PLJ 2024 Cr.C. (Note) 191
[Lahore High Court, Lahore]
Present: Shehram Sarwar Ch., J.
versus
STATE--Respondents
Crl. A. No. 183952-J of 2018, decided on 4.6.2024.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Qatl-e-amd--Conviction and sentence--Challenge to--Benefit of doubt--No direct evidence--Testimony of witness--Extra-judicial confession--There is no direct evidence against appellant as far as murder of deceased is concerned and case in hand is one of circumstantial evidence--It has been held in a number of cases by Hon’ble Supreme Court of Pakistan that circumstantial evidence in an unseen occurrence should be like a well-knit chain and each circumstance was to be connected with each other to make one complete chain and if even one link of chain is missing this would entitle accused to be acquitted by giving him benefit of doubt--Extrajudicial confession is always considered a weak type of evidence and it is procured at any time during investigation when there is no direct evidence available to prosecution--Moreover, legal worth of extra judicial confession too is almost equal to naught, keeping in view natural course of events, human behaviours, conduct and probabilities, in ordinary course--Needless to remark that extra judicial confession has never been considered sufficient for recording conviction on a capital charge unless it is strongly corroborated by tangible evidence coming from unimpeachable source, therefore, in Court view this piece of evidence is entirely insufficient to maintain conviction on such a charge, more so, when it is badly tainted one and appears to be job of investigating officer who normally indulge in such like police chicanery--All pros and cons of this case and have come to this irresistible conclusion that 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. [Para 5 & 6] A, C & D
2008 SCMR 1103, 2011 SCMR 1127, 2009 SCMR 407, PLD 2003 SC 704 and 2017 SCMR 986.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 161--Extra-judicial confession-- It is a settled law that credibility of a witness is looked with serious suspicion if his statement under Section 161, Cr.P.C. is recorded with delay without offering any plausible explanation. [Para 5] B
1998 SCMR 570.
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] E
2009 SCMR 230.
M/s. Ali Hussain and Mian Shahbaz, Arif Padday, Advocates for Appellant.
Sh. Muhammad Nauman Siddique Deputy Prosecutor General for State.
Ms. Kiran Shahzadi and Ch. Najam-ul-Hassan, Advocates for Complainant.
Date of hearing: 4.6.2024.
Judgment
Muhammad Usman alias Mashuri (appellant) was tried by learned Addl. Sessions Judge, Sialkot in case FIR No. 384 dated 10.09.2017, offence under Sections 302, 404 and 201, PPC, registered at Police Station Cantt. District Sialkot for the murder of Ghazanfar Ali (deceased) brother-in-law of the complainant. Vide judgment dated 08.02.2018 passed by learned trial Court, the appellant has been convicted under Section 302(b), PPC and sentenced to imprisonment for life, with a further direction to pay compensation of Rs. 3,00,000/- to the legal heirs of deceased and in default whereof to further undergo simple imprisonment for six months. Benefit of Section 382-B, Cr.P.C. was extended to the appellant. Assailing the above conviction and sentence, the appellant has filed the appeal in hand.
2. Prosecution story, as set out in the FIR (Ex.PB) registered on the written application (Ex.PH) of Asghar Ali, complainant (PW.7) is that Ghazanfar Ali brother-in-law (sala) of complainant lived with him, who was a saint (darwaish) person and fond of catching fish. On 10.09.2017 at around 8.30 a.m. Ghazanfar Ali went to catch fish from Nala Palku within the area of Mauza Sidh and did not return back after a long time. The complainant received information that a dead body was lying in the water at the bank of Nala Palku. He along with Amjad Javed and Shamas Iqbal reached Nala Palku and took out the dead body of Ghazanfar Ali from the said nala. It was mentioned in the FIR that some unknown accused committed the murder of deceased by torturing him as there was bleeding from his head and mouth.
3. I have heard arguments of learned counsel for the parties as well as learned Law Officer for the State to their entire satisfaction, given serious consideration to their respective submissions and also perused the record.
4. Undisputedly, it was an unseen incident and no one had seen the appellant while killing the deceased namely Ghazanfar Ali. The role played by the appellant in the incident in issue had never been mentioned in the FIR or narrated before the learned trial Court through any solid or convincing evidence. It has also never been disclosed or alleged by the prosecution in the FIR as to under what circumstances the deceased had been done to death and the case was got registered against unknown accused. It was case of the prosecution in the FIR that Ghazanfar Ali (deceased) left the house for fishing and did not return home for a long time. Having received information that a dead body is lying in the water at the bank of Nala Palku, the complainant party reached there and took out the dead body of Ghazanfar Ali (deceased) from the water. As such, the body of deceased was not recovered at the instance of the appellant. Though as per stance of complainant in examination-in-chief, on 10.09.2017, he got recorded his supplementary statement because due to depression, he could not mention the whole facts in his application (Ex.PH) but the said supplementary statement was not exhibited during the course of trial.
5. Undeniably, there is no direct evidence against the appellant as far as murder of the deceased is concerned and the case in hand is one of circumstantial evidence. It has been held in a number of cases by the Hon’ble Supreme Court of Pakistan that circumstantial evidence in an unseen occurrence should be like a well-knit chain and each circumstance was to be connected with each other to make one complete chain and if even one link of the chain is missing this would entitle the accused to be acquitted by giving him the benefit of doubt. Reliance is placed upon “Altaf Hussain vs. Fakhar Hussain and another” (2008 SCMR 1103) “Muhammad Hussain versus The State” (2011 SCMR 1127), “Ibrahim and others versus The State” (2009 SCMR 407), “Sh. Muhammad Amjad v. The State” (PLD 2003 Supreme Court 704) and “Hashim Qasim and another versus The State” 2017 SCMR 986). The case of the prosecution is based on the following pieces of evidence:
Evidence of Wajtakkar:
The evidence of wajtakkar was furnished before the learned trial Court by Muhammad Akbar (PW.6), who was brother of the complainant. Before the learned trial Court, it was claimed by him (PW.6) that on 10.09.2017 at about 9.15 a.m. he along with his son Istikhar Akbar went to see his younger brother Amjad at Mauza Dalowali on a motorcycle and when they reached near narrow street of Jinnah Model School, the appellant was coming from the house of Amjad Javaid, whose clothes were wet and stained with blood. The appellant was already known to them and oftenly used drugs. They tried to stop him but he fled away. After the visit of house of Amjad Javaid, they came back to their houses and remained busy in their work. At about 5.00 p.m. his brother Asghar Ali (complainant) called him (PW.6) telephonically that his brother-in-law Ghazanfar Ali was murdered and his dead body was thrown in Nala Palku and they informed the complainant and the police about above mentioned fact. The story explained by the witness of wajtakkar does not advance the case of prosecution because no convincing or plausible reason for the visit to the house of his younger brother was offered by Akbar Ali (PW.6) and he simply stated in examination-in-chief that he along with his son went there to see his younger brother. On the other hand, Muhammad Akbar (PW.6) conceded during cross-examination that he did not produce any witness to support his version regarding his visit to Dalowali near Jinnah Model School Wali Gali. Further conceded that he did not give information to the complainant and Amjad PW about presence of appellant as he had no doubt upon him (appellant). Therefore, the evidence of wajtakkar furnished by Muhammad Akbar (PW.6) is of no avail to the prosecution.
Extrajudicial Confession:
So far as extrajudicial confession allegedly made by the appellant before Karamat Hussain (PW.5), Muhammad Akbar (PW.6) and Asghar Ali, complainant (PW.7) is concerned, they have stated in their examination-in-chief that on 17.09.2017 at evening time, they were sitting in the baithak of Karamat Hussain (PW.5) and were talking about the instant case. Meanwhile, the appellant along with an unknown person came there and he (appellant) fell into the feet of Karamat Hussain and asked for pardon for the murder of Ghazanfar Ali (deceased). The appellant further stated that he committed murder of deceased for money. The appellant also fell into the feet of Asghar Ali complainant and repeated the same request. He (appellant) stated that he is a cruel person and not able to get pardon. In the meantime. Karamat Ali went out of the baithak to the Courtyard of his house and the appellant fled away due to fear of police. The testimony of said PWs regarding extrajudicial confession allegedly made by the appellant is not reliable because the complainant was closely related to the deceased being his brother-in-law (behnoi) and PW.6 was brother of complainant and have stated before the learned trial Court that the appellant confessed his guilt about the commission of crime but they along with Karamat Hussain (PW.5) did not try to apprehend the appellant at the time of his extrajudicial confession, who was not armed with any firearm weapon. The appellant allegedly made extrajudicial confession before the above said PWs on 17.09.2017 whereas their statements under Section 161, Cr.P.C. as per saying of Muhammad Arif, S.I. (PW.10), were recorded on 18.09.2017 i.e. about one day after confession of the appellant. It is a settled law that credibility of a witness is looked with serious suspicion if his statement under Section 161, Cr.P.C. is recorded with delay without offering any plausible explanation. Reliance is placed on case law titled as “Muhammad Khan vs. Maula Bakhsh and another” (1998 SCMR 570). Furthermore, extrajudicial confession is always considered a weak type of evidence and it is procured at any time during the investigation when there is no direct evidence available to the prosecution. Moreover, the legal worth of the extra judicial confession too is almost equal to naught, keeping in view the natural course of events, human behaviours, conduct and probabilities, in ordinary course. Needless to remark that extra judicial confession has never been considered sufficient for recording conviction on a capital charge unless it is strongly corroborated by tangible evidence coming from unimpeachable source, therefore, in my view this piece of evidence is entirely insufficient to maintain conviction on such a charge, more so, when it is badly tainted one and appears to be the job of the Investigating Officer who normally indulge in such like police chicanery. Reliance is placed on case law titled as “Hamid Nadeem versus The State” (2011 SCMR 1233), “Imran alias Dully and another versus The State and others” (2015 SCMR 155), “Muhammad Nawaz and others versus The State and others” (2016 SCMR 267) and “Nasir Javaid and another vs The State” (2016 SCMR 1144). In the light of above discussion, I am of the view that the evidence of extrajudicial confession in the instant case is not worthy of reliance.
Recovery of brick and Rs. 800/-
The alleged recovery of brick (P.5) at the instance of the appellant is inconsequential for the reason that the same is an ordinary thing, easily available in rural areas. Likewise, the recovery of Rs. 800/- on the pointation of appellant is not helpful to the prosecution for the reason that the currency notes are in wide circulation in the market. Even there was no mention of currency notes in the FIR.
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, the instant appeal filed by Muhammad Usman alias Mashuri (appellant) is allowed, conviction and sentence awarded to the appellant vide judgment dated 08.02.2018 passed by the learned trial Court are set aside and he is acquitted of the charge levelled against him while extending him benefit of doubt. The appellant is confined 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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