PLJ 2024 Cr.C. 306
[Lahore High Court, Lahore]
Present: Malik Shahzad Ahmad Khan, J.
NIAZ HUSSAIN--Appellant
versus
STATE--Respondent
Crl. A. No. 44536-J of 2019, decided on 11.9.2023.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conviction and sentence--Challenge to--Qatl-e-amd--Ocular account--Chance witnesses--Eviderice cannot be accepted without proof of a valid reason of their presence at spot at relevant time--Prosecution eye-witnesses are chance witnesses and they could not prove any valid reason of their presence at spot at time of occurrence, therefore, their presence at place of occurrence at relevant time becomes doubtful--Eye-witnesses tried to save deceased from hands of appellant at time of occurrence nor they tried to apprehend appellant after occurrence though they were present only at a distance of about twenty feet from deceased-- Conduct of prosecution eye-witnesses, who according to their claim had witnessed occurrence, is highly unnatural therefore, their presence at spot is highly doubtful, hence their evidence is not worthy of reliance--Prosecution eye-witnesses that they identified appellant in light of their motorcycle but no motorcycle of complainant or any prosecution witness was produced before Investigating Officer or taken into possession--No registration number, make or model number of motorcycle has been mentioned in contents of FIR--Recovery of blood-stained ‘churri’ on pointation of appellant--The Hon’ble Supreme Court of Pakistan disbelieved evidence of blood-stained dagger which was allegedly recovered from accused from his house after ten days from occurrence--Complainant has himself stated in his examination-in-chief that accused was his Saala (wife’s brother) whereas deceased was his son--Interse relationship of deceased and wife of appellant, who was maternal aunt (ممانی) of deceased alleged motive does not appeal to a prudent mind--No evidence has been produced by prosecution to prove alleged motive--Even trial Court has disbelieved alleged motive of prosecution--Appeal allowed.
[P. 310, 311, 312 & 313] A, B, C, D, E & F
2015 SCMR 1142, 2020 SCMR 192, 2008 SCMR 95, 2011 SCMR 1473, PLJ 2017 SC 249, 2017 SCMR 709, 2017 SCMR 1999 &
1995 SCMR 1735.
Mr. Zafar Iqbal Mangan, Advocate/Defence Counsel for Appellant.
Mr. Nisar Ahmad Virk, Deputy Prosecutor General for State.
Mr. Muhammad Saadullah, Advocate for Complainant.
Date of hearing: 11.9.2023.
Judgment
This judgment shall dispose of Crl. Appeal No. 44536-J of 2019, filed by Niaz Hussain (appellant), against his conviction and sentence.
2. Niaz Hussain (appellant) was tried in case F.I.R. No. 543 dated 14.11.2018, registered at police station Sadar, District Bhakkar, in respect of offence under Section 302, PPC and vide impugned judgment dated 10.04.2019, passed by learned Additional Sessions Judge, Bhakkar, he (appellant) has been convicted and sentenced as under:
Under Section 302(b), PPC to imprisonment for life as Tazir with fine of Rs. 2,00,000/- to the legal heirs of the deceased as compensation under Section 544-A of Cr.P.C. and in default thereof to further undergo six months simple imprisonment.
Benefit of Section 382-B, Cr.P.C. was also extended to the appellant
3. Brief facts of the case as given by Ghulam Muhammad, complainant (PW-1) in his complaint (Ex.PA), on the basis of which the formal FIR (Ex.PA/2) was chalked out, are that he (complainant) was resident of Peera Ashaab and a labourer by profession. On 14.11.2018 after Magrib prayer his sole son, namely Faisal Bilal (deceased) aged about 21/22 years and son-in-law, namely Jahangir (PW-2) left for Darbr Ghazi Ashaab on motorcycle Bearing Registration No. 9747/BKK for “زيارت” After some time the complainant along with his brother Hussain Bakhsh (given up PW) also left for Ziarat on a motorcycle. At about 06:00 p.m. they reached at the Darbar and saw that Faisal Bilal (deceased) was standing outside Darbar after Ziarat “زیارت” while Jahangir (PW-2) was coming out from the main gate of Darbar. In the meanwhile, Niaz Hussain (appellant) brother-in-law “سالہ” of the complainant duly armed with Churri (P-18) arrived there on a motorcycle and within their view Niaz Hussain (appellant) gave two churri blows out of which first landed on the left side of the chest and second on the outer side of left shoulder of Faisal Bilal (deceased) who fell on the ground. The appellant fled away from the spot on his motorcycle while raising lalkaras. Faisal Bilal (deceased) succumbed to the injuries at the spot. Hence, the abovementioned FIR (Ex.PA/2).
4. After completion of investigation, the challan was prepared and submitted before the learned trial Court. In order to prove its case, the prosecution produced ten witnesses during the trial. The prosecution also produced documentary evidence in the shape of (Ex.PA) to (Ex.PP). The statement of the appellant under Section 342, Cr.P.C., was recorded, wherein he denied the allegations leveled against him. The appellant neither opted to appear as his own witness on oath as provided under Section 340(2) of the Code of Criminal Procedure, 1898 in disproof of the allegations leveled against him nor he produced any witness in his defence. However, he produced documentary evidence in his defence in the shape of Ex.DA and Ex.DB.
5. The learned trial Court vide its judgment dated 10.04.2019, found the appellant guilty, convicted and sentenced him as mentioned and detailed above.
6. It is contended by learned defence counsel for the appellant that the appellant is absolutely innocent and he has falsely been implicated in this case by the complainant; that the prosecution witnesses are chance witnesses and they could not give any valid reason for their presence at the place of occurrence at the relevant time; that the conduct of the prosecution witnesses is highly unnatural, therefore, their evidence cannot be believed; that the recovery of Churri was planted against the appellant whereas the motive was also not proved by the prosecution in this case; that the prosecution miserably failed to prove its case against the appellant beyond the shadow of doubt, therefore, the appeal filed by the appellant may be accepted and the appellant may be acquitted from the charge.
7. On the other hand, learned Deputy Prosecutor-General for the State assisted by Learned counsel for the complainant has supported the impugned judgment while controverting the arguments of learned counsel for the appellant and argued that the prosecution has proved its case against the appellant beyond the shadow of any doubt, therefore, his appeal may be dismissed while maintaining the conviction and sentence of the appellant.
8. Arguments heard. Record perused.
9. The occurrence in this case took place in the darkness of the night in a deserted area. The ocular account of the prosecution was furnished by Ghulam Muhammad, complainant (PW-1) and Jahangir Akbar (PW-2). Ghulam Muhammad, complainant (PW-1) during his cross-examination stated regarding the place of occurrence as under:
“......................... Darbar Ghazi Pir As’hab is located in deserted area, reed bushes and date trees are situated around the building of above-said Darbar. Population consists at a distance of 02 or 03 Acres around Darbar Ghazi Pir As’hab. Only one room is in existence in said Darbar Rab Nawaz, Zahoor Ali and Nazar Hussain organizers of said Darbar are residing there and their houses are situated at a distance of 2/3 Acres from the building of Darbar ……..”
Ghulam Muhammad, complainant (PW-1) stated in his cross-examination that his house was situated at a distance of half kilometer from the place of occurrence whereas the house of Jahangir Akbar (PW-2) was situated at a distance of 12/13 kilometers from his house. The relevant part of his statement in this respect reads as under:
“........ The house of Jahangir PW is at a distance of 12/13 kilometers from my house towards north east direction. Our mosque is situated at a distance of 1/1½ furlongs from my house. Darbar Ghazi Pir As’hab is situated at a distance of half kilometer from my house towards western side .......”
It is, therefore, evident that houses of both the abovementioned eye-witnesses are situated at some distance from the place of occurrence, which was a deserted place but no reason has been given by the abovementioned witnesses for visit of place of occurrence on the night of occurrence. Ghulam Muhammad, complainant (PW-1) has further conceded during his cross-examination that Jahangir Akbar (PW-2) reached his house by chance. The relevant part of his statement in this is reproduced hereunder for ready reference:
“............... Jahangir PW reached at our home suddenly (by chance) ............”
As mentioned earlier even Ghulam Muhammad, complainant (PW-1) whose house was situated at a distance of half kilometer from the place of occurrence has not given any reason for the visit of place of the occurrence on the night of occurrence which was a deserted place. Although Jahangir Akbar (PW-2) has tried to explain the reason of his presence at the spot by stating that on the day of occurrence he had taken his mother-in-law (wife of the complainant) to the DHQ Hospital, Bhakkar as she was ill but no such reason of his presence was mentioned in the contents of the FIR. No prescription or receipt of DHQ Hospital, Bhakkar was produced in the prosecution evidence to support the abovementioned claim of Jahangir Akbar (PW-2). I am, therefore, of the view that the abovementioned witnesses are chance witnesses, therefore, their eviderice cannot be accepted without proof of a valid reason of their presence at the spot at the relevant time. The Hon’ble Supreme Court of Pakistan in the case of “Mst. Sughra Begum and another vs. Qaiser Pervez and others” (2015 SCMR
1142) at Para No. 14, observed regarding the chance witnesses as under:
“14. A chance witness, in legal parlance is the one who claims that he was present on the crime spot at the fateful time, albeit, his presence there was a 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.”
Likewise, in the case of “Sufyan Nawaz and another vs. The State and others” (2020 SCMR 192) at Para No. 5, the Apex Court of the country was pleased to observe as under:
“............. He admitted that in his statement before police, he had Not assigned any reason for coming to village on the day of occurrence. In these circumstances, complainant Muhammad Arshad (PW.7) is, by all means, a chance witness and his presence at the spot at the relevant time is not free from doubt.”
Similar view was taken in the case of “Muhammad Irshad vs. Allah Ditta and others (2017 SCMR 142). Relevant part of the said judgment at Para No. 2 reads as under:
“........ Muhammad Irshad complainant (PWS) and Rab Nawaz (PW9) were chance witnesses and the stated reason for their presence with the deceased at the relevant time had never been established before the trial Court through any independent evidence ....…”
As the above mentioned prosecution eye-witnesses are chance witnesses and they could not prove any valid reason of their presence at the spot at the time of occurrence, therefore, their very presence at the place of occurrence at the relevant time becomes doubtful.
10. It is further noteworthy that the conduct of the abovementioned eye-witnesses is highly unnatural. Ghulam Muhammad, complainant (PW-1) is real father of the deceased whereas Jahangir Akbar (P-2) is son-in-law “داماد” of the complainant and brother-in-law “بہنوئی” of Faisal Bilal (deceased) whereas Hussain Bakhsh (given up PW) was real brother of the complainant. The complainant party including Faisal Bilal (deceased) was comprising of four male adult members whereas, on the other hand Niaz Hussain, appellant was alone. He was not carrying any formidable fire-arm weapon and he was only armed with a Churri. Neither the abovementioned eye-witnesses tried to save Faisal Bilal (deceased) from the hands of the appellant at the time of occurrence nor they tried to apprehend the appellant after the occurrence though they were present only at a distance of about twenty feet from Faisal Bilal (deceased) as given in the side plan Ex.PD and Ex.PD/1. I am, therefore, of the view that conduct of the prosecution eye-witnesses, who according to their claim had witnessed the occurrence, is highly unnatural therefore, their presence at the spot is highly doubtful, hence their evidence is not worthy of reliance. It may refer here the case of “Liaquat Ali vs. The State” (2008 SMCR 95), wherein at Para No. 5-A of the judgment, the Hon’ble Supreme Court of Pakistan was pleased to observe as under:
“Having heard learned counsel for the parties and having gone through the evidence on record, we note that although P.W.7 who is first cousin and brother-in-law of Fazil deceased claims to have seen the occurrence from a distance of 30 ft. (as given in cross-Examination) and two other witnesses namely Musa and Ranjha were also attracted to the spot but none rescued Fazil deceased and appellant had a free hand to inflict as many as 9 injuries on his person. The explanation given by these witnesses that since Liaquat Ali had threatened them therefore, they could not go near Fazil deceased to rescue him is repellant to common sense as Liaquat Ali was not armed with a fire-arm which could have scared the witnesses away. He was a single alleged assailant and if the witnesses were there at the spot they could have easily overpowered him. This makes their presence at the spot doubtful.”
Similar view was reiterated by the august Supreme Court of Pakistan in the cases of “Pathan vs. The State” (2015 SCMR 315) & “Zafar vs. The State and others” (2018 SCMR 326). Under the circumstances, it cannot be safely held that the abovementioned eye-witnesses were present at the spot at the relevant time and they had witnessed the occurrence because their conduct is highly unnatural.
11. I have further noted that the occurrence in this case took place in the darkness of night. It was claim of the prosecution eye-witnesses that they identified the appellant in the light of their motorcycle but no motorcycle of the complainant or any prosecution witness was produced before the Investigating Officer or taken into possession. Likewise, no registration number, make or model number of the motorcycle has been mentioned in the contents of the FIR (Ex.PA/2). Under the circumstances, identification of the appellant in the darkness of night is not free from doubt. Reliance in this respect is placed on the judgments reported as “Nazeer Ahmad vs. Gehne Khan and others” (2011 SCMR 1473), “Sardar Bibi and others vs. Munir Ahmed, etc.” (PLJ 2017 SC 249), “Haleem and others vs. The State” (2017 SCMR 709) and “Muhammad Ashraf Javeed and another vs. Muhammad Umar and others” (2017 SCMR 1999).
12. Insofar as the recovery of blood-stained ‘churri’ (P-18) on the pointation of Njaz Hussain appellant is concerned, it is noteworthy that the occurrence in this case took place on 14.11.2018, whereas, churri’ (P-18) was recovered on the pointation of the appellant from his house on 23.11.2014 i.e., after 09 days from the occurrence and during the abovementioned period, Niaz Hussain appellant had ample opportunity to wash way the blood on ‘churri (P-18). The Hon’ble Supreme Court of Pakistan in the case of Basharat and another Vs The State’ (1995 SCMR 1735) disbelieved the evidence of blood-stained dagger which was allegedly recovered from the accused from his house after ten days from the occurrence. Relevant part of the said judgment at page No. 1739 is reproduced hereunder for ready reference:
“11. The occurrence took place on 20.04.1988. Basharat appellant was arrested on 28.04.1988. The blood-stained Chhuri was allegedly recovered from his house on 30.04.1988. It is not believable that he would have kept blood-stained chhuri intact in his house for ten days when he had sufficient time and opportunity to wash away and clean the blood on it.”
In the light of above, recovery of blood-stained ‘churri’ (P-18) on the pointation of Niaz Hussain, appellant is not free from doubt.
13. According to the prosecution case the motive behind the occurrence was that the appellant had suspicion against Faisal Bilal (deceased) that he had developed illicit relationship with his (appellant’s) wife and used to tease her. No witness has been produced in the witness box by the prosecution, who had ever seen Faisal Bilal (deceased) or wife of the complainant in compromising position or even talking to each other. No specific date, time and place regarding any visit of Faisal Bilal (deceased) to the house of the appellant for alleged illicit relationship with his wife, has been mentioned by any prosecution witness. Ghulam Muhammad, complainant (PW-1) has himself stated in his examination-in-chief that Niaz Hussain, accused was his Saala (wife’s brother) whereas Faisal Bilal (deceased) was his son. Keeping in view interse relationship of Faisal Bilal (deceased) and wife of the appellant, who was maternal aunt (ممانی) of the deceased the alleged motive does not appeal to a prudent mind. Even otherwise, no evidence has been produced by the prosecution to prove the alleged motive. Even the learned trial Court has disbelieved the alleged motive of the prosecution in paragraph No. 10 of the impugned judgment. I am, therefore, of the view that the motive alleged by the prosecution has not been proved in this case.
14. In the light of above discussion, I am of the view that the prosecution has failed to prove its case against the appellant beyond the shadow of doubt, therefore, I accept Criminal Appeal No. 44536-J of 2019 filed by Niaz Hussain appellant, set aside his conviction and
sentence recorded by the learned trial Court vide impugned judgment, dated 10.04.2019 and acquit him of the charge by extending him the benefit of doubt. The appellant Niaz Hussain is in custody, he be released from the jail forthwith, if not required to be detained in any other case.
(A.A.K.) Appeal accepted
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