PLJ 2024 Cr.C. (Note) 198
[Lahore High Court, Lahore]
Present: Shehram Sarwar Ch. and Muhammad Waheed Khan, JJ.
versus
STATE and another--Respondents
Crl. A. No. 78906-J & M.R. No. 389 of 2019, heard on 15.1.2024.
Inordinate Delay--
----Inordinate delay in setting machinery of law in motion speaks volumes against veracity of prosecution version. [Para 4] A
2019 SCMR 274.
Testimony of Chance Witness--
----The 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 evidence and cannot be accepted without a pinch of salt. [Para 5] B
2015 SCMR 1142, 2016 SCMR 2021 and PLD 2021 SC 600.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b) & 374--Qatl-e-amd--Conviction and sentence--Challenge to--Benefit of doubt--Chance witness--Testimony of--Motive, previous litigation--Testimony of chance witnesses require cautious scrutiny and was not to be accepted unless they give satisfactory explanation of presence at or near place of occurrence at relevant time--Held: It is well settled by now that when a witness on improves his statement to strengthen prosecution case and moment it is concluded that improvement was made deliberately and with malafide intention testimony of such witness does not remain reliable--Further held: It is well established by now that motive is a double edged weapon because if it could be a reason for commission of crime, then at same time, it could prompt complainant’s side for false implication of an accused, therefore, motive alone can neither prove nor disprove a crime and same has to be weighed with other attending circumstances of case--No independent witness qua motive was produced during course of investigation or brought in witness box at time of trial--The prosecution has failed to associate any independent witness of locality as is evident from recovery memo which bears signatures of police officials as recovery witnesses--Thus, mandatory provisions of Section 103, Cr.P.C. had flagrantly been violated in that regard--The 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 5, 6, 7 & 9] C, D, E, F & G
1993 SCMR 550, 2010 SCMR 385 and 2017 SCMR 898.
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 9] H
2009 SCMR 230.
Mr. Kamran Javed Malik, Advocate for Appellant.
Mr. Humayoun Aslam, Deputy Prosecutor General for State.
Nemo for Complainant.
Date of hearing: 15.1.2024.
Judgment
Shehram Sarwar Ch., J.--Abdul Qayyum (appellant) was tried by learned Addl. Sessions Judge, Sialkot in case FIR No. 359 dated 29.04.2019 offence under Sections 302, 109 and 34, PPC registered at Police Station Muradpur District Sialkot for the murder of Shazia Bibi (deceased), daughter of the complainant. Vide judgment dated 20.11.2019 passed by learned trial Court, the appellant has been convicted under Section 302(b), PPC and sentenced to death with a further direction to pay Rs. 5,00,000/- (rupees five lakh only) as compensation under Section 544-A, Cr.P.C. to the legal heirs of the deceased and in default whereof, to further undergo six months simple imprisonment. Assailing the above conviction and sentence, the appellant has filed the appeal in hand whereas the learned trial Court has sent Murder Reference No. 389 of 2019 for confirmation or otherwise of the appellant’s sentence of death, as required under Section 374 of the Code of Criminal Procedure. Since both the matters have arisen out of the same judgment, therefore, the same are being decided together through this single judgment.
It is pertinent to mention here that co-accused of the appellant namely Qaiser Mehmood being juvenile was tried separately by learned trial Court and vide judgment dated 20.11.2019 he was acquitted of the charge by extending him benefit of doubt and no appeal against his acquittal was filed either by the State or the complainant as conceded by learned Law Officer.
2. Prosecution story, as set out in the FIR (Ex.PE) registered on the written application (Ex.PA) of Safia Bibi, Complainant (PW.1) is that on 29.04.2019 at around 10:00 am. She along with her daughter namely Shazia Bibi was returning to her house on the rickshaw after attending the Court. When they reached near Bagh Lemonwala Muradpur, one rickshaw came there in which Abdul Qayyum (appellant) armed with .30 bore pistol and Qaisar were boarded. On seeing the complainant party, the appellant made straight firing with 30 bore pistol at the complainant and Shazia Bibi. Due to firing Shazia Bibi got injured severely as the fire shots hit on her belly and right arm whereas the complainant luckily remained safe. Thereafter, Shazia Bibi was taken to the hospital in injured condition. It was alleged that the accused persons in consultation with Muhammad Dilawar and Muhammad Khawar committed this incident as they were seen by the complainant party in the katchery. Subsequently, Shazia Bibi died on 30.04.2019 and offence under Section 302, PPC was added.
3. We have heard learned counsel for the appellant as well as the learned Deputy Prosecutor General for the State and gone through the record with their able assistance.
4. This tragic incident, wherein Shazia Bibi (deceased) daughter of complainant lost her life, as per prosecution, took place on 29.04.2019 at about 10.00 a.m. in the area of Lemonwala Bagh Muradpur situated within the territorial jurisdiction of Police Station Muradpur District Sialkot. The distance between the police station and the place of occurrence was about two kilometers. The matter was reported to the police through the written application (Ex.PA) of Safia Bibi, complainant (PW.1) on the same day and formal FIR (Ex.PE) was got registered at 01:00 p.m. There is a delay of three hours in reporting the crime to the police without any plausible explanation. It is also worth mentioning here that while appearing before the learned trial Court, Safia Bibi, complainant (PW.1) did not utter even a single word about the above said delay. Therefore, we 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).
5. The ocular account in this case has been furnished before the learned trial Court by two eye-witnesses namely Safia Bibi, complainant (PW.1) and Muhammad Saleem (PW.2), who were closely related to the deceased being her mother and maternal uncle respectively. We have observed that both the witnesses of ocular account were neither residents of the place of occurrence nor have any place of business over there and as such, they were chance witnesses. They were residents of Mohallah Ismailabad Post Office Pakka Garha Sialkot whereas the occurrence took place near Lemonwala Bagh Muradpur. The reason assigned by the eye-witnesses for their presence on the spot was that the complainant (PW.1) along with Shazia Bibi (deceased) was going back to their house on rickshaw after attending the Court proceedings whereas Muhammad Saleem (PW.2) and Muhammad Rafique (given up PW) were following them on the motorcycle. This very reason offered by the eye-witnesses seems to be dubious because they remained fail to explain any relevance with the Court proceedings allegedly attended by them on the day of occurrence. It has been brought on record during cross-examination conducted on both the PWs that on the fateful day i.e. 29.04.2019, one Shafique appeared in the Court along with his sister i.e. Shazia Bibi (deceased) but he was not cited as a witness in this case. Even otherwise, the names of Muhammad Saleem (PW.2) and Muhammad Rafique (given up PW) were not mentioned in the application (Ex.PA) of the Complainant (PW.1) on the basis of which formal FIR (Ex.PE) was registered. Moreover, it was claimed by both the PWs that they shifted the deceased in injured condition to hospital but the MLC of Shazia Bibi (then injured) shows that she was brought by the neighbourers. No convincing or plausible reason was assigned by them for their presence at the place of occurrence. Before the learned trial Court, the eye-witnesses 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 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). Furthermore, in the case of “Naveed Asghar and 2 others vs. The State” (PLD 2021 SC 600), the apex Court held that testimony of chance witnesses require cautious scrutiny and was not to be accepted unless they give satisfactory explanation of presence at or near the place of occurrence at the relevant time. There is another aspect of the case. In the FIR as well as before learned trial Court, it was case of the prosecution that the appellant made firing with his pistol at Shazia Bibi (deceased), out of which two fire-shots were hit on her belly and right arm whereas Dr. Aqsa Ijaz (PW.11), who conducted medical examination of Shazia Bibi (the then injured), noted blackening around Injury No. 1 of the deceased but in the scaled site plan (Ex.PO) prepared by Tahir Tasleem, Draftsman (PW.10) on the pointation of the PWs, the distance between the deceased and the assailant was shown as forty four feet and the blackening from such a long range is not possible. Moreover, the deceased received firearm injury on 29.04.2019, who died on 30.04.2019 but her statement/dying declaration was not recorded by the police. We have also noted that the complainant while appearing before learned trial Court in order to strengthen the prosecution case made dishonest improvements and she was confronted with her previous statement and improvements were brought record. It is well settled by now that when a witness on improves his statement to strengthen the prosecution case and the moment it is concluded that the improvement was made deliberately and with malafide intention the testimony of such witness does not remain reliable. While holding so, we are fortified by the dictum laid down by the Hon’ble Supreme Court of Pakistan in the cases reported as “Muhammad Rafique and others versus The State and others” (2010 SCMR 385) and “Syed Saeed Muhammad Shah and another versus The State” (1993 SCMR 550). Under the circumstances, we are of the view that Safia Bibi, complainant (PW.1) and Muhammad Saleem (PW.2) were not present on the spot and had not witnessed the occurrence.
6. The motive behind the occurrence as stated before the learned trial Court was previous litigation. The complainant stated in her cross-examination that second husband of Shazia Bibi (deceased) namely Younis was murdered and a case FIR No. 48 dated 19.01.2018 was registered at the instance of the appellant. She conceded that during investigation the deceased and others were nominated in the said case. Previous enmity inter-se the parties is an admitted fact as detailed by the complainant during cross examination. It is well established by now that motive is a double edged weapon because if it could be a reason for commission of the crime, then at the same time, it could prompt the complainant’s side for false implication of an accused, therefore, the motive alone can neither prove nor disprove a crime and the same has to be weighed with the other attending circumstances of the case. Even otherwise, no independent witness qua motive was produced during the course of investigation or brought in the witness box at the time of trial. Therefore, in our view, the prosecution has not been able to substantiate the alleged motive behind the occurrence.
7. The recovery of .30 bore pistol (P.5) at the instance of the appellant which was taken into possession vide recovery memo. (Ex.PK) is concerned, the same is inconsequential for the reason that the same was got recovered after digging the soil near the western wall of graveyard Mughalpura Muradpur, which is an open place accessible to everyone. Moreover, the prosecution has failed to associate any independent witness of the locality as is evident from the recovery memo. (Ex.PK), which bears the signatures of police officials as recovery witnesses. Thus, the mandatory provisions of Section 103, Cr.P.C. had flagrantly been violated in that regard. Reliance may be placed on case law titled as “Muhammad Ismail and others vs. The State” (2017 SCMR 898).
8. 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.
9. 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 this regard, reliance may be placed on the case law reported as “Muhammad Akram versus The State” (2009 SCMR 230).
10. For the foregoing reasons, Criminal Appeal No. 78906-J of 2019 filed by Abdul Qayyum (appellant) is allowed, conviction and sentence awarded to the appellant vide judgment dated 20.11.2019 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 in jail. He shall be released forthwith if not required to be detained in any other case.
11. Murder Reference No. 389 of 2019 is answered in NEGATIVE and the sentence of death awarded to Abdul Qayyum (convict) is NOT CONFIRMED.
(A.A.K.) Appeal allowed
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