PLJ 2024 Cr.C. (Note) 173
[Lahore High Court, Lahore]
Present: Sadaqat Ali Khan and Shehram Sarwar Ch., JJ.
AAMIR ALI--Appellant
versus
STATE--Respondent
Crl. A. No. 367-J & M.R. No. 206 of 2014, heard on 22.9.2017.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b) & 392--Qatl-e-amd--Conviction and sentence--Challenge to--Benefit of doubt--Delay--Ocular account--Medical evidence--Evidentiary value of forensic report--There is absolutely no plausible or convincing reason for aforesaid delay in reporting matter to police which casts serious doubt about veracity of prosecution story--Both witnesses of ocular account were chance witnesses--Admittedly 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 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 a pinch of salt--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 any of culprits implicated in this case--O cular account is in direct conflict with medical evidence because in FIR it was case of prosecution that two unknown accused persons made two firearm injuries on person of deceased but Dr PW.7 who conducted autopsy of dead body of deceased stated in his cross examination that ‘it is correct that as per postmortem report, dissection shows that it was only one injury case--There were four injuries on body of deceased which was caused by single fire shot’--As far as alleged recovery of motorcycle (P.5) at instance of appellant is concerned same is of no avail to prosecution because no registration book of said motorcycle was produced during trial. [Para 7, 9, 10 & 11] A, B, C, D & F
1995 SCMR 127, 2011 SCMR 1473, 2016 SCMR 1605 &
2008 SCMR 707.
Forensic Report--
----It is, by now, well established proposition of law that if crime empty is sent to Forensic Science Laboratory after arrest of accused or together with crime weapon, positive report of said Laboratory loses its evidentiary value. [Para 11] E
2002 SCMR 1986, 2007 SCMR 525 & 2008 SCMR 707.
Burden of Proof--
----Prosecution could not prove its case against appellant beyond any shadow of doubt--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 13] G
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 13] H
2009 SCMR 230.
Ch. Muhammad Naseer Kamboh, Advocate/Defence Counsel appointed at State expense.
Rai Akhtar Hussain, Deputy Prosecutor General for State.
Nemo for Complainant.
Date of hearing: 22.9.2017.
Judgment
Shehram Sarwar Ch., J.--Aamir Ali (appellant) was tried by the learned Addl Sessions Judge, Sialkot in case FIR No. 26/2011, dated 10.06.2011, offence under Sections 302 and 34, PPC, registered at Police Station Railway Police, Sialkot for the murder of Muhammad Afzal (deceased) brother of the complainant. Vide judgment dated 28.05.2014 passed by the learned Addl Sessions Judge, Sialkot, the appellant was convicted under Section 302(b), PPC and sentenced to death, with a further direction to pay Rs. 2,00,000/- (rupees two lakh only) as compensation under Section 544-A, Cr.P.С. to the legal heirs of the deceased. He was also convicted under Section 392, PPC and sentenced to seven years R.I. with fine of Rs. 50,000/- and in default of payment of fine, he shall further undergo four months S.I. Assailing the above convictions and sentences, the appellant has filed the appeal in hand whereas the learned trial Court has sent Murder Reference No. 206 of 2014 for confirmation or otherwise of Aamir Ali, appellant’s sentence of death, as required under Section 374, Code of Criminal Procedure. Since both these matters have arisen out of the same judgment, therefore, shall be decided together through this single judgment.
2. Prosecution story, as set out in the FIR (Ex.PB/1) registered on the application (Exh.PB) of Muhammad Rashid, complainant (PW.9) is that he (complainant) was resident of Mohallah Siraj Gang Shakargarh. On 10.06.2011 at about 12.45 p.m. complainant’s brother namely Muhammad Afzal was coming back after dropping his friend Muhammad Rafique Master to his house. When he reached at Railway Plate Form Shakargarh, two unknown persons while armed with firearms were already present there who intercepted Muhammad Afzal and grappled with him. Muhammad Afzal fell on railway track. On his falling position, one unknown person made a fire with .30 bore pistol which landed on the flank of Muhammad Afzal. The other unknown person made a second fire with pistol which landed on the right arm of Muhammad Afzal. Liaqat Ali, cousin of complainant and Naveed Akram who were going to the office of food department, witnessed the occurrence and informed the complainant. The accused persons fled away from the spot after taking motorcycle Honda CD/70 APL, red colour bearing chassis No. JD453325 of Muhammad Afzal. Muhammad Afzal succumbed to the injuries at the spot.
3. After completion of investigation, report under Section 173, Code of Criminal Procedure was submitted in the case. The appellant was summoned by the learned Addl Sessions Judge, Sialkot to face the trial. Copies of relevant documents were provided to him, as required under Section 265-C, Code of Criminal Procedure and formal charge under Sections 302 and 392, PPC was framed against him on 10.10.2012, to which he pleaded not guilty and claimed trial. After the closure of prosecution evidence, statement of the appellant under Section 342, Code of Criminal Procedure was recorded on 19.05.2014, wherein he refuted all the allegations of the prosecution and professed his innocence. In answer to a question as to why the case against him and why the prosecution witnesses had deposed against him, Aamir Ali (appellant) stated as under:
“The instant case against me has been menovoured on party ranor and animosity”.
The appellant neither opted to appear as his own witness, in disproof of the allegations levelled against him, as provided under Section 340(2), Code of Criminal Procedure nor did he produce any evidence in his defence. However, after conclusion of the trial, the learned trial Court convicted and sentenced the appellant, as detailed above. Hence this appeal and murder reference.
4. Learned counsel for the appellant contends that the appellant has falsely been implicated in this case; that appellant is not nominated in the FIR either by name or description; that no identification parade was conducted in this case; that there was delay of about two hours and forty five minutes in reporting the matter to the police without there being any satisfactory explanation; that Muhammad Rashid complainant (PW.9) is not an eye-witness of occurrence; that presence of both the witnesses of ocular account i.e. Liaqat Ai (PW.10) and Naveed Akram (PW.11) on the spot at the relevant time is doubtful in nature; that medical evidence is only a supporting piece of evidence and relevant only if the primary evidence i.e. ocular account inspires confidence which is not the situation, in this case, that alleged recoveries of motorcycle (P.5) and pistol .30 bore (P.6) at the instance of appellant are inconsequential; that viewing from all angles the prosecution case is doubtful in nature and the appellant is entitled to acquittal.
5. On the other hand, learned Deputy Prosecutor General opposes this appeal on the grounds that there was no conscious or deliberate delay in reporting the matter to the police; that though the name of the appellant is not mentioned in the FIR but this sole circumstance goes a long way to establish bona fide of the complainant because had there been any malice on the part of the complainant, the appellant could have straightaway been nominated in the FIR; that presence of both the witnesses of ocular account on the spot at the relevant time is quite natural and probable; that the ocular account is fully supported by medical evidence which is further corroborated by the recoveries of motorcycle (P.5) and pistol .30 bore (P.6) at the instance of the appellant; that the prosecution has successfully brought home guilt against the appellant to the hilt and there is no merit in this appeal.
6. We have heard learned counsel for the appellant as well as learned Deputy Prosecutor General for the State at a considerable length and have also gone through the record very minutely.
7. This unfortunate incident wherein Muhammad Afzal was done to death, as per FIR (Ex.PB/1), took place on 10.06.2011 at 12.45 p.m. whereas the matter was reported to the police on the same day at 3.30 p.m. i.e. about two hours and forty five minutes after the occurrence. There is absolutely no plausible or convincing reason for the aforesaid delay in reporting the matter to the police which casts serious doubt about the veracity of prosecution story. Reliance may be placed on case laws titled as “Mehmood Ahmed and three others vs. The State and another” (1995 SCMR 127) and “Nazeer Ahmad vs Gehne Khan and others” (2011 SCMR 1473).
8. Undisputedly, the case was registered against two unknown persons and as per prosecution story both the accused persons made two fires, one after the other, which landed on the flank and left arm of Muhammad Afzal (deceased) due to which he succumbed to the injuries on the spot. There is no mention in the FIR as to whose (accused) fire-shot hit on the person of Muhammad Afzal due to which he died. We have further noticed that Aamir Ali (appellant) is not nominated in the FIR (Exh.PB/1) either by name or description. In the FIR as well as before the learned trial Court description/feature such as age, height, complexion and physique of the appellant was not given. This occurrence allegedly took place on 10.06.2011 whereas the appellant was implicated in this case on 24.09.2011 i.e. 3½ months after the incident. No identification parade was conducted in this case. The alleged confession of appellant about the present occurrence before the policy has no value in the eye of law. Surprisingly, on 11.09.2011, before the involvement of appellant in this case, complainant made a supplementary statement and implicated two other persons namely Adil and Imtiaz alias Mithu with a strong suspicion that they had committed the murder of Muhammad Afzal which fact shows that it was an unseen incident and the complainant’s side had no knowledge about the actual culprits.
9. Muhammad Rashid complainant (PW.9) is not an eye-witness of the occurrence. He reported the matter to the police on the information allegedly imparted to him by Liaqat Ali and Naveed Akram, therefore, the testimony of complainant (PW.9) is excluded from consideration. Ocular account in this case was furnished by Liaqat Ali (PW.10) and Naveed Akram (PW.11). Admittedly, both these witnesses ordinarily resided about 12/13 kilometers away from the place of occurrence and the stated reason for their presence on the place of occurrence had remained far from being established through any independent evidence whatsoever. Therefore, we hold that both the witnesses of ocular account were chance witnesses. Admittedly. 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 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 case laws reported as “Mst. Shazia Parveen vs. The State” (2014 SCMR 1197) and “Muhammad Rafique vs. The State” (2014 SCMR 1698). Therefore, we hold that presence of both these eye-witnesses on the spot at the relevant time is not free from doubt.
10. 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 any of the culprits implicated in this case. Reliance is placed on case law titled as “Muhammad Saleem vs. Shabbir Ahmad and others” (2016 SCMR 1605). Moreover, ocular account is in direct conflict with the medical evidence because in the FIR it was the case of prosecution that two unknown accused persons made two fire-arm injuries on the person of Muhanımad Afzal (deceased) but Dr. Khalid Mehmood Ashraf (PW.7) who conducted autopsy of the dead body of deceased stated in his cross-examination that ‘it is correct that as per postmortem report, the dissection shows that it was only one injury case. There were four injuries on the body of deceased which was caused by the single fire shot.’
11. So far as the alleged recovery of .30 bore pistol (P.6) at the instance of Aamir Ali (appellant) is concerned the same is immaterial because as per report of Forensic Science Agency (Exh.PU) the pistol as well crime empties were received together in the said office. It is, by now, well established proposition of law that if the crime empty is sent to the Forensic Science Laboratory after the arrest of the accused or together with the crime weapon, the positive report of the said Laboratory loses its evidentiary value. Reliance in this respect is placed on the case of “Jehangir vs. Nazar Farid and another” (2002 SCMR 1986), “Israr Ali vs. The State” (2007 SCMR 525) und “Ali Sher and others vs. The State” (2008 SCMR 707). As far as alleged recovery of motorcycle (P.5) at the instance of appellant is concerned the same is of no avail to the prosecution because no registration book of the said motorcycle was produced during the trial.
12. So 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.
13. 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 number of circumstances which have created serious doubt about the prosecution story. In “Muhammad Akram versus The State” (2009 SCMR 230), the Hon’ble Supreme Court of Pakistan, at Page 236, was pleased to observe 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 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.”
14. For the foregoing reasons, the appeal in hand is allowed, convictions and sentences awarded to the appellant vide judgment dated 28.05.2014 passed by the learned Addl Sessions Judge, Sialkot are set aside and the appellant is acquitted of the charge levelled against him while extending him benefit of doubt. Aamir Ali, appellant is in jail. He shall be released forthwith if not required to be detained in any other case.
15. Murder Reference No. 206 of 2014 is answered in the NEGATIVE and the sentence of death awarded to Aamir Ali (convict) is NOT CONFIRMED.
(A.A.K.) Appeal allowed
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