PLJ 2024 Cr.C. (Note) 118
[Lahore High Court, Lahore]
Present: Shehram Sarwar Ch., J.
GHULAM ABBAS alias ALLAH RAKHA--Appellant
versus
STATE--Respondent
Crl. A. No. 32-J of 2015, heard on 26.10.2021.
Delay in Reporting Crime--
----Inordinate delay in setting machinery of law in motion speaks volumes against veracity of prosecution version. [Para 4] A
2019 SCMR 274.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Qatl-e-amd--Conviction and sentence--Challenge to--Benefit of doubt--Occurrence took place in night--Testimony of chance witness--Delay in reporting crime--Such noticeable delay is normally occasioned due to incomplete police papers necessary to be handed over to Medical officer to conduct postmortem examination of dead body of deceased which happens only when complainant and police remain busy in consultation and preliminary inquiry regarding culprits in such cases of unwitnessed occurrence--No independent witness qua motive was associated by police during investigation or produced before trial Court by prosecution during trial--The alleged recovery of hatchet at instance of appellant is immaterial because same was not stained with blood and trial Court has rightly disbelieved said piece of evidence in impugned judgment--Evidence furnished by prosecution is shaky in nature and cannot be relied upon for maintaining convictions/sentences of appellant--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. [Para 4, 5 & 6] B, E & F
2011 SCMR 1190 & 2016 SCMR 1628.
Chance Witness--
----Testimony of--The testimony of chance witness ordinarily is not accepted unless justifiable reasons are shown to establish his presence at crime scene at relevant time--In normal course, presumption under law would operate about his absence from crime spot--The testimony of chance witness may be relied upon, provided some convincing explanations appealing to a prudent mind for his presence on crime spot are put forth, when occurrence took place otherwise his testimony would fall within category of suspect evidence and cannot be accepted without pinch of salt. [Para 4] C
Motive--
----The motive is only based upon suspicion but law is settled that suspicion howsoever grave or strong can never be a proper substitute for proof beyond reasonable doubt required in a criminal case. [Para 4] D
2016 SCMR 1019 and 2016 SCMR 1617.
Benefit of Doubt--
----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 6] G
2009 SCMR 230.
Syed Nadeem Ibrar Shah, Advocate/Defence Counsel for Appellant.
Sheikh Muhammad Noman Siddiuqe, Deputy Prosecutor General for State.
Nemo for Complainant.
Date of hearing: 26.10.2021.
Judgment
Ghulam Abbas alias Allah Rakha (appellant) was tried by the learned Addl. Sessions Judge, Arifwala in case FIR No. 556 dated 08.11.2010, offence under Section 302, PPC registered at Police Station Arifwala District Pakpattan. Vide judgment dated 24.12.2014 the appellant has been convicted under Section 302(b), PPC and sentenced to imprisonment for life on three counts with a further direction to pay Rs. 2,00,000/-(rupees two lakh only) as compensation to the legal heirs of each deceased as required under Section 544-A, Cr.P.C. and in default whereof to further undergo six months simple imprisonment on three counts. Benefit of Section 382-B, Cr.P.C. was extended to the appellant. All the sentences were ordered to run concurrently. Assailing the above convictions and sentences, the appellant has filed the appeal in hand.
2. Prosecution story, as set out in the FIR (Exh.PE) registered on the statement (Exh.PA) of Basharay Khan, complainant (PW.9) is that about 15/16 years ago his daughter Irshad Bibi alias Shado contracted marriage with Abbas with her own choice and out of said wedlock two daughters namely Mst. Saima Bibi and Mst. Naila Bibi were born. Abbas suspected that Mst. Irshad Bibi had developed illicit relations with one Bashir. About 2/3 years back Mst. Irshad Bibi alongwith her daughters, having annoyed with her husband, went to the house of Bahsir. Abbas had fetched her back at his house. On 07.11.2010 at evening time complainant alongwith his sons Rashid and Latif had come to the house of her daughter Mst. Irshad Bibi in order to see her. They slept over there after taking dinner. At about 2:30 or 3:00 a.m. they woke up on hearing hue and cry. They saw through the window of the room that Abbas was armed with hatchet and he inflicted successive blows on the neck and legs of Mst. Irshad Bibi who fell down. Mst. Saima and Mst. Naila Bibi tried to rescue her, Abbas inflicted hatchet blows on their necks due to which they also fell down. Abass fled away from the spot while raising lalkaras. The complainant and other PWs attended Mst. Irshad Bibi, Mst. Saima Bibi and Mst. Naila Bibi who were smeared with blood and succumbed to the injuries on the spot.
3. Arguments heard, record perused.
4. The occurrence in this case allegedly took place on the night of 08.11.2010 at 2:30/3:00 a.m. whereas the matter was reported to the police on the following day at 8:30 a.m. The distance between police station and the place of occurrence is two miles. There is a delay of about five hours and thirty minutes in reporting the crime to the police without there being any plausible explanation. It is also worth mentioning here that while appearing before the learned trial Court both the witnesses of ocular account namely Basharay Khan, complainant (PW.9) and Muhammad Arshad (PW.10) did not utter even a single word about the above said delay. Therefore, I hold that this inordinate delay in setting the machinery of law in motion speaks volumes against the veracity of prosecution version. Reliance is placed on case law titled as “Altaf Hussain vs. The State” (2019 SCMR 274). Moreover, Dr. Sagheer Ahmad Ch. (PW.12), who furnished secondary evidence on behalf of Dr. Nazia Parveen has stated in his cross-examination that “It is correct that duration between death and postmortem given by the said doctor was 30½ Hours”. It has been held repeatedly by the Hon’ble Supreme Court of Pakistan that such noticeable delay is normally occasioned due to incomplete police papers necessary to be handed over to the Medical officer to conduct the postmortem examination of dead body of the deceased which happens only when the complainant and police remain busy in consultation and preliminary inquiry regarding the culprits in such cases of unwitnessed occurrence. Reliance is placed on case law titled as “Irshad Ahmed vs. The State” (2011 SCMR 1190) and “Nazeer Ahmed vs. The State” (2016 SCMR 1628). Ocular account in this case consists of Basharay Khan, complainant (PW.9) and Muhammad Arshad (PW.10). The presence of both these witnesses on the spot at the time of incident is doubtful in nature because had they been present on the spot at the relevant time why they did not try to rescue the deceased or to catch hold of the appellant who, admittedly, was not armed with any firearm to ward the said eye-witnesses off or to keep them away at the time of incident. The delay in the FIR as well as postmortem examination of the dead-bodies of all the deceased also casts doubt about their presence on the spot at the time of incident. I have further observed that both the witnesses of ocular account were chance witnesses because the occurrence allegedly took place in the area of Chak No. 145/EB Tehsil Arifwala whereas both the eye-witnesses were resident of Chak No. 459/E.B Tehsil and District Vehari which place was far away from the place of occurrence. Both these PWs have no agricultural land or place of business near the place of occurrence. Before the learned trial court they have not given any plausible reason for their presence on the spot at the time of incident. 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. The testimony of chance witness may be relied upon, provided some convincing explanations appealing to a 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. Reliance may be placed on the cases reported as “Mst Shazia Parveen vs. The State” (2014 SCMR 1197) and “Muhammad Rafique vs. The State” (2014 SCMR 1698). Motive behind the occurrence was that Ghulam Abbas alias Allah Rakha (appellant) suspected that his wife Mst. Irshad Bibi (deceased) had developed illicit relations with one Bashir and due to the said grudge he committed the murder of his wife as well as two daughters namely Mst. Saima Bibi and Mst. Naila Bibi. Admittedly, the motive is only based upon suspicion but the law is settled that suspicion howsoever grave or strong can never be a proper substitute for proof beyond reasonable doubt required in a criminal case. Reliance may be placed on case law titled as “Muhammad Jamshaid and another vs. The State and others” (2016 SCMR 1019) and “Muhammad Ashraf vs. The State” (2016 SCMR 1617). Moreover, no independent witness qua motive was associated by police during investigation or produced before the learned trial Court by the prosecution during the trial. The alleged recovery of hatchet at the instance of appellant is immaterial because same was not stained with blood and the learned trial Court has rightly disbelieved the said piece of evidence in the impugned judgment. Therefore, I hold that the evidence furnished by the prosecution is shaky in nature and cannot be relied upon for maintaining the convictions/sentences 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 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, the appeal in hand filed by Ghulam Abbas alias Allah Rakha (appellant) is allowed, convictions and sentences awarded to him vide judgment dated 24.12.2014 passed by the learned Addl. Sessions Judge, Arifwala are set aside and the appellant is acquitted of the charges levelled against him while extending him benefit of doubt. Ghulam Abbas alias Allah Rakha (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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