PLJ 2024 Cr.C. (Note) 199
[Lahore High Court, Lahore]
Present: Anwaarul Haq Pannun, J.
ANSAR ALI etc.--Appellants
versus
STATE, etc.--Respondents
Crl. A. Nos. 16326, 17012 & Crl. Rev. No. 17574 of 2019,
heard on 6.5.2024.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b), 109 & 34--Qatl-e-amd--Conviction and sentence--Challenge to--Appreciation of circumstantial evidence--Extra-judicial confession--Medical evidence--Recovery of weapon--Benefit of doubt--Alleged, last seen evidence furnished by PW-13 and PW-14 does not appear to be trust worthy and confidence inspiring and no reliance can be placed for recording conviction on it--Even otherwise, as per settled law, the evidence of last seen is always regarded as a weak type of evidence, which is not sufficient to award conviction--Even last seen is not corroborated with any unimpeachable evidence with any other piece of evidence--In absence of such corroboration, it is not safe to award conviction solely on basis of last seen evidence--Medical evidence alone cannot corroborate, as injury cannot speak of its author and it does not establish identity of accused--Moreover, postmortem report confirms death of deceased and report of Chemical Examiner/ Forensic Science Agency, verify presence or otherwise of human blood on weapon of offence but cannot pinpoint person who had committed occurrence--Even, recovery is just a corroboratory piece of evidence and when other incriminating prosecution’s evidence has been disbelieved/discarded, same cannot be relied upon in case of capital punishment--Similarly, motive behind occurrence, as alleged by prosecution has already been disbelieved by learned trial Court, while assigning cogent and valid reasons in impugned judgment, which are upheld--The prosecution has failed in proving guilt of appellants through cogent, confidence inspiring, trust worthy and unimpeachable evidence--The basic principle of law is that conviction must be sed on evidence beyond any shadow of doubt because damage resulting from erroneous sentence is irreversible, therefore, while extending benefit of doubt to appellants, both appeals are allowed.
[Para 6, 8, 9, 10 & 11] A, C, D, E & F
2003 SCMR 1466 and 2007 SCMR 525.
Extra-judicial Confession--
----Extra judicial confession is also a weak type of evidence--Such like confession can easily be procured whenever direct evidence of crime is not available--It is also not safe to rely upon such evidence for recording conviction. [Para 7] B
2006 SCMR 231 and 1996 SCMR 188.
M/s. Dost Muhammad Kahoot and Aasim Sohaib, Advocates along with Appellants.
Mr. Sirbuland Khan, Assistant Attorney General & Ms. Rahila Shahid, Deputy District Public Prosecutor for State.
Nemo for Complainant.
Date of hearing: 6.5.2024.
Judgment
This single judgment shall decide the fate of titled criminal appeals filed under Section 410, Cr.P.C. by the convicts Ansar Ali and Muhammad Ashraf and criminal revision petition by the complainant/ petitioner Muhammad Ashraf, filed under Sections 435/439, Cr.P.C., seeking enhancement of the sentence awarded through the judgment dated 22.02.2019 to the appellants, impugned herein by both the parties, passed on conclusion of a trial in a case, registered vide case/F.I.R. No. 218, dated 18.08.2016, offence under Sections 302/109/34, PPC at Police Station Satghara, District Okara, by the Court of learned Addl. Sessions Judge, Okara, whereby the co-accused Mst. Asia Bibi, had been acquitted but the appellants/respondents Ansar Ali and Muhammad Ashraf have been convicted under Section 302(b), PPC read with Section 34, PPC and sentenced to life imprisonment as Ta’zir with a direction to pay compensation of
Rs. 1,00,000/-each under Section 544-A, Cr.P.C. to the legal heirs of the deceased Ali Azmat and in default thereof to further undergo simple imprisonment for a period of six months, the benefit of Section 382-B Cr.P.C has however been extended.
3. Precisely, the prosecution’s case, set out in the FIR (Exh.PA/1) registered on a complaint in writing (Exh:PA) by Mst. Asia Bibi (Since acquitted co-accused) is that on 18.08.2016, at about 9.15 p.m. her son Ali Azmat asked her by making a telephone call to open the door of home despite lapse of some time, her son did not come back, consequently, she became worried. She along with Ansar Ali (accused-appellant) and Ali Sher were in search of her son and as they reached nearby sugar cane crop of one Sardar Parvez, they found shoe of her son lying there, upon moving forward, they found the dead body of Ali Azmat in sugarcane crop, having wound on his temple near the left ear and abrasion on neck, blood was oozing from his nose. Upon raising hue and cry by them, many people gathered there. During investigation, Abdul Sattar (PW-3) submitted a written application (Exh:PB) while introducing a new story by nominating the appellants and Mst. Asia Bibi (since acquitted) as accused, alleging that on 25.08.2016 at 4:00 p.m., he alongwith Iqbal and Ramzan PWs was sitting in the Courtyard of his house, when Ansar and Ashraf accused came there; accused-appellant Ansar disclosed while making an extra judicial confession that he had illicit relations with Asia Bibi; when this fact had come to the knowledge of Ali Azmat, he and Asia Bibi became worried, so, he planned to remove Ali Azmat from their way and joined Muhammad Ashraf accused in this plan; that on 17.08.2016, when Ali Azmat was coming from his hotel, as planned, he took Ali Azmat along with him; Ashraf accused also met him on the way; they led Ali Azmat to sugarcane crop of Sardar Parvez, where they had already placed hatchet and rope; he alarmed that he will teach a lesson to Ali Azmat for forbidding Asia Bibi from having her illicit relationship with him and inflicted multiple blows with blunt side of hatchet, hitting on temple, right eye and ankle of right arm of Ali Azmat, who fell down, then, Ashraf accused caught hold the legs of Ali Azmat and Ansar Ali strangulated Ali Azmat with rope. Ali Azmat succumbed to his injuries at the spot. They ran away. Asia Bibi lodged FIR by showing her as a witness; Naseer Ahmad and Manzoor had also seen him, Ashraf and the deceased while going towards sugarcane crop; they also took Q-Mobile phone of Ali Azmat. They requested for pardon.
3. After usual investigation, submission of challan and completion of ancillary proceedings under Chapter XXII-A of Cr. P.C, since the accused while denying the charge, claimed trial, the prosecution produced as many as 15 prosecution witnesses and brought on record the documents Exh:PA to Exh: PU to prove the charge against them. After closure of prosecution evidence, the convict/ appellants along with his co-accused were examined under Section 342, Cr.P.C. wherein they pleaded their innocence. Neither the accused-appellants opted to appear as their own witnesses under Section 340(2), Cr.P.C. nor to produce evidence in their defence. On conclusion of trial, learned trial Judge as aforesaid convicted and sentenced the appellants and acquitted the co-accused Mst. Asia Bibi through the impugned judgment as alluded to in earlier para No. 1 of the judgment.
4. Arguments heard and record of the case has been perused.
5. The prosecution’s case rests upon circumstantial evidence. There is no dearth of case law, offering guidance, for appraisal of circumstantial evidence in a criminal case, yet in the case reported as “Naveed Asghar and 2 others versus The State”( PLD 2021 Supreme Court 600), the august Supreme Court of Pakistan has standardized the guidelines for evaluation of circumstantial evidence which for ready reference is reproduced as under:
14. The settled approach to deal with the question as to sufficiency of circumstantial evidence for conviction of the accused person is this: If, on the facts and circumstances proved, no hypothesis consistent with the innocence of the accused person can be suggested, the case is fit for conviction of the accused person on such conclusion: however, if such facts and circumstances can be reconciled with any reasonable hypothesis compatible with the innocence of the appellant, the case is to be treated one of insufficient evidence, resulting in acquittal of the accused person. Circumstantial evidence, in a murder case, should be like a well-knit chain, one end of which touches the dead body of the deceased and the other the neck of the accused. No link in chain of the circumstances should be broken and the circumstances should be such as cannot be explained away on any reasonable hypothesis other than guilt of accused person. Chain of such facts and circumstances has to be completed to establish guilt of the accused person beyond reasonable doubt and to make the plea of his being innocent incompatible with the weight of evidence against him. Any link missing from the chain breaks the whole chain and renders the same unreliable; in that event, conviction cannot be safely recorded, especially on a capital charge. Therefore, if the circumstantial evidence is found not of the said standard and quality, it will be highly unsafe to rely upon the same for conviction; rather, not to rely upon such evidence will a better and a safer course.”
6. In the light of afore quoted principles for appreciation of circumstantial evidence, the evidence is scanned with able assistance of learned counsel for the parties. The occurrence in this case as described in Paragraph No. 2 of the judgment was unwitnessed. Firstly, the machinery of law was set into motion through the complaint in writing (Exh:PA) by Mst. Asia Bibi (since acquitted co-accused) that some unknown accused had committed murder of her son Ali Azmat. Thereafter, Abdul Sattar put forth his version, as stated in preceding Paragraph No. 2 against the appellants and acquitted co-accused Mst. Asia Bibi (Exh:PB) on the strength of extra judicial confession, allegedly made by the accused-appellant Ansar Ali before him and Muhammad Ramzan (PW-4) and Muhammad Iqbal (PW-5). Naseer Ahmad (PW-13) and Manzoor Ahmad (PW-14) had furnished the last seen evidence that on 17.08.2016, at about 9.30 p.m. they saw the appellants while taking Ali Azmat deceased from Jaboka Bazar towards the sugarcane crop of Sardar Parvez. Naseer Ahmad (PW-13) is cousin whereas Manzoor Ahmad (PW-14) is uncle of Abdul Sattar (PW-3). It is strange to note that despite their close relationship with PW-3, they had not timely informed the complainant (PW-3) about the aforesaid factum of last seen. Even the complainant Abdul Sattar (PW-3) moved the application for registration of case (Exh:PB) on 26.08.2016, after unexplained delay of 08-days of lodging the F.I.R by Mst. Asia Bibi (since acquitted co-accused). PW-13 stated during cross-examination stated that he got recorded his statement before the police after 4/5 days of the occurrence, [the learned defence counsel requested for supply of said statement for the purpose of cross-examination but the learned ADPP after perusing the police file stated that no such statement of said PW was recorded by the I.O. 4/5 days after the occurrence, so it cannot be provided]. Manzoor Ahmad
(PW-14) stated during cross-examination that he was informed by Abdul Sattar telephonically about the death of Ali Azmat deceased at about 11.45 p.m., he along with Naseer Ahmad, Iqbal, Ramzan, Abdul Sattar and other relatives reached at the place of occurrence at about 12.00 a.m. (night), police was already present there. The police did not record their statements. Muhammad Zubair retired SI/I.O. (PW-10) stated that on the same day (08.09.2016), Manzoor Ahmad, Naseer Ahmad PWs of Exh:PB of Abdul Sattar joined the investigation and made statements u/S. 161, Cr.P.C. about lastly seeing Ali Azmat deceased along with Ansar Ali and Muhammad Ashraf accused. Strangely, he however did not see Abdul Sattar, Iqbal, Muhammad Ramzan, Naseer Ahmad and Manzoor Ahmad at his first visit at the place of occurrence. No application was submitted by Abdul Sattar PW for registration of case and Iqbal, Ramzan, Naseer and Manzoor Ahmad also did not record their statements prior to 27.08.2016. For the first time, on 08.09.2016, they appeared before him. Therefore, the alleged, last seen evidence furnished by PW-13 and PW-14 does not appear to be trust worthy and confidence inspiring and no reliance can be placed for recording conviction on it. Even otherwise, as per settled law, the evidence of last seen is always regarded as a weak type of evidence, which is not sufficient to award conviction. Even the last seen is not corroborated with any unimpeachable evidence with any other piece of evidence. In the absence of such corroboration, it is not safe to award the conviction solely on the basis of last seen evidence. It has also been held in case reported as “Mst. Shamim and 2 others vs. The State and another” (2003 SCMR 1466) that:
“Prosecution story being foundation on which edifice of the prosecution case was raised occupied a pivotal position in a case, it should, therefore, stand to reason and must be natural, convincing and free from any inherent improbability and it was neither safe to believe a prosecution story which did not meet said requirements nor a prosecution case based on improbable prosecution story could sustain conviction.”
A reference can be made to the case of “Altaf Hussain vs. Fakhar Hussain and another” (2008 SCMR 1103), wherein the august Supreme Court of Pakistan observed as under:
“It is settled principle of law that the last seen evidence is a weakest type of evidence unless corroborated with some other piece of evidence which is conspicuously missing in this case.”
7. The other piece of evidence, the prosecution has brought on record consists of extra judicial confession. Muhammad Ramzan
(PW-4) and Muhammad Iqbal (PW-5) reiterated about making of extra judicial confession by accused Ansar Ali as alluded to in Paragraph
No. 2 of the judgment. Admittedly, Muhammad Ramzan (PW-4) is uncle, whereas Muhammad Iqbal (PW-5) is brother of Abdul Sattar (PW-3). Astonishingly despite their close relationship inter-se, they did not make any effort to overpower the accused to produce them before the police. They even raised no hue and cry and allowed them to go escort free. Hence, the conduct of these PWs being unnatural renders their evidence worth of no reliance. Extra judicial confession is also a weak type of evidence. Such like confession can easily be procured whenever direct evidence of crime is not available. It is also not safe to rely upon such evidence for recording conviction. Reliance is placed upon case titled “Sajid Mumtaz and others versus Basharat and others” (2006 SCMR 231), “Sarfraz Khan vs. State and 2 others” (1996 SCMR 188), “Nizam-ud-Din versus The State” (2010 PCr.LJ 1730) and “Imran alias Dully and another versus The State and others” (2015 SCMR 155).
8. Now coming to the medical evidence furnished by Asif Ali HR & Legal Officer DHQ Hospital Okara (PW-9) on behalf of Dr. Zain-ul-Abdeen who conducted autopsy, suffice it to observe that it may confirm the ocular account with regard to the receipt of injury and kind of weapon, but it cannot connect the accused with the commission of crime. It has been held by apex Court in case reported as “Israr Ali vs. The State” (2007 SCMR 525) that medical evidence alone cannot corroborate, as the injury cannot speak of its author and it does not establish the identity of the accused. Moreover, the postmortem report confirms the death of the deceased and report of Chemical Examiner/ Forensic Science Agency, verify the presence or otherwise of human blood on the weapon of offence but cannot pinpoint the person who had committed the occurrence.
9. Now coming to the recovery of weapon of offence i.e. hatchet (P-1) allegedly recovered on pointing out of the accused-appellant Ansar Ali, seized vide recovery memo Exh:PG. Although the report of PFSA, Lahore (Exh:PT) is positive as the item 2.1 (Swab taken from the blade of Kulhari) contained human blood, but contrarily, the alleged recovery witness Muhammad Hussain 673/HC (PW-7) during the course of cross-examination admitted it correct that the alleged hatchet was neither blood stained nor had mud on it. Even otherwise, the report of Chemical Examiner/ Forensic Science Agency, verify the presence or otherwise of human blood on the weapon of offence but cannot pinpoint the person who had committed the occurrence. So far as the remaining recoveries mobile phone, Safa (handkerchief) are concerned, these are common in nature, which can easily be procured from the market and this fact is also admitted by the recovery witnesses (PW-7, PW-8 and PW-10) that the alleged Saafa is of general kind and is easily available in the Bazaar and Q-mobile can easily be purchased from the market. I.O (PW-10) also did not join the other inmates or the neighbourers during recovery proceedings thus clear violation of provision of Section 103, Cr.P.C. Even, the recovery is just a corroboratory piece of evidence and when other incriminating prosecution’s evidence has been disbelieved/ discarded, the same cannot be relied upon in case of capital punishment.
10. Similarly, the motive behind the occurrence, as alleged by the prosecution has already been disbelieved by the learned trial Court, while assigning cogent and valid reasons in the impugned judgment, which are upheld.
11. For what has been discussed above, it is held that the prosecution has failed in proving the guilt of the appellants through cogent, confidence inspiring, trust worthy and unimpeachable evidence. The basic principle of law is that conviction must be based on evidence beyond any shadow of doubt because the damage resulting from erroneous sentence is irreversible, therefore, while extending the benefit of doubt to the appellants, both appeals (Crl. Appeal No. 16326 of 2019 and Crl. Appeal No. 17012 of 2019) are allowed. The convictions and sentence of the appellants Ansar Ali and Muhammad Ashraf, recorded through the impugned judgment dated 22.02.2019 by the learned Trial Court are set-aside and they are acquitted of the charges levelled against them. They are on bail. Their sureties are discharged from the liabilities of their bail bonds.
12. As far as Criminal Revision No. 17574 of 2019 (Abdul Sattar vs. Ansar Ali, etc.) is concerned, for the reasons mentioned hereinabove, since the convictions and sentence of the appellants/ respondents Ansar Ali and Muhammad Ashraf have been set aside, hence instant criminal revision petition has lost its relevance, therefore dismissed accordingly.
(A.A.K.) Appeals allowed
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