PLJ 2024 Cr.C. (Note) 127
[Lahore High Court, Lahore]
Present: Shehram Sarwar Ch., and Ali Zia Bajwa, JJ.
MAZHAR and another--Appellants
versus
STATE--Respondent
Crl. A. No. 165202-J & M.R. No. 60 of 2018, heard on 25.4.2022.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Qatl-e-amd--Conviction and sentence--Challenge to--Conflict between ocular account and medical evidence--Benefit of doubt--Motive--Recovery is considered a corroborative piece of evidence, which is not sufficient to sustain conviction of an accused in a case where ocular account has already been discarded--When ocular account is not trustworthy and same is in conflict with medical evidence, motive alone does not advance prosecution case in any manner--Motive is only a circumstance which might lead to commission of an offence--When evaluated on yardstick of judicial prescriptions laid down in various judgments, reflect that prosecution has failed to prove its case against appellants beyond reasonable doubt--Held: It is established principle of law that for extending benefit of doubt, it is not necessary that there should be several circumstances, rather one reasonable doubt is sufficient to acquit an accused, not as a matter of grace but as of right.
[Para 14, 15 & 16] B, C & D
2021 SCMR 736, 2007 SCMR 486 & 2021 SCMR 873.
Benefit of Doubt--
----It is a settled law by now that benefit of such conflict always goes in favour of accused as it makes presence of eyewitnesses s at place of occurrence doubtful. [Para 12] A
2021 SCMR 736.
M/s. Mudassar Farooq, Syed Nadeem Ibrar, Abid Sandhu and Usman Hanif Qureshi, Advocates for Appellants.
Mr. Arshad Ali Farooqi, Deputy Prosecutor General for State.
Syed Zulfiqar Ali Bokhari, Advocate for Complainant.
Date of hearing: 25.4.2022.
Judgment
Ali Zia Bajwa, J.--Through this single judgment, we intend to decide Crl. Appeal No. 165202-J/2018 titled ‘Mazhar & another vs. The State’ filed by Mazhar and Nasir appellants against their convictions and sentences and Murder Reference No. 60/2018 titled “The State vs. (i) Nasir & (ii) Mazhar” forwarded by the learned trial Court for confirmation or otherwise of sentences of death awarded to the convicts as these are arising out of one and the same judgment of the learned trial Court.
2. Mazhar and Nasir both sons of Zafar, Sargana by caste and residents of Thatha Sargana, Tehsil Lalian, District Chiniot along with Mst. Paris Bibi (since acquitted) were involved in case FIR No. 107/2016, dated 06.07.2016, offences under Sections 302, 109, 148, 149, PPC, registered with Police Station Kandiwal, District Chiniot. Being aggrieved with the investigation carried out by local police, the complainant preferred to file direct complaint against accused persons titled: -
“Muhammad Pinnah vs. Nasir, etc.”
under Sections 302, 109, 148, 149, PPC. On filing of complaint, learned trial Court after recording preliminary/cursory statements of the prosecution witnesses, issued process against the accused/respondents. After recording of evidence and taking into consideration the material available on record, learned trial Court vide judgment dated 27.01.2018 acquitted Mst. Paris Bibi co-accused, however, while concluding that charge against the appellants was proved beyond reasonable doubt, convicted and sentenced them as under:
➤ Under Section 302(b), PPC, sentenced to death as Taz’ir with direction to pay Rs. 2,00,000/-each as compensation to legal heirs of the deceased in terms of Section 544-A, Cr.P.C. and in case of default in payment thereof, to S.I. for six months each.
3. Precisely facts of the case as narrated in the private complaint (Exh.PE) lodged by Muhammad Pinnah son of Mallah, caste Sargana, resident of Mouza Thatha (PW-1) are that on 06.07.2016, he along with Nasir Ali (son) riding on one motorcycle and Liaquat Ali (son) and Bano Bibi wife of Muhammad Yar riding on another motorcycle, were going to their house from Mouza Bahrr-ke. When they reached near Saim-Nala road within the territorial limits of Burj, at about 5:15 p.m, from opposite side, Nasir and Mazhar along with one unknown accused person riding on one motorcycle and three unknown accused persons riding on another motorcycle emerged there. They stopped their motorcycles on roadside and alighted while armed with Kalashnikovs/firearms. Liaquat Ali and Bano Bibi were ahead at some distance who were stopped by accused persons on gun point and made them alighted from their motorcycle. Appellant Nasir made firing upon Liaquat Ali with his Kalashnikov hitting at front of his chest, abdomen and upper part of left thigh. Appellant Mazhar made firing with his Kalashnikov hitting at the neck, right cheek and back side of head of the deceased, who after sustaining injuries fell down on the ground. Thereafter Nasir made fire shots hitting the deceased at left and right arms. Mazhar again made firing upon deceased hitting on his buttocks. After the occurrence the accused persons while brandishing their firearms by riding on their motorcycles made good their escape.
The complainant alleged that the accused pointed their firearms towards him and other PWs and due to fear they couldn’t intervene. Deceased succumbed to his injuries at the spot. Motive behind the occurrence was stated to be previous enmity over murder.
4. On receipt of information regarding the occurrence, Muhammad Iqbal S.I. (CW-3) reached the place of occurrence where he recorded statement of the complainant and dispatched it to Police Station through Jaffar Ali 220/C for registration of formal FIR. Thereafter, Investigating Officer drafted injury statement (Exh.CW-3/A), prepared inquest report (Exh.CW-3/B) and dispatched dead body to mortuary through Abdul Jamia 544/C (CW-5). From the spot he secured blood stained soil vide recovery memo Exh.PB. He took into possession 38 crime empties (P-1/1-38) vide recovery memo Exh.PC, motorcycle (P-2) vide recovery memo Exh.PD and also prepared rough site plan of the place of occurrence (Exh.CW-3/C). After postmortem examination last worn clothes of the deceased viz. Shirt (P-3), shalwar (P-4) and vest (P-5) were taken into possession vide recovery memo Exh.CW-3/D. On 10.07.2016 he recorded statements of Mudassar and Zohaib PWs of abetment under Section 161, Cr.P.C. On the direction of the Investigating Officer and pointing out of the PWs, Muhammad Mansab Ali, Patwari (CW-1) prepared scaled site plan of the place of occurrence (Exh.CW-1/A and Exh.CW-1/B). During the course of investigation carried out by CW-3, the accused couldn’t be traced out; hence police report was prepared and filed for further proceedings under Section 512, Cr.P.C.
Subsequently investigation was entrusted to Shabbir Ahmed, S.I. (CW-4) who on 25.01.2017 arrested Mazhar appellant and after investigation lodged him at judicial lock up. Thereafter on 02.05.2017 he arrested Nasir appellant, who during the course of interrogation on 12.05.2017, in pursuance of his disclosure, got recovered Kalashnikov (P-4) along with five live bullets (P-6/1-5), which were taken into possession vide recovery memo Exh.CW-4/B. After conclusion of investigation, Investigating Officer prepared and filed report under Section 173, Cr.P.C. However, the complainant filed private complaint.
5. The learned trial Court after recording cursory statements of the prosecution witnesses, issued process against the accused. They were indicted vide order dated 29.06.2017 to which they pleaded not guilty and claimed trial. Prosecution, in order to establish its case against the appellants, produced three prosecution witnesses while learned trial Court also examined ten Court witnesses.
6. Muhammad Pinnah (PW-1) and Mst. Bano Bibi (PW-2) are eyewitnesses of the case. Muhammad Mansab Ali Patwari (CW-1) prepared scaled site plan of the place of occurrence. Dr. Adnan Rasheed (CW-6) conducted postmortem examination over the dead body. Investigation in this case was conducted by Muhammad Iqbal, S.I. (CW-3) and Shabbir Ahmed, S.I. (CW-4). Statements of rest of the prosecution witnesses, more or less, are formal in nature.
7. After completion of the prosecution evidence, statements of the appellants under Section 342, Cr.P.C. were recorded by the learned trial Court. They professed their innocence and pleaded false implication in the case. Upon completion of trial, the learned trial Court found the prosecution case proved to the hilt against the appellants, thus, convicted and sentenced them as mentioned and detailed above, however, Mst. Paris Bibi, co-accused, was acquitted of the charge.
8. Arguments heard, record perused.
9. Prosecution in order to prove its case relied upon ocular account, medical evidence, recovery and motive.
Ocular account and medical evidence
10. Occurrence in this case took place on 06.07.2016 at 5:15 p.m. and FIR was registered on the same day at 7:30 p.m. The dead body was received in mortuary on the following day i.e. 07.07.2016 at 12:45 a.m. (night) whereas postmortem examination was conducted at 1:15 a.m. Inquest report transpires that the dead body was identified by Muhammad Mumtaz (not produced) and Mudassar Ali (PW-3).
We have straightway noticed that according to the FIR appellant Nasir has been attributed the role of making firing at the deceased which hit on his chest and abdomen. He also made fire shots which hit the deceased on his right and left biceps and arms. Appellant Mazhar made fire shots which hit deceased on his throat, lower lip, cheek and on the back side of the head. He also made fire shots which hit deceased on his right and left buttocks. But in private complaint an additional injury on the upper part of left thigh was attributed to appellant Nasir. This fact was duly confronted to the complainant during the course of cross-examination that injury on left thigh attributed to appellant Nasir was not mentioned in the crime report. It seems that dishonest improvement was made in private complaint in order to bring medical evidence in line with the ocular account.
11. Inquest report transpires that dead body of deceased was identified by Muhammad Mumtaz (not produced) and Mudassar Ali (PW-3). None of the eyewitness has been mentioned as present in the relevant column of the inquest report, which further makes their presence at the place of occurrence doubtful. It also does not appeal to common sense that the appellants who were allegedly armed with most sophisticated deadly weapons would leave the prosecution witnesses alive, especially, when those witnesses were closely related to deceased and there was every possibility that they would depose against the accused persons. Mst. Bano Bibi (PW-2), who was nominated accused in murder case of father of the appellants (motive of the instant occurrence) and who remained incarcerated in jail, was also left alive. This fact clearly suggests that said witness was not present at the place of occurrence as claimed by prosecution; otherwise she would have been harmed by the accused persons especially when she was allegedly riding on the same motorcycle along with the deceased.
12. Perusal of Postmortem Report (PMR), available on record as Exh.CW-6/A, transpires that injury attributed to Mazhar appellant on the lower lip is an exit wound of injury on the right cheek. It has been further noticed that injuries on right and left buttocks of the deceased attributed to Mazhar appellant are exit wounds of injuries on the pubic area, lower abdomen and upper thighs which have been attributed to appellant Nasir. Aforementioned facts clearly indicate that there is a conflict between ocular account and medical evidence. It is a settled law by now that benefit of such conflict always goes in favour of accused as it makes presence of eyewitnesses at the place of occurrence doubtful. Reliance is placed on the decision of august Supreme Court of Pakistan in Najaf Ali Shah[1] wherein it was held as infra:
“9 ... once a single loophole is observed in a case presented by the prosecution, such as conflict in the ocular account and medical evidence or presence of eye-witnesses being doubtful, the benefit of such loophole/lacuna in the prosecution’s case automatically goes in favour of an accuse.”
13. In the aforementioned circumstances we are compelled to disbelieve and discard the ocular account being in conflict with the medical evidence and due to implausibility of presence of eyewitnesses at the place of occurrence.
14. During the course of interrogation on 12.05.2017, appellant Nasir Ali led to the recovery of Kalashnikov (P-4) along with five live bullets (P-6/1-5). Thirty eight crime empties taken into possession from the place of occurrence at the time of spot inspection were sent to Punjab Forensic Science Agency on 18.07.2016 whereas recovered weapon of offence was submitted on 18.05.2017. Report of forensic lab transpires that crime empties couldn’t have been fired from the weapon of offence recovered on the pointing out of Nasir appellant. Therefore, recovery of Kalashnikov is inconsequential and of no help to the prosecution case. Even otherwise recovery is considered a corroborative piece of evidence, which is not sufficient to sustain conviction of an accused in a case where ocular account has already been discarded.
Motive
15. It has been alleged in the private complaint that there was enmity over murder inter-se the parties in which father of the appellants namely Zafar was murdered in the year 2006 and deceased was a nominated accused in that case. Subsequently compromise was effected between the parties and matter was amicably settled. There is nothing available on the record that why after so many years, appellants would plan to take revenge of their deceased father without any triggering circumstances. We are persuaded to hold that prosecution couldn’t prove motive as alleged in the private complaint through cogent and convincing evidence. Even otherwise when ocular account is not trustworthy and the same is in conflict with the medical evidence, motive alone does not advance the prosecution case in any manner. Moreover, motive is only a circumstance which might lead to the commission of an offence. Reliance can be placed on Akbar Ali vs. The State. 2007 SCMR 486, wherein it was observed by the apex Court:
“It is also a settled law that the existence of motive/enmity is neither a substantive nor a direct evidence. It is not corroborative piece of evidence either. The motive/enmity is only a circumstance which may lead to the commission of an offence. It is a starting point for committing a crime but under no circumstances it can be taken as an evidence.”
16. All the above narrated facts and circumstances when evaluated on the yardstick of judicial prescriptions laid down in various judgments, reflect that the prosecution has failed to prove its case against the appellants beyond reasonable doubt. It is established principle of law that for extending benefit of doubt, it is not necessary that there should be several circumstances, rather one reasonable doubt is sufficient to acquit an accused, not as a matter of grace but as of right. Respectful reliance can be placed on catena of judgments[2] of apex Court. August Supreme Court of Pakistan in Najaf Ali Shah supra observed as infra:
“It is a well settled principle of law that for the accused to be afforded this right of the benefit of the doubt it is not necessary that there should be many circumstances creating uncertainty and if there is only one doubt, the benefit of the same must go to the petitioner”
Same principle was reiterated in Ahmed Omar Sheikh[3] in the following terms:
“Even if a single circumstance create reasonable doubt in a prudent mind regarding guilt of an accused then the accused shall be entitled to such benefit not as a matter of grace and concession but as a matter of right and such benefit must be extended to the accused person(s) by the Courts without any reservation”
17. In consequence of the aforementioned discussion, Crl. Appeal No. 165202-J/2018 tilted ‘Mazhar and another vs. The State’ is ALLOWED. Judgment dated 27.01.2018 passed by the learned trial Court is set aside and the appellants are ACQUITTED of the charges. They are directed to be released forthwith if not required in any other case.
18. Murder Reference No. 60/2018 forwarded by the learned trial Court in terms of Section 374, Cr.P.C. for confirmation of death sentences awarded to the convicts fails, which is answered in NEGATIVE. Death sentences are NOT CONFIRMED.
(A.A.K.) Appeal allowed
[1]. Najaf Ali Shah vs. The State-2021 SCMR 736.
[2]. Muhammad Mansha v. The State-2018 SCMR 772, The STATE through P.G. Sindh and others v. AHMED OMAR SHEIKH and others-2021 SCMR 873, Naveed Asghar v. State-PLD 2021 SC 600 & Ayub Masih v. The State PLD 2002 SC 1048.
[3]. The State through P.G. Sindh and others vs. Ahmed Omar Sheikh and others-2021 SCMR 873
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