PLJ 2024 Cr.C. (Note) 181
[Lahore High Court, Lahore]
Present: Malik Shahzad Ahmad Khan and Farooq Haider, JJ
SAJID alias MOLVI and another--Appellants
versus
STATE--Respondent
Crl. A. No. 44165-J & M.R No. 114 of 2021, heard on 4.12.2023.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b), 394, 337-F(v), 337-F(ii)--Qatl-e-amd--Conviction and sentence--Challenge to--Chance witness--Benefit of doubt--Identification parade--They were chance witnesses as they could not--Justify reason of their presence at spot at relevant time and this fact coupled with fact that there is delay of more than 10 hours in lodging FIR therefore, it appears that abovementioned eye witnesses were not present at spot at relevant time hence, their evidence is not worthy of reliance--Prosecution eye-witnesses are chance witnesses and they could not prove any valid reason of their presence at spot at time of B occurrence, therefore, their very presence at place of occurrence at relevant time becomes doubtful--Insofar as identification of appellants during identification parade by PW-13 and PW-14 is concerned, we have noted that no features, complexions, of unknown accused, their heights or ages whatsoever, were mentioned in FIR--Non-mentioning of features of accused persons by prosecution eye witnesses, in contents of FIR, renders identification parade of appellants as useless--Prosecution could not prove its case against appellants beyond shadow of doubt--Held: It is by now well settled 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 doubts about prosecution story. [Para 11, 12 & 17] A, B, C & D
2015 SCMR 1142, 1993 SCMR 585, 2011 SCMR 563, 1995 SCMR 1345.
Mr. Kamran Javed Malik, Advocate and Rana Muhammad Arif, Advocate for Appellants.
Mr. Munir Ahmad Sial, Addl. Prosecutor General for State.
M/s. Malik Muhammad Aslam and Abdul Khaliq Butt, Advocates for Complainant.
Date of hearing: 4.12.2023.
Judgment
Malik Shahzad Ahmad Khan, J.--By this single judgment we shall decide Criminal Appeal No. 44165-J of 2021 titled as ‘Sajid alias Molvi& another vs. The State’, filed by Sajid alias Molvi and Azam (appellants), as well as, Murder Reference No. 114 of 2021, submitted by the learned trial Court for confirmation or otherwise of the sentence of death awarded to Sajid alias Molvi (appellant) in a state case bearing case FIR, No. 08 dated 06.01.2019 registered at Police Station Satrah District Sialkot offences under Sections 302/394/337. F(v)/337 F(iii)/411 of PPC. We propose to decide both these matters by this single judgment as both have arisen out of the same judgment dated 29.06.2021 passed by the learned Addl. Sessions Judge-I/Judge MCTC, Daska District Sialkot. The appellants on the conclusion of the trial, vide the impugned judgment dated 29.06.2021, were convicted & sentenced as under:-
Sajid alias Molvt.
Under Section 302(b) PPC to ‘Death’ as tazir for committing Qatl-i-Amd of Ahtisham Tariq (deceased). He was also ordered to pay Rs. 500,000/- (Rupees five hundred thousand only) to the legal heirs of Ahtisham Tariq (deceased) under Section 544-A Cr.P.C. & in default thereof, to undergo six months imprisonment.
Under Section 394 PPC to Imprisonment for Life along with fine of Rs. 50,000/- (Rupees fifty thousand only) and in default thereof, to further undergo one month imprisonment
Under Section 337-F(v) PPC to three years R.1 with Daman of Rs. 100,000/-, payable to Haji Javed Ahmad complainant/injured (PW-12) and in default thereof to further undergo two months imprisonment.
Under Section 337-F(ii) PPC to one year RI with ‘Daman’ of Rs. 50,000/-, payable to Haji Javed Ahmad complainant/injured (PW-12) and in default thereof to further undergo one month imprisonment.
Azam.
Under Section 302(b) PPC to ‘imprisonment for life as tazir for committing Qutl-i-Amd of Ahtisham Tariq (deceased). He was also ordered to pay Rs. 500,000/- (Rupees five hundred thousand only) to the legal heirs of Ahtisham Tariq deceased under Section 544-A Cr.PC, and in default thereof, to further undergo six months imprisonment
Under Section 394 PPC to Imprisonment for Life along with fine of Rs. 50,000/- (Rupees fifty thousand only) and in default thereof to further undergo one month imprisonment.
The learned trial Court however, acquitted Qasim& Nasir co-accused by extending them the benefit of doubt. The sentences of imprisonment awarded to the appellants were directed to run concurrently. Benefit of Section 382-B of Cr.P.C., was also extended in favour of the appellants.
2. Brief facts of the case as given by Haji Javed Ahmad complainant (PW-12) in his compliant (Exh.PW), on the basis of which formal FIR (Exh.PD) was chalked out, are that he (complainant) was resident of village Kot Karam Bakhash and agriculturist by profession. On 06.01.2019 at 12:30 p.m., he (complainant) along with his nephew, namely, Ahtisham Tariq (deceased), his wife, namely, Sumaira (given up PW), niece Ammara Tariq (PW-13) & her husband, namely, Abdullah (PW-14) were going on a Mehran Car bearing registration No. LEE/1993, to the house of his (complainant’s) sister situated at Ghakharwali for a meal/lunch, as two couples were recently wedded. At about 01:45 p.m., when the complainant party reached at one furlong distance from Kassowala Main Adda, Pasrur, at road leading to Ghakharwali village, two unknown accused persons, who could be identified on confrontation, while riding on motorcycle Honda 125 without registration number, armed with pistols stopped them (complainant party). Out of the aforementioned two accused persons, one accused person made firing at the complainant party on the suspicion of resistance, resultantly, two fire shots hit on upper side of right knee joint, whereas, one fire shot on the back side of left buttock of Haji Javed Ahmad complainant. Two fire shots of the accused hit at the left side of the chest of Ahtisham Tariq (deceased) out of which one fire shot made its exit from his back side. They both (complainant and Ahtisham Tariq) became seriously injured. Thereafter, accused persons forcibly snatched gold finger rings, bangles, bracelets & cash amount of Rs. 25,000/- from Mst. Sumera (given up PW) at gun point and fled away from the spot. The complainant and Ahtisham Tariq (deceased) were shifted to the Civil Hospital, Daska, wherefrom, they were referred to the Civil Hospital, Gujranwala for medical treatment. Initially FIR was lodged for offence under Section 394 of PPC however, on the death of Ahtisham Tariq (deceased), offence under Section 302 of PPC was added vide Rapt No. 27/2 dated 12.01.2019.
3. Azam appellant was arrested in this case on 09.03.2019 by Basharat Ali, Sub Inspector (PW-17) and his identification parade in this case was held on 16.03.2019, wherein, Ammara Tariq (PW-13) & Abdullah (PW-14) identified Azam appellant. On 19.03.2019, Sajid alias Molvi appellant was arrested and his identification parade was held in this case on 21.03.2019 and during the said proceedings, Ammara Tariq (PW-13) and Abdullah (PW-14) identified Sajid alias Molvi appellant. On 22.04.2019, Azam appellant got recovered gold necklace (P. 18) &gold pair of ear rings (P-10) vide recovery memo (Exh.PP). He also got recovered Honda Motorcycle 125 (P-20) vide recovery memo (Exh.PQ). Sajid alias Molvi appellant got recovered three (03) gold bangles (P-22) and one purse (P-23) vide recovery memo (Exh.PS). On 25.04.2019, Azam appellant disclosed that he used pistol during the occurrence which he had already used in the occurrence of FIR No. 08 of 2019 of Police Station SadarDaska District Sialkot. On 26.04.2019, Sajid alias Molvi appellant got recovered pistol 30 bore (P-25) vide recovery memo (Exh.PU). After completion of investigation, report under Section 173 of Cr.P.C., was submitted by the police before the Court. The learned trial Court, after observing legal formalities, as provided under the Code of Criminal Procedure, 1898 framed charge against the appellants on 14.10.2019 to which they pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution produced twenty (20) witnesses during the trial and also produced documentary evidence in the shape of Exh.PA to Exh.PYY.
5. The statements of the appellants under Section 342 of Cr.P.C., were recorded. The appellants refuted the allegations leveled against them and professed their innocence. The appellants did not opt to make their statements on oath as envisaged under Section 340(2) of the Code of Criminal Procedure, 1898 in disproof of the allegations leveled against them however, produced documentary evidence Exh.DA to Exh.DE in their defence.
The learned trial Court vide its judgment dated 29.06.2021, found the appellants guilty, convicted and sentenced them as mentioned and detailed above.
6. It is contended by learned counsel for the appellants that the appellants are innocent and they have falsely been implicated in this case by the complainant being in league with the local police; that the occurrence was unseen; that there is delay of more than 10 hours in lodging the FIR which means that FIR was lodged with deliberation and consultation; that Haji Javed Ahmad complainant (PW-12) did not join the identification parade and as such, his non-joining the aforementioned proceedings, being injured witness, has made the identification proceedings doubtful; that recoveries have been planted against the appellants; that the prosecution has failed to prove its case against the appellants beyond the shadow of doubt. It is therefore, prayed that while setting-aside the impugned judgment, the appeal may be allowed and the appellants may be acquitted of the charge by extending them the benefit of doubt & murder reference be answered in the negative.
7. On the other hand, it is contended by the learned Addl. Prosecutor General for the State assisted by learned counsel for the complainant that delay in lodging the FIR has plausibly been explained as the complainant party remained busy in the medical treatment of the injured persons which rules out any deliberation and concoction; that the prosecution eye witnesses stood the test of lengthy cross-examination but their evidence could not be shaken; that no ill-will has been established against the prosecution eye witnesses for false involvement of the appellants in this case, that ocular account of the prosecution is fully supported by the medical evidence; that prosecution case against the appellants is further corroborated by the recovery of the pistols, looted gold ornaments and motorcycle, which was used during the occurrence, on pointing out of the appellants; that there is no substance in the appeal filed by the appellants therefore, the same may be dismissed, Murder Reference be answered in the affirmative and the sentences awarded to the appellants by the learned trial Court may be upheld & maintained.
8. Arguments heard. Record perused.
9. Prosecution story as set forth in the complaint (Exh.PW), on the basis of which formal FIR (Exh.PD) was chalked out, has already been reproduced in para No. 2 of this judgment therefore, there is no need to repeat the same.
10. We have noted that there is delay of 10 hours and 5 minutes in lodging of the FIR. Although prosecution witnesses tried to explain the said delay while stating that after the occurrence, Ahtisham Tariq (deceased), in injured condition, and Haji Javed Ahmad complainant (PW-12), who received injuries on his body during the occurrence, were firstly taken to the Civil Hospital, Daska, from where they were referred to the Civil Hospital, Gujranwala therefore, the FIR could not be lodged promptly, but it is noteworthy that as per contents of the FIR, the complainant party was comprising of five members, namely, Haji Javed Ahmad complainant (PW-12), Ahtisham Tariq (deceased), Mst. Sumera (given up PW), Mst. Ammara Tariq (PW-13) and Abdullah (PW-14) and though Ahtisham Tariq (deceased) and Haji Javed Ahmad complainant (PW-12) were injured at the time of occurrence but none from the remaining members of the complainant party, lodged the FIR for a period of more than 10 hours from the occurrence. It is further noteworthy from the MLRs of Ahtisham Tariq (deceased), the then injured of this case and Haji Javed Ahmad complainant (PW-12) (Exh.PF) & (Exh.PG) that they were medically examined through police i.e., Basharat Ali, 979/Sub Inspector which shows that even at the time of medical examination of Ahtisham Tariq (deceased), the then injured, and Haji Javed Ahmad complainant (PW-12), the police was present at the Civil Hospital, Daska but even at that time, none from the complainant party, lodged the FIR. Abovementioned gross-delay in lodging of the FIR has created doubt regarding the truthfulness of the prosecution story.
11. It is also noteworthy that the occurrence in this case took place in the area of Village Kassowala Tehsil Daska District Sialkot, whereas, Haji Javed Ahmad complainant (PW-12) was resident of Kot Karam Bakhash, Mst. Ammara Tariq (PW-13) & Abdullah (PW-14) were residents of Baqirpur, whereas, Zohaib Nawaz (PW-16) was resident of College Road Tehsil Daska. It is true that Shahzad Adeel (PW-15) was resident of village Kassowal, where the occurrence took place but the Aforementioned other eye-witnesses of the occurrence were not residents of the Village Kassowal. Moreover, names of Shahzad Adeel (PW-15) and Zohaib Nawaz (PW-16) were not mentioned in the contents of the FIR and they were subsequently introduced as eye-witnesses in this case and their statements were recorded by the police for the first time on 21.03.2019 i.e., after 02 months and 15 days from the occurrence. In their above-referred statements, they along with other prosecution eye-witnesses dishonestly improved the prosecution case and enhanced the number of the accused persons from two accused persons, as mentioned in the FIR, to four accused persons while stating that two additional accused, namely, Qasim (co-accused since acquitted) and Nasir (co-accused since acquitted) were also present at the spot in a Vaganor car and they facilitated Azam and Sajid alias Molvi appellants in fleeing away from the spot after the occurrence. No such fact was mentioned in the contents of the delayed FIR that any other accused, apart from the two unknown accused persons mentioned therein, was also present at the spot at the relevant time or he/they facilitated the two unknown accused mentioned in the FIR in fleeing away from the spot. Moreover, learned trial Court has disbelieved the evidence of Shahzad Adeel
(PW-15) and Zohaib Nawaz (PW-16) and acquitted Qasim and Nasir co-accused vide impugned judgment dated 29.06.2021. No appeal against the acquittal of aforementioned co-accused has been filed either by the State or by the complainant and as such, their acquittal has attained finality and as such, the evidence of Shahzad Adeel (PW-15) and Zohaib Nawaz (PW-16) has already been disbelieved in this case. As mentioned earlier, remaining prosecution witnesses were not residents of the village Kassowal where the occurrence took place and they were residents of villages Karam Bakhash or Baqirpur or Daska and as such, they were chance witnesses and they were required to establish the reason of their presence at the spot at the time of occurrence. In order to justify their presence at the spot at the relevant time, they stated that as the marriages of Ahtisham Tariq (deceased) & Abdullah (PW-14) were recently solemnized therefore, they were going to the house of the sister of the complainant to attend a party hosted by her, in the honour of newly wedded couples however, house of the said sister of the complainant is also situated in different village i.e. Ghakhar and admittedly said house was not situated in village Kassowal, where the occurrence took place. Name of the sister of the complainant has not been mentioned by any of the witnesses. No wedding car of Ahtisham Tariq (deceased) or Abdullah (PW-14) was produced in the prosecution evidence to justify the reason of presence of abovementioned witnesses in another village at the date & time of occurrence. Likewise, neither the sister of the complainant nor any family member of the said sister was produced in the witness box to support the abovementioned claim of the prosecution. We are therefore, of the view that as the remaining witnesses of the prosecution (PW-12 to PW-14) were not residents of the village where the occurrence took place therefore, they were chance witnesses as they could not justify the reason of their presence at the spot at the relevant time and this fact coupled with the fact that there is delay of more than 10 hours in lodging the FIR therefore, it appears that abovementioned eye-witnesses were not present at the spot at the relevant time hence, their evidence is not worthy of reliance. 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.”
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 (PW8) 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 abovementioned 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.
12. It is true that both the appellants were identified by Mst. Ammara Tariq (PW-13) and Abdullah (PW-14) during the identification parade but the star witness of this case, namely, Haji Javed Ahmad (PW-12) who was an injured eye witness of this case, did not join the proceedings of identification parade of the police. Learned Addl. Prosecutor General assisted by learned counsel for the complainant has argued that as the abovementioned Haji Javed Ahmad complainant (PW-12) has stated during his cross-examination that he remained hospitalized for 2/3 months after the occurrence therefore, he did not join the proceedings of identification parade of the appellants. No Medical Officer or any document has been produced in the prosecution evidence to show that Haji Javed Ahmad complainant (PW-12) remained hospitalized for 2/3 months after the occurrence and he was unable to move/walk for the abovementioned period to justify the abovementioned reason of non participation of the complainant in the identification parade of the appellants. It is further noteworthy that even after the recovery of Haji Javed Ahmad complainant (PW-12) from injuries, no identification parade of the appellants was held so that the complainant who was the star witness in this case being the injured eye witness, could identify the appellants during the identification parade. No explanation in this respect has been given by the prosecution.
Insofar as the identification of the appellants during the identification parade by Mst. Ammara Tariq (PW-13) and Abdullah (PW-14) is concerned, we have noted that no features, complexions, of the unknown accused, their heights or the ages whatsoever, were mentioned in the FIR. Non-mentioning of the features of the accused persons by the prosecution eye witnesses, in the contents of the FIR, renders the identification parade of the appellants as useless. Reliance in this respect may be placed on the cases reported as State/ Government of Sindh through Advocate-General, Sindh, Karachi vs. Sobharo (1993 SCMR 585) & ‘Sabir Ali alias Fauji vs. The State’ (2011 SCMR 563).
13. Learned counsel for the complainant while relying on the cases reported as Muhammad Hayat and another vs. The State’ (2021 SCMR 92), Atta-ur-Rehman and another vs. The State’ (2018 SCMR 372), ‘Ghulam Abbas vs. The State (2022 SCMR 1102), Ijaz Ahmad vs. The State (2009 SCMR 99), ‘Muhammad Bashir and another vs. The State and others’ (2023 SCMR 190) & ‘Javed Ishfaq vs. The State (2020 SCMR 1414), argued that non-mentioning of the features/ complexions of the accused persons in the FIR is not always fatal to the prosecution case and mere on this ground, the prosecution evidence cannot be brushed aside but we have noted that facts of the judgments cited by learned counsel for the complainant are distinguishable from the facts of the instant because in the case of ‘Muhammad Hayat and another’ supra, FIR was promptly lodged within a period of 15 minutes form the occurrence and the empties recovered form the spot matched with the weapon recovered on pointing out of the accused of that case, whereas, as mentioned earlier, FIR in the instant case was lodged with the delay of more than 10 hours and the empties recovered from the spot did not match with the weapons recovered on pointing out of the appellants. Likewise, remaining judgments cited by learned counsel for the complainant are also distinguishable on their own facts.
14. We have also noted that eight empties were recovered from the spot and pistols 30 bore were recovered from both the appellants but as per report of PFSA (Exh.PWW), empties recovered from the spot did not match with the pistol recovered on pointing out of Azam appellant, whereas, regarding pistol recovered on pointing out of Sajid alias Molvi appellant, it was concluded that no comparison with empties was conducted and report of PFSA is only regarding the working condition of abovementioned weapon. Hence, the above-referred recoveries of pistols on pointing out of the appellants are of no avail to the prosecution.
15. Insofar as the recovery of gold bracelet and pair of ear rings from the possession of Azam appellant and recovery of three gold bangles and purse from Sajid alias Molvi appellant are concerned, we have noted that there is no mentioning of snatching of any gold ear ring in the contents of the FIR. Likewise, numbers of gold bangles, snatched during the occurrence, were also not mentioned in the FIR. Similarly, there was no mentioning of snatching of any purse from the PWs in the contents of the FIR. Similarly, no specific identification mark or weight of bangle and bracelet have been mentioned therein. Moreover, identification memo of the abovementioned gold ornaments and purse by the prosecution witnesses shows that gold ornaments and purse were not mingled with other gold ornaments and purses at the time of their identification by the complainant party and as such, identification memo of the abovementioned gold ornaments and purse has been prepared in violation of law on the subject hence, the recoveries of said articles are inconsequential.
16. It is worth mentioning here that the prosecution evidence has been disbelieved by the learned trial Court against Qasim and Nasir (co-accused since acquitted), against whom the prosecution witnesses alleged that they were present at the time of occurrence and they also facilitated the appellants at the time of occurrence and no appeal against their acquittal has been filed by the State or by the complainant, and as such, their acquittal has attained finality. The prosecution evidence which has been disbelieved against Qasim and Nasir (co-accused since acquitted), cannot be believed against the appellants without independent corroboration which is very much lacking in this case as such, the appellants are also entitled to the same relief which has been extended in favour of the aforementioned co-accused since acquitted. Reliance in this respect may be placed on the case of Akhtar Ali and others vs. The State (2008 SCMR 6).
17. We have considered all the aspects of this case and have come to this irresistible conclusion that the prosecution could not prove its case against the appellants beyond the shadow of doubt. It is by now well settled 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 doubts about the prosecution story. In the case of “Tariq Pervez vs. The State” (1995 SCMR 1345), the Hon’ble Supreme Court of Pakistan, at page 1347, was pleased to observe as under:-
‘5 ........ The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right.’
The Hon’ble Supreme Court of Pakistan while reiterating the same principle in the case of “Muhammad Akram vs. The State” (2009 SCMR 230), at page 236, observed as under:
“13 ........ It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as a matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right.”
18. In the light of above discussion, we are of the view that the prosecution has miserably failed to prove its case against the appellants beyond the shadow of doubt, therefore, Criminal Appeal No. 44165-J of 2021 filed by Sajid alias Molvi and Azam appellants is accepted, their convictions & sentences recorded by the learned trial Court are set aside and they are acquitted of the charges by extending them the benefit of doubt. Resultantly, Murder Reference No. 114 of 2021 is answered in the negative & death sentence of Sajid alias Molvi appellant is not confirmed. The appellants, namely, Sajid alias Molvi & Azam are in custody, they 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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