PLJ 2024 Cr.C. (Note) 163
[Lahore High Court, Multan Bench]
Present: Sadaqat Ali Khan and Shehram Sarwar Ch., JJ.
versus
STATE and another--Respondents
Crl. A. No. 513 & M.R. No. 125 of 2017, heard on 22.9.2021.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Qatl-e-amd--Conviction and sentence--Challenge to--Testimony of chance witness--Motive--Medical evidence--No convincing or plausible reason for this inordinate delay was mentioned in FIR or stated before trial Court by complainant rather he stated during his cross examination that they did not call police at time of occurrence--This delay in setting machinery of law in motion speaks volumes against veracity of prosecution version--Case was got lodged on basis of suspicion and he has no objection to extent of grant of bail to appellant--Under circumstances, that it was an unwitnessed occurrence and eyewitnesses were not present on spot--The version of S.H.O (PW.9) in cross examination with regard to motive was that he did investigate case on motive part of occurrence but during investigation, he did not record statement of any witness to prove motive part of case--No independent witness qua motive was brought in witness box at trial-- Prosecution has failed to substantiate motive against appellant--The occurrence took place chhurri was got recovered by appellant which was received in office of Punjab Forensic Science Agency therefore, it was unlikely that blood on chhurri would not disintegrate during this period of about two months--As far as medical evidence is same may confirm, ocular account with regard to receipt of injury, locale of injury, kind of weapon used for causing injury, duration between injury and injury and death but it would not tell name of assailants--So far as defence plea taken by appellant in her statement under Section 342, Code of Criminal Procedure is concerned, since prosecution evidence is doubtful in nature, therefore, there is no need to discuss same which is exculpatory in nature--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--Appeal allowed. [Para 4, 5, 6, 7, 8, 9 & 10] A, C, D, E, F, G & H
2019 SCMR 274, 2009 SCMR 120 and 1995 SCMR 599.
Testimony of Chance Witness--
----It is in this context that testimony of a 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 a chance witness may be relied upon, provided some convincing explanations appealing to a prudent mind for his presence at crime spot are put forth, when occurrence took place otherwise his testimony would fall within category of suspect salt evidence and cannot be accepted without a pinch of salt.
[Para 5] B
2015 SCMR 1142 and 2016 SCMR 2021.
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 Dumber number of circumstances which have created serious doubt about prosecution story. [Para 10] I
2009 SCMR 230.
Mr. Nadir Sultan Marali, Advocate appointed as Defence counsel at State expense for Appellant.
Syed Nadeem Haider Rizvi, Deputy District Public Prosecutor for State.
Nemo for Complainant.
Date of hearing: 22.9.2021.
Judgment
Shehram Sarwar Ch., J.--Mst. Khalida Bibi (appellant) was tried by the learned Addl. Sessions Judge, Multan in case FIR No. 149 dated 07.04.2015, offence under Section 302 PPC, registered at Police Station Makhdoom Rasheed District Multan for the murder of Mst. Saima Bibi (deceased) sister of complainant. Vide judgment dated 27.04.2017 passed by the learned trial Court, the appellant has been convicted under Section 302(b) PPC and sentenced to death with a further direction to pay Rs.1,00,000/-(rupees one lakh only) as compensation under Section 544-A, Code of Criminal Procedure, to the legal heirs of deceased and in default whereof to further undergo simple imprisonment for three months. Assailing the above conviction and sentence, the appellant has filed the appeal in hand whereas the learned trial Court has sent Murder Reference No. 125 of 2017 for confirmation or otherwise of the appellant’s sentence of death, as required under Section 374 of the Code of Criminal Procedure. Since both these matters have arisen out of the same judgment, therefore, are being decided together through this single judgment.
2. Prosecution story, as set out in the FIR (Ex.PJ) registered on the statement (Ex.PA) of Tanveer Ahmad, complainant (PW.1) is that on 07.04.2015 at around 6.30 a.m. he along with his brother Naveed and brother-in-law Muhammad Iqbal went to Chak No. 5/MR to see his sister Mst. Saima Bibi aged about 25 years. Within the view of complainant party, Mst. Khalida Bibi gave successive chhurri blows to Mst. Saima Bibi, which landed on different parts of her body, who fell down in the room. The complainant side attended Mst. Saima Bibi, who was unconscious due to injuries. She was shifted to Nishtar Hospital, Multan by the complainant party and her husband Shaukat Ali through Rescue 1122. Motive behind the occurrence as alleged in the FIR was that Shaukat Ali had contracted love marriage (second) with Mst. Saima Bibi sister of complainant and there had been quarrel between Khalida Bibi (first wife) and Mst. Saima Bibi and due to that revenge, the former caused injuries to the latter. Subsequently Mst. Saima Bibi died in Nishtar Hospital, Multan and Section 302 PPC was substituted with Section 324 PPC.
3. We have heard learned counsel for the appellant as well as the learned DDPP for the State and gone through the record with their able assistance.
4. This tragic incident wherein Mst. Saima Bibi (deceased) sister of complainant lost her life, as per prosecution, took place on 07.04.2015 at about 6.30 a.m. in the area of Chak No. 5/MR situated within the territorial limits of Police Station Makhdoom Rasheed District Multan. The matter was reported to the police through statement (Ex.PA) of complainant on the same day at 10.05 a.m. i.e. about three hours and thirty five minutes after the incident and formal FIR (Ex.PJ) was got registered at 11.00 a.m. The distance between the police station and place of occurrence was five kilometers. No convincing or plausible reason for this inordinate delay was mentioned in the FIR or stated before the learned trial Court by the complainant rather he stated during his cross examination that they did not call the police at the time of occurrence. Therefore, we hold that this 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).
5. The ocular account in this case has been furnished before the learned trial Court by Tanveer Ahmad, complainant (PW.1), Naveed Ahmad (PW.2) and Shaukat Ali (PW.3), who were closely related to the deceased being her brothers (PW.1 & PW.2) and husband (PW.3). Shaukat Ali (PW.3) is also husband of the appellant. The said PW did not claim to have seen the occurrence and stated before the learned trial Court in his cross examination that he was present at Sabzi Mandi, Multan when his deceased wife Mst. Saima Bibi called him through mobile phone that Mst. Khalida by throwing chillies on her eyes had given her knife blows due to which she got injured. The deceased breathed her last in Nishtar Hospital, Multan but her statement/dying declaration was not recorded by the police. So far as the complainant (PW.1) and Naveed Ahmad (PW.2) are concerned, they were chance witnesses as they were neither residents of the place of occurrence nor have any place of business over there. No convincing or plausible reason was assigned by both the said witnesses for their presence on the spot at relevant time and it was simply stated by them in examination-in-chief that they along with Muhammad Iqbal (not produced) went to see her sister Mst. Saima Bibi at her house at Chak No. 5/MR. This very reason for their presence on the spot is negated from the statement of Naveed Ahmad (PW.2), who stated during cross examination that on 07.04.2015, Shaukat Ali (PW.3) called him through cellular phone that his wife was injured, therefore, he should reach Nishtar Hospital, Multan. So, he along with Tanveer Ahmad complainant (PW.1) went to Nishtar Hospital. Likewise, Shaukat Ali (PW.3) admitted in cross examination that the complainant and Naveed Ahmad were not present at the spot at that moment. He (PW.3) further volunteered that they came at Nishtar Hospital after the occurrence. Both the eyewitnesses had statedly seen the occurrence when they reached the house of deceased and we found it to be quite strange that despite their claimed presence at the scene of crime at relevant time, the said eyewitnesses along with Muhammad Iqbal had not tried to stop or catch hold of the appellant who was not armed with any firearm to ward the said witnesses off or to keep them away. Before the learned trial Court, the eyewitnesses have utterly failed to establish their presence on the place of occurrence at relevant time. It is in this context that the testimony of a 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 a chance witness may be relied upon, provided some convincing explanations appealing to a prudent mind for his presence at 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 case law reported as “Mst. Sughra Begum and another vs. Qaiser Pervez and others” (2015 SCMR 1142) and “Muhammad Javed vs. The State” (2016 SCMR 2021). There is another aspect of the matter. An affidavit sworn by the complainant before the learned trial Court at bail stage is available on record as Ex.DA, wherein he (complainant) deposed on oath that the instant case was got lodged on the basis of suspicion and he has no objection to the extent of grant of bail to the appellant. Under the circumstances, we are of the view that it was an unwitnessed occurrence and the eyewitnesses were not present on the spot.
6. Motive behind the occurrence as alleged in the FIR and brought before the learned trial Court was that Shaukat Ali (PW.3) had contracted love marriage (second) with Mst. Saima Bibi (deceased) and there had been quarrel between Khalida Bibi (first wife/appellant) and Mst. Saima Bibi and due to that revenge, the appellant committed her murder. It was stance of complainant in cross examination that out of marriage of Shaukat Ali and Mst. Saima Bibi (deceased), they had a son namely Sameer Ahmad aged about three years but no untoward incident had happened during this long interregnum. The version of Allah Ditta, S.I/I.O (PW.9) in cross examination with regard to the motive was that he did investigate the case on the motive part of the occurrence but during investigation, he did not record the statement of any witness to prove the motive part of the case. We have also observed that no independent witness qua motive was brought in the witness box at trial. Therefore, we hold that prosecution has failed to substantiate motive against the appellant.
7. So far as the alleged recovery of chhurri (P.1) at the instance of appellant is concerned, the same is inconsequential for the reason that the occurrence took place on 07.04.2015, chhurri was got recovered the by the appellant on 23.04.2015, which was received in the office of Punjab Forensic Science Agency on 08.06.2015, therefore, it was unlikely that the blood on the chhurri would not disintegrate during this period of about two months. Reliance is placed on the case law reported as “Muhammad Jamil vs. Muhammad Akram and others” (2009 SCMR 120).
8. As far as medical evidence is concerned, the same may confirm, the ocular account with regard to the receipt of injury, locale of injury, kind of weapon used for causing the injury, duration between the injury and the death but it would not tell the name of the assailants. Reliance is placed on “Ata Muhammad and another versus The State” (1995 SCMR 599).
9. So far as the defence plea taken by the appellant in her 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.
10. We 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 Dumber number of circumstances which have created serious doubt about the prosecution story. In this regard, reliance may be place on the case law, reported as “Muhammad Akram versus The State” (2009 SCMR 230).
11. For the foregoing reasons, Criminal Appeal No. 513 of 2017 filed by Mst Khalida Bibi (appellant) is allowed, conviction and sentence awarded to the appellant vide judgment dated 27.04.2017 passed by the learned Addl. Sessions Judge, Multan are set aside and she is acquitted of the charge levelled against her while extending her benefit of doubt. The appellant is in jail. She shall be released forthwith if not required to be detained in any other case.
12. Murder Reference No. 125 of 2017 is answered in the NEGATIVE and the sentence of death awarded to Mst. Khalida Bibi (convict) is NOT CONFIRMED.
(A.A.K.) Appeal allowed
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