PLJ 2023 Cr.C. (Note) 249
[Lahore High Court, Lahore]
Present: Shehram Sarwar Ch., J.
versus
STATE and another--Respondents
Crl. A. No. 94161 & Crl. Rev. No. 95070 of 2017, heard on 27.4.2022.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Qatl-e-amd--Conviction and sentence--Challenge to--Benefit of doubt--Chance witness--The medical, evidence produced by prosecution was not of much avail to prosecution because murder in issue had remained unwitnessed and, thus, medical evidence could not point an accusing finger towards appellant implicated in this case--Evidence furnished by prosecution is shaky in nature and cannot be relied upon by maintaining conviction/sentence of appellant--Prosecution could not prove its case against appellant beyond any shadow of doubt--It is, by now well established principle of law that it is prosecution, which has to prove its case against accused by standing on its own legs and it cannot take any benefit from weaknesses of case of defence--In instant case, prosecution remained failed to discharge its responsibility of proving case against appellant--Held: It is also well established that if there is a single circumstance which creates doubt regarding prosecution case, same is sufficient to give benefit of doubt to accused, whereas, instant case is replete with number of circumstances which have created serious doubt about prosecution story. [Para 4 & 6] B, C, D & E
2016 SCMR 1605 & 2009 SCMR 230
Chance witness--
----Testimony of chance witnesses require cautious scrutiny and was 2 mot to be accepted unless they give satisfactory explanation of presence at A for near place of occurrence at relevant time.
[Para 4] A
PLD 2021 SC 600.
Mr. Irfan Riaz Gondal, Advocate for Appellant.
Mr. Muhammad Ahmad Saeed, Deputy Prosecutor General for State.
M/s. Shahid Zaheer Syed and Awais Zaheer Syed, Advocates for Complainant.
Date of hearing: 27.4.2022.
Judgment
Sajid Ali (appellant) along with his co-accused namely Ali Hasan was tried by learned Addl. Sessions Judge, Chiniot in case FIR No. 33 dated 29.01.2017, offence under Sections 302, 394, 412 and 34, PPC, registered at Police Station Saddar District Chiniota for committing murder of Ambreen, daughter of Ghulam Sarwar (PW.11). Vide judgment dated 28.09.2017 passed by learned trial Court, the appellant has been convicted under Section 302(b), PPC and sentenced to imprisonment for life with a further direction to pay Rs. 5,00,000/- as compensation under Section 544-A, Code of Criminal Procedure, to the legal heirs of deceased and in default whereof to further undergo six months S.I. However, he was acquitted of the charges under Sections 338-C, 394 and 412, PPC. Benefit of Section 382-B, Cr.P.C. was extended to the appellant. Through the same judgment, Ali Hasan, co-accused of the appellant was acquitted of the charges and Crl. Appeal No. 94862 of 2017 against his acquittal filed by Ghulam Sarwar was disposed of as withdrawn after arguments vide order dated 02.02.2021 passed by a Learned Division Bench of this Court. Assailing the above conviction and sentence, the appellant has filed the appeal in hand whereas Ghulam Sarwar also preferred a Crl. Revision No. 95070 of 2017 for enhancement of sentence of the appellant as well as compensation amount. Since both these matters have arisen out of the same judgment, therefore, the same are being decided together through this single judgment.
2. Prosecution story, as set out in the FIR (Ex.PA/1) registered on the written application (Ex.PA) of Abid Ali, complainant is that on 28.01.2017 at about 10/11:00 p.m. (night) he along with Munir Ahmad and Malik Irfan Tufail was proceeding towards Chiniot from Faisalabad on the motorcycle whereas Sajid Ali (appellant) and his wife Mst. Ambreen Bibi were ahead of them, who were also going to Chiniot on the car. When the car of the appellant reached at Mouza Chak Bandi near Ayesha Rice Mills, three unknown accused (features/descriptions of unknown accused are mentioned in the FIR) came and forcibly intercepted the car of the appellant. One of the unknown accused remained on the motorcycle whereas two unknown accused armed with pistols forcibly sat on the rear seat of the car and snatched gold ornaments, cash amount and mobile phones from Mst. Ambreen Bibi. On resistance of Mst. Ambreen Bibi, one of the accused made a fire from inside the car, which landed on the right eye of Mst. Ambreen Bibi. The other accused fired at the appellant, which hit on his right leg. The accused persons while making aerial firing fled away from the place of occurrence on the motorcycle. The appellant and Mst. Ambreen Bibi were attended to by the complainant party and were being taken to DHQ Hospital but Mst. Ambreen Bibi succumbed to the injury on the way. Subsequently, Ghulam Sarwar, father of Mst. Ambreen got recorded his statement under Section 161, Cr.P.C. on 29.01.2017, wherein the appellant was transposed as an accused in this case on the basis of information allegedly imparted to him by Hafiz Abdul Shakoor (PW.9) Allah Rakha (PW.10).
3. Arguments heard. Record perused.
4. Admittedly, the case in hand is of two versions. Initially, the FIR was lodged by Abid Ali, real brother of Sajid Ali, appellant mentioning therein that Sajid Ali was travelling with his wife Mst. Ambreen Bibi on Faisalabad Chiniot road and near Ayesha Rice Mills, their car was intercepted by three unknown robbers. Two robbers entered into the car and forcibly snatched gold ornaments, mobile phones and cash from Mst. Ambreen Bibi and on her resistance she was shot by one of the robber hitting on her right eye. Sajid Ali, appellant was also shot by the robbers. Mst. Ambreen Bibi died on the way to hospital. Subsequently, Ghulam Sarwar, father of Mst. Ambreen got recorded his statement under Section 161, Cr.P.C. on 29.01.2017, wherein Sajid Ali was transposed as an accused in this case on the basis of information allegedly imparted to him by Hafiz Abdul Shakoor (PW.9) Allah Rakha (PW.10). It was the claim of both these PWs that they saw the appellant while committing the murder of Mst. Ambreen Bibi. Both these PWs while appearing before the learned trial Court, in order to strengthen the prosecution case, made dishonest improvements, they were confronted with their previous statements and the improvements were brought on record. I have further noted that both these PWs have not given any plausible reason for their presence on the spot at the time of incident. Their houses were far away from the place of occurrence. They have no place of business or agricultural land near the place of occurrence. They were chance witnesses. In the case of “Naveed Asghar and 2 others vs. The State” (PLD 2021 SC 600), the apex Court held that testimony of chance witnesses require cautious scrutiny and was not to be accepted unless they give satisfactory explanation of presence at or near the place of occurrence at the relevant time. Moreover, both the witnesses of ocular account were not stranger to the deceased as Hafiz Abdul Shakoor (PW.9) was real maternal uncle of Ambreen Bibi while Allah Rakha (PW.10) was her maternal uncle (phopha) but they did not make an abortive attempt to save her life from the clutches of appellant. Moreover, the learned trial Court has rightly disbelieved the testimony of both these PWs. The evidence of extrajudicial confession furnished by Hunain (PW.12) has also rightly been disbelieved by the learned trial Court in Paragraph No. 13 of the impugned judgment through valid reasons. So far as alleged recovery of .30 bore pistol at the instance of appellant is concerned, the same is immaterial because the prosecution has failed to associate any independent witness of the locality and, thus, the mandatory provisions of Section 103, Cr.P.C. had flagrantly been violated in that regard. Reliance may be placed on case law titled as “Muhammad Ismail and others vs. The State” (2017 SCMR 898). The medical, evidence produced by the prosecution was not of much avail to the prosecution because the murder in issue had remained unwitnessed and, thus, the medical evidence could not point an accusing finger towards the appellant implicated in this case. Reliance is placed on case law titled as “Muhammad Saleem vs. Shabbir Ahmad and others” (2016 SCMR 1605). Therefore, I hold that the evidence furnished by the prosecution is shaky in nature and cannot be relied upon by maintaining the conviction/sentence of the appellant.
5. As far as the defence plea taken by the appellant in his statement under Section 342, Code of Criminal Procedure is concerned, since the prosecution evidence is doubtful in nature, therefore, there is no need to discuss the same which is exculpatory in nature.
6. I have considered all the pros and cons of this case and have come to this irresistible conclusion that the prosecution could not prove its case against the appellant beyond any shadow of doubt. It is, by now well established principle of law that it is the prosecution, which has to prove its case against the accused by standing on its own legs and it cannot take any benefit from the weaknesses of the case of the defence. In the instant case, the prosecution remained failed to discharge its responsibility of proving the case against the appellant. It is also well established that if there is a single circumstance which creates doubt regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused, whereas, the instant case is replete with number of circumstances which have created serious doubt about the prosecution story. In this regard, reliance may be placed on the case law reported as “Muhammad Akram versus The State” (2009 SCMR 230)..
7. For the foregoing reasons, this appeal is allowed, conviction and sentence awarded to the appellant vide judgment dated 28.09.2017 passed by the learned Addl. Sessions Judge, Chiniot are set aside and the appellant is acquitted of the charge levelled against him while extending him benefit of doubt. Sajid Ali (appellant) is in jail. He shall be released forthwith if not required to be detained in any other case.
8. In view of above discussion, Crl. Revision No. 95070 of 2017 filed by complainant for enhancement of sentence of appellant having no merits is dismissed.
(A.A.K.) Appeal allowed
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