PLJ 2024 Cr.C. (Note) 129
[Lahore High Court, Lahore]
Present: Shehram Sarwar Ch., J.
ABDUL REHMAN--Appellant
versus
STATE--Respondent
Crl. A. No. 93147-J of 2017, heard on 20.5.2022.
Witness--
----It is well settled by now that when a witness improves his statement to strengthen prosecution case and moment it is concluded that improvement was made deliberately and with mala fide intention testimony of such witness does not remain reliable.
[Para 4] A
2010 SCMR 385 & 1993 SCMR 550.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Qatl-e-amd--Conviction and sentence--Challenge to--Chance witness--Benefit of doubt--Ocular account--All these PWs have not given any plausible reason for their presence on spot at time of incident--Their houses have not been shown in scaled site place close to place of occurrence--They have no place of business or agricultural land near place of occurrence--They were chance witnesses--Prosecution could not prove its case against appellant beyond any shadow of doubt--Held: 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--Further 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, D & E
PLD 2021 SC 600 & 2009 SCMR 230.
Testimony of Chance Witness--
----Testimony of chance witnesses require cautious scrutiny and was not to be accepted unless they give satisfactory Explanation of presence at or near place of occurrence at relevant time--So far as alleged recovery of cloth around neck of deceased is concerned same is immaterial because it was an ordinary cloth easily available in market and moreover same was not recovered at instance of appellant--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. [Para 4] C
2016 SCMR 1605.
Ms. Sumera Hussain, Advocate/Defence Counsel for Appellant.
Mr. Sana Ullah, Deputy Prosecutor General for State.
Mr. Umer Shahzad, Advocate for Complainant.
Date of hearing: 20.5.2022.
Judgment
Abdul Rehman (appellant) was tried by learned Addl. Sessions Judge/Judge Juvenile Court, Jaranwala in case FIR No. 44 dated 21.01.2016, offence under Sections 302, 367-A, 377/511, PPC, registered at Police Station Khurrianwala District Faisalabad. Vide judgment dated 11.09.2017 passed by learned trial Court, the appellant has been convicted under Section 367-A, PPC and sentenced to ten years S.I. alongwith fine of Rs. 50,000/-and in default whereof to further undergo three months simple imprisonment. He was further convicted under Section 377/511, PPC and sentenced to five years S.I. alongwith fine of Rs. 20,000/-and in case of non-payment of fine he will further suffer simple imprisonment for a period of three months. The appellant was also convicted under Section 302 (b), PPC and sentenced to imprisonment for life with a further direction to pay Rs. 1,00,000/-as compensation under Section 544-A, Cr.P.C. and in default whereof to further undergo six months S.I. All the sentences were ordered to run concurrently. Benefit of Section 382-B, Cr.P.C. was extended to the appellant. Assailing the above convictions and sentences, the appellant has filed the appeal in hand.
2. Prosecution story, as set out in the FIR (Ex.PG/3) registered on the statement (Ex.PG) of Asghar Ali, complainant (PW.4) is that on 21.01.2016 at about 8:00 p.m. Adbul Rehman (appellant) kidnapped Qurban Ali, aged about seven years, son of the complainant, committed sodomy with him and thereafter committed his murder by strangulation and the said occurrence was witnessed by complainant, Liaqat Ali and Naseer Ahmad, PWs.
3. Arguments heard, record perused.
4. Ocular account in this case was furnished by Asghar Ali, complainant (PW.4), Naseer Ahmad (PW.5) and Liaqat Ali (PW.6). It was the claim of all these PWs that they saw in torch light that Abdul Rehman (appellant) was committing unnatural offence with Qurban Ali while putting snare around his neck but surprisingly they all PWs neither made an abortive attempt to save Qurban Ali (deceased) from the clutches of appellant nor caught hold of the appellant red-handed on the spot and this sole circumstance negates their presence on the spot at the time of incident. It was also the claim of all these PWs that they allegedly saw the incident in torch light but Muhammad Ayub Sahi, Inspector (PW.8) has stated in his cross-examination that the torch of complainant was not taken into possession by him during the course of investigation. The stance of all the eye-witnesses that when they reached the spot the appellant was committing sodomy with the deceased but no solid evidence qua said piece of evidence was produced by the prosecution during the trial. The DNA test report is in the negative wherein it is clearly mentioned that no seminal material was detected on Item No. 1. The learned trial Court has observed in Paragraph No. 19 of the impugned judgment that “In my opinion, offence of sodomy was not completed and it was only attempt to commit sodomy with the deceased”. It is astonishing to note that in the absence any cogent evidence as to how the learned trial Court presumed that the appellant attempted to commit sodomy with the deceased prior to his murder. Now I take up the objection of the learned counsel for the appellant as to applicability or otherwise of the provisions of Section 367-A, PPC to the facts and circumstances of the case. In the FIR as well as in the statements of all the eye-witnesses there was no allegation against the appellant that he by force compelled, or by any deceitful means induced Qurban Ali (deceased) to go from any place for the purpose of unnatural offence. In the FIR liaqat Ali (PW.6) saw the appellant and deceased while going towards Saim Nala. Therefore, I hold that provisions of Section 367-A, PPC are not attracted against the appellant. I have further noted that all the eye-witnesses, 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. It is well settled by now that when a witness improves his statement to strengthen the prosecution case and the moment it is concluded that the improvement was made deliberately and with mala fide intention the testimony of such witness does not remain reliable. Reliance is placed on case law titled as “Muhammad Rafique and others versus The State and Others” (2010 SCMR 385) and “Syed Saeed Muhammad Shah and Another versus The State” (1993 SCMR 550). I have further noted that all these PWs have not given any plausible reason for their presence on the spot at the time of incident. Their houses have not been shown in the scaled site place close to 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. So far as alleged recovery of cloth around the neck of deceased is concerned the same is immaterial because it was an ordinary cloth easily available in the market and moreover the same was not recovered at the instance of the appellant. 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).
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, convictions and sentences awarded to the appellant vide judgment dated 11.09.2017 passed by the learned trial Court are set aside and the appellant is acquitted of the charges levelled against him while extending him benefit of doubt. Abdul Rehman (appellant) is in jail. He shall be released forthwith if not required to be detained in any other case.
(A.A.K.) Appeal allowed
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