PLJ 2024 Cr.C. (Note) 259
[Lahore High Court, Multan Bench]
Present: Sadaqat Ali Khan and Shehram Sarwar Ch., JJ.
versus
STATE--Respondent
Crl. A. No. 151-J & M.R. No. 14 of 2018, heard on 31.10.2022.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)/34--Qatl-e-amd--Conviction and sentence--Benefit of doubt--Ocular account--Chance witness--Testimony of--Motive behind occurrence--Suspicion on a woman that she had bad character--During cross examination that he did not record statement of any witness of vicinity that the appellants had suspicion regarding bad character of the deceased. Admittedly, the motive part of incident is based upon suspicion but the law is settled that suspicion howsoever grave or strong can never be a proper substitute for proof beyond reasonable doubt required in a criminal case--No independent witness qua motive was associated during the course of investigation or brought in the witness box at the time of trial--Prosecution has failed to substantiate alleged motive against the appellants--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 appellants beyond any shadow of doubt--Held: 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.
[Para 5, 8] C, D & E
Chance Witness--
----Testimony of--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 evidence and cannot be accepted without a pinch of salt. [Para 4] A
2015 SCMR 1142 & 2016 SCMR 2021.
Testimony of Chance Witnesses--
----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 place of occurrence at relevant time. [Para 4] B
Benefit of doubt--
----The prosecution remained failed to discharge its responsibility of proving the case against the appellants. 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. [Para 8] F
2009 SCMR 230, PLD 2021 SC 600.
Prince Rehan Iftikhar Sheikh, Advocate for Appellants.
Mr. Adnan Latif Sheikh, Deputy Prosecutor General for State.
Mehar Muhammad Ilyas Wasli and Mr. Nadir Sultan Murali, Advocates Complainant.
Date of hearing: 31.10.2022.
Judgment
Shehram Sarwar Ch., J.--Muhammad Amin and Naik Muhammad (appellants) were tried by the learned Sessions Judge, Vehari in case FIR No. 252 dated 17.05.2017, offence under Sections 302, 109 and 34, PPC registered at Police Station Luddan District Vehari for the murder of Mst. Nusrat Bibi (deceased) daughter of complainant. Vide judgment dated 31.01.2018 passed by the learned trial Court, the appellants have been convicted under Sections 302(b)/34, PPC and sentenced to death, with a further direction to pay Rs. 3,00,000/-(rupees three lakh only) each as compensation under Section 544-A, Cr.P.C. to the legal heirs of deceased and in default whereof, to further undergo simple imprisonment for six months each. Assailing the above conviction and sentence, the appellants have filed the appeal in hand whereas the learned trial Court has sent Murder Reference No. 14 of 2018 for confirmation or otherwise of the appellants’ 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.PA/1) registered on the statement (Ex.PA) of Ameer Ahmad, complainant (PW.7) is that about ten years ago, Mst. Nusrat Bibi daughter of complainant was married to Muhammad Amin (appellant) and four kids were born out of the said wedlock; out of whom two namely Muhammad Irfan aged about three years and Rani Bibi aged about one and a half years were alive while two had died. Mst. Nusrat Bibi was again pregnant of four months. About 5/6 days earlier, Muhammad Amin called the complainant and in presence of his brothers namely Naik Muhammad (appellant) and Muhammad Riaz complained about bad character of Mst. Nusrat Bibi. The complainant asked Muhammad Amin etc. that if it was so, not to murder his daughter rather advised to give her divorce. On 17.05.2017 at around 1.10 p.m. Mst. Nusrat Bibi made a phone call to the complainant on his Mobile No. 0304-7995015 from the mobile of her husband Muhammad Amin Bearing No. 0307-6558895 and told that Muhammad Amin etc. want to forcibly administer her some poisonous thing, giving her injection and also beating her. Having heard the phone call, the complainant along with Ghulam Yaseen and Muhammad Afzal reached the house of Muhammad Amin situated at Mauza Qadir Abad and saw that Muhammad Amin and Naik Muhammad had laid down Mst. Nusrat Bibi in the residential room. Naik Muhammad was catching hold of hand of Mst. Nusrat Bibi whereas Muhammad Amin was sitting on her belly and pressing her neck. On seeing the complainant party, the appellants decamped from the spot. The complainant party attended Mst. Nusrat Bibi, who had breathed her last on the spot. It was alleged in the FIR that the appellant committed this occurrence on the abetment of Muhammad Riaz. The motive behind the occurrence was that the appellants had suspicion that Mst. Nusrat Bibi (deceased) was a woman of bad character.
3. We have heard arguments of learned counsel for the parties as well as the learned Deputy Prosecutor General for the State at a considerable length and have also gone through the record very minutely.
4. The ocular account in this case has been furnished before the learned trial Court by Ameer Ahmad, complainant (PW.7) and Ghulam Yaseen (PW.8), who were closely related to the deceased being her father and paternal uncle respectively and were chance witnesses as they were neither residents of the place of occurrence nor have any place of business over there. The eye-witnesses were residents of Mauza Allah Abad and Mauza Saeed Wah whereas the occurrence took place in the area of Mauza Qadir Abad, which as stated by them during cross-examination, was situated at a distance of about 5/6 kilometers and 2½/3 kilometers from their residences. The reason assigned by both the PWs for their presence on the spot was that on the relevant day at 1.10 p.m. Mst. Nusrat Bibi made a call through cell phone of Muhammad Amin (appellant) to the complainant and informed him regarding maltreatment to her by the appellants and on hearing the same, the PWs along with Muhammad Afzal (given up PW) reached the spot. To substantiate this assertion of PWs, the call data record (Ex.PC) was obtained by the I.O. which does not show that any call was made from the mobile phone of appellant at 1.10 p.m. to the cell number of complainant rather a call was made at 12.40 p.m. Even no transcript of call was brought on record, which could show that what type of conversation was made between the caller and listener. It is noticeable that despite claimed presence of eye-witnesses at the scene of crime at relevant time, the said witnesses along with Muhammad Afzal (since given up) had not stopped or caught hold of the appellant who was not armed with any fire-arm to ward the said witnesses off or to keep them away. Even otherwise, the complainant admitted during cross-examination that they did not try to apprehend the appellants. Same was the stance of Ghulam Yaseen (PW.8), who further explained that the appellants took to heels from the door where they were standing. So far as detection of lorazepam in water extract of vomit of deceased is concermed, no solid evidence was brought on record that it was vomit of the deceased. In this regard, the cross-examination of Muhammad Amin Abid, S.I/I.O (PW.10) is very relevant, who stated that as the vomiting material was lying near the dead body, so he presumed it to be the vomit of deceased. The I.O. did not observe any vomit on the wearing apparels of deceased and none of the PWs told him that at what time the deceased vomited. Moreover, the I.O. did not enquire from the inmates of house that as to when Mst. Nusrat Bibi deceased vomited. 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. Under the circumstances, we are of the view that Ameer Ahmad, complainant (PW.7) and Ghulam Yaseen (PW.8) were not present on the spot and had not witnessed the occurrence.
5. The motive behind the occurrence as alleged in the FIR and brought before the learned trial Court was that the appellants had suspicion that Mst. Nusrat Bibi (deceased) was a woman of bad character. Muhammad Amin Abid, S.I/I.O. (PW.10) admitted during cross-examination that he did not record statement of any witness of vicinity that the appellants had suspicion regarding bad character of the deceased. Admittedly, the motive part of incident is based upon suspicion but the law is settled that suspicion howsoever grave or strong can never be a proper substitute for proof beyond reasonable doubt required in a criminal case. Reliance may be placed on case law titled as “Muhammad Jamshaid and another vs The State and others” (2016 SÇMR 1019) and “Muhammad Ashraf vs. The State” (2016 SCMR 1617). We have also noted that no independent witness qua motive was associated during the course of investigation or brought in the witness box at the time of trial. Therefore, we hold that prosecution has failed to substantiate alleged motive against the appellants.
6. As far as the alleged recovery of Q Mobile (P.9) at the instance of Muhammad Amin (appellant) is concerned, the same is not much helpful for the prosecution for the reasons that the mobile is an ordinary thing, easily available in the market. No recovery was effected at the instance of Naik Muhammad (appellant).
7. So far as the defence pleas taken by the appellants in their statements under Section 342, Code of Criminal Procedure are concerned, since the prosecution evidence is doubtful in nature, therefore, there is no need to discuss the same which are exculpatory in nature.
8. 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 appellants 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 appellants. 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).
9. For the foregoing reasons, Criminal Appeal No. 151-J of 2018 filed by Muhammad Amin Naik Muhammad (appellants) is allowed, conviction and sentence awarded to the appellants vide judgment dated 31.01.2018 passed by the learned trial Court are set aside and they are acquitted of the charge levelled against them while extending them benefit of doubt. The appellants are in jail. They shall be released forthwith if not required to be detained in any other case.
10. Murder Reference No. 14 of 2018 is answered in the NEGATIVE and the sentence of death awarded to Muhammad Amin and Naik Muhammad (convicts) is NOT CONFIRMED.
(A.A.K.) Appeal allowed
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