PLJ 2024 Cr.C. (Note) 248
[Lahore High Court, Rawalpindi Bench]
Present: Sadaqat Ali Khan and Shehram Sarwar Ch., JJ.
versus
STATE--Respondent
Crl. A. No. 615-J & M.R. No. 47 of 2018, heard on 31.3.2021.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b), 34 & 364-A--Qatl-e-amd--Conviction and sentence--Challenge to--Medical evidence--Benefit of doubt--The cell phone call data collected in this case is of no help for prosecution because no competent witness was produced at trial, who provided call data--In FIR as well as before learned trial Court it was case of complainant that after eid, proclamation was found to be pasted on her previous--Residence i.e. Street No. 5, Farooq-e-Azam Road wherein it was mentioned that contact snould be made on mobile No. 0302-5302230 for “M” but said chit/proclamation was not taken into possession by ASI/IO (PW.5) during trial--Moreover, no voice record transcript has been brought on record--The mobile No. 0302-5302230 mentioned in FIR is not belonged to appellant rather same was registered in name of one “K”, who was discharged from this case during course of investigation--In this view of matter, this piece of evidence is absolutely inconclusive and of no benefit to prosecution nor it connects accused with crime in any manner-- 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 culprit implicated in this case--Held: 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 7, 9 & 11] B, C & E
2016 SCMR 274, 2016 SCMR 1605 and 2009 SCMR 230.
Inordinate Delay--
----Inordinate delay in setting machinery of law in motion speaks volumes against veracity of prosecution version. [Para 5] A
Burden on prosecution to prove case--
----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. [Para 11] D
2019 SCMR 230.
Mr. Qaiser Mushtaq, Advocate for Appellant.
Mr. Naveed Ahmad Warraich, Deputy District Public Prosecutor for State.
Syed Ghulam Mustafa, Advocate for Complainant.
Date of hearing: 31.3.2021.
Judgment
Shehram Sarwar Ch. J.--Wahid Samar Abbasi (appellant) was tried by the learned Addl. Sessions Judge, Rawalpindi in case FIR No. 1255 dated 26.10.2014, offence under Sections 302, 363, 201 and 34, PPC, registered at Police Station Sadiqabad District Rawapindi for kidnapping and murder of Muhammad Shahbaz (deceased) son of complainant. Vide judament dated 30.04.2018 passed by the learned trial Court, the appellant has been convicted and sentenced as under:
“... therefore, normal penalty of death as Ta’zir for the commission of offence of Qatl-i-Amd punishable u/S. 302(b), PPC read with Section 34, PPC is awarded to convict Wahid Samar Abbasi for the murder of deceased namely Muhammad Shahbaz. Convict shall be hanged by neck till he is dead, subject to the confirmation by Hon’ble Lahore High Court. Convict is further directed to pay Rs. 100,000/ as compensation to the legal heirs of deceased under Section 544-A of, Cr.P.C. The convict is further sentenced with life imprisonment for commission of offence of kidnapping of the deceased punishable u/S. 364-A, PPC and also sentenced with seven years R.I. with fine of Rs. 20,000/- for the offence of disappearance of evidence punishable u/S. 201, PPC and in default of payment of compensation and fine, convict shall undergo simple imprisonment for a period of six months. The amount of compensation will also be recoverable as arrears of land revenue. The benefit u/S. 382-B, Cr.P.C. is extended in favour of the convict and all the sentences shall run concurrently ....”
Assailing the above convictions and sentences, the appellant has filed the appeal in hand whereas the learned trial Court has sent Murder Reference No. 47 of 2018 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.PD/1) registered on the written application (Ex.PD) of Mst. Sumaira Khanum, complainant (PW.8) is that about seventeen years ago, the complainant was married to Muhammad Asif and three sons were born out of the said wedlock. Two and a half years back, the complainant had taken divorce from her husband due to differences between them. On 20.08.2014 at around 6.00 p.m. younger son of complainant namely Muhammad Shahbaz aged about eleven years left the house and did not return. The complainant thought that he might have gone to the house of his father but on contact with Muhammad Asif, it transpired that he had not visited him. The complainant herself kept on searching her son in the houses of relatives and his friends but he remained untraced. After eid, a proclamation was found to be pasted on her previous residence i.e. Street No. 5, Farooq-e-Azam Road wherein it was mentioned that contact should be made on mobile No. 0302-5302230 for Muhammad Shahbaz. The complainant made numerous calls but nobody attended the same and she was having firm belief that the person having above referred number had kidnapped her son.
3. On the basis of CDR, the appellant and his co-accused namely Arslan Riaz and Muhammad Naveed were arrested, who got recovered dead body of Muhammad Shahbaz (deceased). After completion of investigation, report under Section 173, Cr.P.C. was submitted and the appellant and his co-accused were summoned to face the trial. Arslan Riaz and Muhammad Naveed, co-accused of the appellant were declared juvenile and tried separately.
4. We have heard learned counsel for the parties as well as learned Deputy District Public Prosecutor for the State and gone through the record with their able assistance.
5. As per FIR (Exh.PD/1), the occurrence qua missing of Muhammad Shahbaz (deceased) son of complainant allegedly took place on 20.08.2014 whereas the matter was reported to the police 26.10.2014. The distance between police station and the place of occurrence is 1½ kilometers. There is a delay of about two months and six days 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 both the material prosecution witnesses namely Sumaira Simab, complainant (PW.8) and Muhammad Asif Hussain (PW.9) 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).
6. Admittedly, no one had seen the appellant while killing Muhammad Shahbaz (deceased) after kidnapping him. The whole prosecution case is only based on the confession of Wahid Samar Abbasi (appellant) and his co-accused namely Arslan Riaz allegedly made by them before the police and the complainant party at the time of their arrest. Undeniably, under Article 39 of Qanun-e-Shahadat, Order 1984, confession by accused of his guilt under custody of police is inadmissible in evidence. Moreover, the appellant and his co-accused were not produced before the learned Area Magistrate soon after their arrest for recording their judicial confession. Furthermore, the role played by the appellant and his co-accused in the incident in issue had not been disclosed or alleged by the prosecution through independent evidence as to under what circumstances the deceased had been done to death. So far as the recovery of dead-body of Muhammad Shahbaz (deceased) on pointing out of Wahid Samar Abbasi (appellant) and his co-accused namely Arslan Riaz is concerned, the same is not helpful for the prosecution because it was recovered on joint disclosure/pointation of Wahid Samar Abbasi (appellant) and his co-accused namely Arslan Riaz. Moreover, the dead-body of Muhammad Shahbaz (deceased) was recovered from an open plot which was not in exclusive ownership/possession of the appellant and his co-accused. Reliance is placed on case law titled as “The State and others vs. Muhammad Kaleem Bhatti and others” (2019 SCMR 1321).
7. The cell phone call data collected in this case is of no help for the prosecution because no competent witness was produced at the trial, who provided the call data. In the FIR as well as before the learned trial Court it was the case of complainant that after eid, a proclamation was found to be pasted on her previous. Residence i.e. Street No. 5, Farooq-e-Azam Road wherein it was mentioned that contact snould be made on mobile No. 0302-5302230 for Muhammad Shahbaz but the said chit/proclamation was not taken into possession by Atif Fida ASI/IO (PW.5) during the trial. Moreover, no voice record transcript has been brought on record. The mobile No. 0302-5302230 mentioned in the FIR is not belonged to the appellant rather the same was registered in the name of one Kashif, who was discharged from this case during the course of investigation. In this view of the matter, this piece of evidence is absolutely inconclusive and of no benefit to the prosecution nor it connects the accused with the crime in any manner. Reliance is placed on case law titled as “Azeem Khan and another vs Mujahid Khan and others” (2016 SCMR 274).
8. So far as the alleged recoveries of hand kerchief and rope at the instance of Wahid Samar Abbasi (appellant) are concerned the same are immaterial because these were ordinary things easily available in the market.
9. 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 culprit implicated in this case. Reliance is placed on case law titled as “Muhammad Saleem vs. Shabbir Ahmad and others” (2016 SCMR 1605).
10. 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.
11. 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. Reliance is placed on case law titled as “Muhammad Akram versus The State” (2009 SCMR 230).
12. For the foregoing reasons, Criminal Appeal No. 615 of 2018 filed by the appellant is allowed, conviction and sentence awarded to him vide judgment dated 30.04.2018 passed by the learned Addl. Sessions Judge, Rawalpindi are set aside and the appellant is acquitted of the charges levelled, against him while extending him benefit of doubt. Wahid Samar Abbasi appellant is in jail. He shall be released forthwith if not required to be detained in any other case.
13. Murder Reference Nd.47 of 2018 is answered in NEGATIVE and the sentence of death awarded to Wahid Samar Abbasi (convict) is NOT CONFIRMED.
(A.A.K.) Appeal allowed
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