatl-i-Amd--Inquest report--PW's are not the witness of the inquest report--If witnesses had been present at the time of the occurrence, they should have escorted the dead body to the hospital being the close relatives and their names should have been incorporated in the inquest report and post mortem report in the column of the identification of the dead body. [Para 10] I
Ref. 2021 SCMR 780; 2018 SCMR 153; 2017 SCMR 1155.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302/34--Qatl-i-Amd--Acquittal of co-accused—Once prosecution witnesses are disbelieved with respect to a co-accused then, they can not be relied upon with regard to the other co-accused unless they are supported by corroboratory evidence coming from independent source and shall be unimpeachable.
[Para 11] K
Ref. 2020 SCMR 219; 2019 SCMR 79; 2018 SCMR 2118;
2016 SCMR 1763.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302/34--Qatl-i-Amd-- Medical Evidence—Medical evidence is supporting type of evidence, which may confirm the prosecution version with regard to receipt of injury, nature of injury, kind of weapon used in the occurrence but it would not identify the assailant. [Para 12] L
Ref. PLD 2021 SC 600; 2018 SCMR 772; 2009 SCMR 916.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302/34--Qatl-i-Amd--Recovery--Recovery of brick was taken into possession from an open place--the brick was not blood stained and was not sent to the office of PFSA. [Para 13] M & N
Ref. 2017 SCMR 564.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302/34--Qatl-i-Amd--Evidence--Unless direct or substantive evidence is brought on record, conviction cannot be recorded on the basis of such type of evidence howsoever convincing it may be.
[Para 13] O
Ref. 2018 SCMR 772; 2017 SCME 142.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302/34--Qatl-i-Amd--Criminal jurisprudence--Motive--It is well settled principle of criminal jurisprudence that if prosecution sets up a motive but fails to prove it, then, it is the prosecution' who has to suffer and not the accused. [Para 14] Q
Ref. 2021 SCMR 810; 2021 SCMR 780; 2020 SCMR 305.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302/34--Qatl-i-Amd--Benefit of doubt--It is axiomatic principle of law that in case of single doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace.
[Para 15] R
Ref. 2021 SCMR 873; 2021 SCMR 736; 2020 SCMR 857; 2018 SCMR 772; 2014 SCMR 749; 2009 SCMR 230; 2008 SCMR 1221;
1995 S CMR 1345.
M/s. Khawaja Qaiser Butt and Malik Amir, Advocates for Apepllants.
Syed Nadeem Haider Rizvi, DDPP for State.
Mr. Abdul Rehman Tariq Khand, Advocate for Complainant.
Date of hearing: 13.04.2022
Judgment
Usman alias Pappu, appellant along with his co-accused Riaz Hussain and Munawar Abbas (since acquitted) were tried, for committing the murder of Noor Muhammad, by the learned Additional Sessions Judge, Chichawatni, District Sahiwal in case FIR No.81 dated 28.05.2019 registered under Sections 302, 34 PPC, at Police Station Ghaziabad, Chichawatni, and after conclusion of trial, vide judgment dated 27-11-2019, while acquitting co-accused Riaz Hussain and Munawar Abbas, convicted and sentenced the appellant as under:-
U/S. 302(B) PPC.
Life imprisonment with the direction to pay a sum of Rs.1,00,000/- as compensation under Section 544-A Cr.P.C. to the legal heirs Noor Muhammad (deceased) recoverable as arrears of land revenue; in default thereof to further undergo six months SI each. Benefit of Section 382-B Cr.P.C. was also extended to the convicts.
Feeling aggrieved from the judgment of the learned trial court, the appellant has assailed his conviction and sentence through the instant appeal.
2. The brief facts of the case as narrated by Mst. Bakhaan Bibi (PW.6) in the FIR (Ex.PE) are that on 28.05.2019 at about 07/08:00 a.m., complainant's husband, Noor Muhammad (deceased) went to his land for cultivation of "Jawar" crop, and when he made "Watt", the accused Riaz and Usman came there and dismantled the "Watt" and an altercation took place and they tortured her husband. Abdul Razzaq, Amir Iqbal rescued the complainant's husband from the clutches of the accused. The complainant's husband returned home and told her the whole occurrence and also complained of pain in his shoulder, upon which she asked him to get check up by Mansha Haraj and then her husband went to the house of said Mansha Haraj for medical checkup. After the check-up, her husband was returning home when accused Usman armed with brick, Munawar, armed with brick, and Riaz emerged from backside of a wall in the street near her house around 11:00 a.m. Accused Riaz raised lalkara to teach a lesson to the husband of the complainant about an altercation, upon which, accused Usman and Munawar inflicted brick blows on different parts of the body of Noor Muhammad (deceased), who fell on the ground. On her hue and cry, PWs Ijaz, Ismail and others attracted the spot, and on seeing them, the accused fled away. She, along with other PWs, witnessed the occurrence. Noor Muhammad was being transferred in injured condition in a rickshaw to the hospital, but he succumbed to the injuries on the way to the hospital. Hence, the above-mentioned FIR.
3. After completion of investigation, report under Section 173 Cr.P.C. was submitted against the appellant along with his acquitted co-accused Riaz Hussain and Munawar Abbas. The charge against the appellant along with his co-accused was framed on 24.09.2019 to which they pleaded not guilty and claimed trial. In order to bring home the guilt of the accused, the prosecution got examined as many as 08-witnesses. Mst. Bakhaan Bibi (PW.6) and Ijaz Hussian (PW.7) have furnished the ocular account. Muhammad Seed Akhtar, draftsman (PW.1) prepared scaled site-plan of the place of occurrence (Ex.PA and Ex.PA/1). Muhammad Amin, S.I. (PW.8) being investigating officer stated about various steps taken by him during investigation of the case. The medical evidence was furnished by Doctor Ali Hussain Syed, MO, who conducted autopsy on the dead body of deceased Noor Muhammad and issued, his PMR (Ex.PB)
The remaining prosecution witnesses, are formal in nature. The prosecution gave up Muhammad Ismail, Muhammad Razzaq, Amir Iqbal, Muhammad Nawaz and Shahzad JFSA/PFSA PWs being unnecessary closed its evidence.
4. After completion of prosecution evidence, statements of the appellant along with his acquitted co-accused under Section 342 Cr. P.C were recorded wherein they denied the allegations levelled against them and claimed their innocence. They neither opted to appear as their own witnesses within the scope of Section 340(2) Cr.P.C. nor produced any defence evidence.
5. The learned trial court vide judgment dated 27-11-2019 found the appellant guilty, convicted and sentenced him as mentioned above, however, acquitted his co-accused namely Riaz Hussain and Muanwar Abbas of the charges through the same judgment by giving them the benefit of doubt, hence, this criminal appeal.
6. I have anxiously considered the arguments put forth by the learned counsel for the appellant as well as learned Deputy District Public Prosecutor for the State assisted by learned counsel for the complainant and scanned the record minutely.
7. It has been observed by this Court that the occurrence in this case, as per prosecution, took place on 28-05-2019 at 11;00 a.m., within the area of Chak No. 158/9-L, about 23 Kilometer from Police Station Ghaziabad and the same was reported by Mst. Bakhaan Bibi (PW.6) through written application (Ex.PG) to police on the same day at about 06:05 p.m. with the delay of 07 hours and 05 minutes. No plausible explanation for the delay has been brought on record Even while appearing before the learned trial Court the prosecution witnesses did not utter even a single word about the above said delay. Therefore, I hold that this delay in setting the machinery of law into motion speaks volume against the veracity of prosecution version. Reliance is placed on case law titled as "Altaf Hussain vs. The State" (2019 SCMR 274).
8. I have also noted that according to the prosecution story Noor Muhammad (deceased) expired on 28.05.2019 at 11:00 a.m. whereas the post-mortem on the dead body of deceased was conducted on 28.05.2019 at 09:30 p.m. with the delay of 10 hours and 30 minutes Keeping in view this material discrepancy arising out from the prosecution case, an adverse inference to the prosecution's case can be drawn that the intervening period had been consumed in fabricating a story creating serious doubt regarding the prosecution case. Reliance in this regard is placed upon the cases titled as "Muhammad Adnan and another Vs. The State and others" (2021 SCMR 16) wherein the Hon'ble Supreme Court of Pakistan has held as under:
“......the matter was reported to police on the same night at 09:45 p.m. whereas the FIR was registered at 10:30 p.m., Surprisingly, post-mortem examination on the dead body of Muhammad Tayyab was conducted on 19-09-20018 at 6:30 a.m. Dr. Muhammad Sharif (PW-6) who conducted autopsy stated in his cross-examination that at THQ, Hospital, Depalpur, the arrangements for conducting post-mortem examination are available at night; that he was on duty in the hospital on that night; that his duty started from 8:00 p.m. on 18-09-2008 till 08.00 a.m., on 19-09-2008; that he received the police papers at 6.30 a.m. on 19.09.2008. There is no explanation on record why the autopsy on the dead body of Muhammad Tayyab was conducted with delay of more than nine hours."
Wisdom is also derived from the judgment reported as "Pervaiz Khan and another Vs. The State (2022 SCMR 393) wherein the Hon'ble Supreme Court of Pakistan has held as under:
".... There is another circumstance that although the dead body was available in the hospital and according to prosecution police also arrived at 11:15 p.m, and the documents of the dead bodies were prepared but post-mortem were conducted on the following day i.e. 02.05.2008 at 5 and 6 a.m. So this delayed post-mortem also indicates that till time the documents were not prepared and during this time the matter remained under consultation creating serious doubt regarding the prosecution case.....”
9. In an attempt to make it a case of direct evidence against the appellant on the charge of murder of Noor Muhammad, the prosecution has heavily relied upon the statements of Mst. Bakhaan Bibi, complainant (PW.6) and ljaz Hussain (PW.7), inasmuch as Mst. Bakhaan Bibi, complainant (PW-6) and Ijaz Hussain (PW.7) are widow and brother-in-law of Noor Muhammad (deceased) respectively. The presence of the above-mentioned eye-witnesses at the spot at the relevant time was not natural. It was, therefore, mandatory for the above mentioned eye-witnesses to justify their presence at the place of occurrence at the relevant time through some cogent reason but the supra mentioned. PWs have failed to give any plausible reasoning qua their presence at place of occurrence at the relevant time. I have noted that both the eye witnesses had not gone to police station to inform the occurrence. More so, the application (Ex.PG) submitted by Mst. Bakhaan Bibi (PW.6) for registration of FIR at THQ, Hospital Chichawatni on 28-05-2019 but time of submission of supra mentioned application in the proceedings of the police had been left blank. If supra mentioned PWs were present at the time and place of occurrence, they must have approached to the police station for immediately reporting the awful occurrence to the police.
I have noticed that according to the narration of FIR (Ex. PE) Usman alias Pappu, appellant along with Munawar Abbas jointly inflicted brick blows on the different parts of the body of Noor Muhammad (deceased) and as a result of which he succumbed to the injuries but while appearing before the learned trial Court the supra mentioned PWs have made dishonest improvement with respect to role of appellant. According to the statement of Mst. Bakhaan Bibi, complainant (PW.6) recorded before the trial Court, Usman alias Pappu, appellant inflicted brick blow on the back of her husband's head, who fell on the ground in injured condition. She (PW.6) has not ascribed any role to Munawar Abbas co-accused (since acquitted). Relevant portion of her statement reads as under:--
"....I got recorded in Ex.PG that during first occurrence. Riaz and Usman accused inflicted sotas blows upon Noor Muhammad deceased. I got recorded in Ex.PG that accused Usman inflicted brick blow which hit on back of head of my husband, confronted with Ex.PG wherein it is not so recorded. I did not get recorded in Ex.PG that both the accused inflicted brick blows to my husband, confronted with Ex.PG where it is so recorded ...."
Similarly, Ijaz Hussain (PW.7) during his cross-examination also described as under:--
“I got recorded in my statement Ex.DA that the occurrence took place at 11:00 a.m. confronted with Ex.DA, where it is no so recorded. I did not get recorded in Ex.DA that I reached at the spot from my house after hearing hue and cry of my sister. I got recorded in my statement Ex.DA that in our view, accused Riaz Hussain raised lalkara that Noor Muhammad be taught a lesson for altercation and accused Usman inflicted brick blows on Noor Muhammad deceased which hit on the back of his head and he fell injured on ground, confronted with Ex. DA. A, wherein the words in view of as well as infliction of brick, blow by, Usman on back side of head of Noor Muhammad is not mentioned. I got recorded in my statement that the deceased shifted through, "raksha", confronted with Ex.DA, where "raksha" is not so recorded. I did not get, recorded in my statement Ex.DA that Usman and Munawar jointly inflicted, injuries with bricks, confronted with Ex.DA where it is so recorded………"
The said op-cit Improvements and contradictions in the statements of the supra mentioned eye-witnesses make their statements highly doubtful. The Hon'ble Supreme Court of Pakistan has observed in a plethora of judgments that a witness improves his statement and at the moment it is observed that the said improvement was made dishonestly to strengthen the prosecution, such portion of his statement is to be discarded out of consideration. All the circumstances highlighted above, lead me to irresistible conclusion that presence of eye-witnesses at the place of occurrence at the relevant time is not free from doubts and the prosecution has failed to prove its case against the appellant beyond reasonable doubt. Reference in this respect may be made to the judgments reported as "Hassan and others Vs. The State and others" (PLD 2013 SC 793), "Muhammad Mansha Vs. The State" (2018 SCMR 772), "Muhammad Arif Vs. The State" (2019 SCMR. 631), and "Khalid Mehmood and another vs. The State and others” (2021 SCMR 810).
10. Another intriguing aspect of the case, which cannot be lost sight off is that the witnesses of ocular account. Mst. Bakhaan Bibi (PW.6) and Ijaz Hussain (PW.7) are not witnesses of inquest report (Ex.PD) and post-mortem (Ex.PB) pertaining to Noor Muhammad (deceased), had they been present at the, time of the occurrence, they must have been the witnesses of inquest report. Similarly they should have escorted the dead body to the hospital being the close relatives and their names should have been incorporated in the post-mortern report in the column of identification of the dead body. This fact has constrained me to hold that supra mentioned PWs were not present at the time and place of occurrence. Reliance is placed upon the following case laws titled as "Abdul Jabbar alias Jabri Vs. The State" (2017 SCMR 1155), "Nadeem alias Kala Vs. The State and others" (2018 SCMR 153) and "Liaqat Ali and another Vs. The State and others" (2021 SCMR 780).
11. There is yet another intriguing aspect of the case that the learned trial Court has disbelieved the prosecution evidence qua the co-accused Munawar Abbas to whom identical role had been ascribed. Learned Deputy District Public Prosecutor has apprised the Court that no appeal against acquittal of Munawar Abbas, accused has been filed. It is a trite principle of law and justice that once prosecution witnesses are disbelieved with respect to a co-accused then, they cannot be relied upon with regard to the other co-accused unless they are supported by corroboratory evidence coming from independent source and shall be unimpeachable in nature but that is not available in the present case. Reliance is placed upon the cases titled as Shahbaz Vs. The State" (2016 SCMR 1763), "Nazir Ahmad versus The State" (2018 SCMR 787) "Haroon Shafique versus The State and others" (2018 SCMR 2118), "Munir Ahmad and another Vs. The State and others" (2019 SCMR 79) and "Safdar Abbas and others Vs. the State and others" (2020 SCMR 219).
12. Insofar as the medical evidence of the prosecution is concerned, it is by now well settled that medical evidence is a type of supporting evidence, which may confirm the prosecution version with regard to receipt of injury, nature of the injury, kind of weapon used in the occurrence but it would not identify the assailant. Reference in this context may be made to the cases of "Muhammad Mansha Vs. The State" (2018 SCMR 772), "Ghulam Mustafa Vs. The State" (2009 SCMR 916) and "Naveed Asghar and 2 others Vs. The State" (PLD 2021 SC 600).
13. As far as recovery of brick (P. 3) at the instance of the appellant Usman alias Pappu, vide recovery memo (Ex.PH) is concerned, I have noted that the same was taken into possession from an open place i.e. metal road leading towards Chak No. 158/9.L, Ghazi Abad near residential house of Noor Muhammad (deceased). I have also noted the recovery witness of said brick was Ijaz Hussain (PW.7), who during his cross-examination stated that on the first visit of police, they showed the Investigating Officer the piece of brick. Likewise, Mst. Bakhaan Bibi, complainant (PW.6) during his evidence described that the PWs gave the brick to the police from the spot, then question arises, when the Investigating Officer was already shown weapon of offence i.e. brick by the PWs then what was the reason for not taking the same into custody on the same day. The brick was not blood stained and the same was not sent to Punjab Forensic Science Agency Lahore. This fact alone is sufficient to disbelieve the supra mentioned recovery, thus, the learned trial Court has rightly disbelieved the recovery of brick against the appellant. Even as stated above, the said recovery is shown from an open place, which is easily accessible to all, which is not reliable. Reliance is placed upon the case titled as "Arshad Khan Vs. The State" (2017 SCMR 564).
It is well settled that unless direct or substantive evidence is brought on record, conviction cannot be recorded on the basis of such type of evidence howsoever convincing it may be. Reliance is placed upon the cases titled as "Muhammad Irshad Vs. Allah Ditta and others" (2017 SCMR 142) and "Muhammad Mansha Vs. The State" (2018 SCMR 772).
14. Now the only piece of evidence still remains in field is the motive advanced by the prosecution behind the unfortunate incident, which, as per prosecution story was an altercation took place between Noor Muhammad (deceased) and accused party in the fields on the dispute of "Watt", which was dismantled by the accused but it was an oral assertion of the complainant and no Material evidence in the shape of ocular or documentary evidence was produced to substantiate the motive alleged by the prosecution. Although, the prosecution is not under obligation to establish a motive in every murder Case but it is also well settled principle of criminal jurisprudence that if prosecution sets up a motive but fails to prove it, then, it is the prosecution who has to suffer and not the accused. Reliance is placed upon the cases titled as "Muhammad Ilyas and another Vs. Ameer Ali and another" (2020 SCMR 305), "Liaqat Ali and another Vs. The State and others" (2021 SCMR 780) and "Khalid Mehmood and other Vs. The State and others" (2021 SCMR 810).
15. The responsibility to prove its case beyond any shadow of reasonable doubt squarely lies with the prosecution and if it fails to successfully discharge it, the only result can be the extension of benefit of doubt to the accused person and it is, by now, established proposition that multiple doubts are not required in this regard, even a single circumstance creating doubt in a prudent mind is sufficient. 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. The Hon'ble Supreme Court of Pakistan in the case of "Muhammad Mansha Vs. The State" (2018 SCMR 772) at Para No.4, observed regarding the chance witnesses as under:--
"4... Needles to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better than ten guilty persons be acquitted rather than one innocent person be convicted. Reliance in this behalf can be made upon the cases of Tariq Pervez V. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muhammad Akram v. The State (2009 SCMR 230)" and Muhammad Zaman v. The State (2014 SCMR 749)…...."
Guidance can also be sought from the cases of “Muhammad Imran Vs. The State" (2020 SCMR 857) Relevant part of the said judgment at Para No.5 reads as under:--
"......It is by now well settled that benefit of a single circumstance, deducible from the record, intriguing upon the integrity of prosecution case, is to be extended to the accused without reservation; the case is fraught with many. It would be unsafe to maintain the conviction……”
Similar view was taken in the cases of “Najaf Ali Shah vs. The State” (2021 SCMR 736) & "The State through P.G; Sindh and others vs. Ahmed Omar Sheikh and others" (2021 SCMR 873).
16. For what has been discussed above, the prosecution has failed to prove its case against the appellant beyond any shadow of doubt. So by extending the benefit of doubt to Usman alias Pappu appellant, I accept his criminal appeal and acquit him of the charge. He is in jail. He be released forthwith if not required in any other case.
(M.A.B.) Appeal accepted
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