موقع گواہ کی گواہی - موقع گواہ -موقع کے گواہوں کی گواہی کو محتاط جانچ پڑتال کی ضرورت ہوتی ہے اور اسے اس وقت............

 PLJ 2024 Cr.C. (Note) 190

[Lahore High Court, Lahore]

Present: Shehram Sarwar Ch. and Muhammad Waheed Khan, JJ.

TAJAMMAL RASHEED alias MOON--Appellant

versus

STATE--Respondent

Crl. A. No. 78727-J & M.R. No. 359 of 2019, decided on 29.1.2024.

Pakistan Penal Code, 1860 (XLV of 1860)--

----S. 302(b)--Qatl-e-amd--Conviction and sentence--Challenge to-

-شک کا فائدہ - موقع گواہ کی گواہی - طبی ثبوت - اب تک یہ بات اچھی طرح سے طے ہوچکی ہے کہ جب کوئی گواہ استغاثہ کے کیس کو مضبوط بنانے کے لئے اپنے بیان کو بہتر بناتا ہے اور اس نتیجے پر پہنچتا ہے کہ بہتری جان بوجھ کر اور بدنیتی سے کی گئی تھی ، تو ایسے گواہ کی گواہی قابل اعتماد نہیں رہتی ہے - جہاں تک طبی شواہد کا تعلق ہے ، اس سے چوٹ کی وصولی کے بارے میں واضح بیان کی تصدیق ہوسکتی ہے ، چوٹ کی جگہ، چوٹ پہنچانے کے لیے استعمال ہونے والا ہتھیار، چوٹ اور موت کے درمیان کا دورانیہ لیکن اس میں حملہ آوروں کے نام نہیں بتائے جائیں گے- جہاں تک اپیل گزار کے کہنے پر 30 بور پستول کی مبینہ برآمدگی کا تعلق ہے، یہ بازیابی ثبوت کا ایک ثبوت ہے اور صرف اسی صورت میں متعلقہ ہے جب بنیادی ثبوت یعنی آکیولر اکاؤنٹ اعتماد پیدا کرتا ہے، جو اس معاملے میں صورتحال نہیں ہے- استغاثہ درخواست گزار کے خلاف اپنا مقدمہ کسی شک و شبہ کے سائے سے بالاتر ثابت نہیں کر سکا۔ اب تک قانون کا یہ طے شدہ اصول ہے کہ یہ استغاثہ ہے، جسے ملزم کے خلاف اپنا مقدمہ خود ثابت کرنا ہوتا ہے اور وہ دفاع کے معاملے کی کمزوریوں سے کوئی فائدہ نہیں اٹھا سکتا- فوری طور پر استغاثہ اپیل کنندہ کے خلاف مقدمہ ثابت کرنے کی اپنی ذمہ داری نبھانے میں ناکام رہا۔

-Benefit of doubt--Testimony of chance witness--Medical evidence--It is well settled by now that when a witness improves his/her statement to strengthen prosecution case and moment it is concluded that improvement was made deliberately and with mala fide intention, testimony of such witness does not remain reliable--As far as medical evidence is concerned, same may confirm ocular account with regard to receipt of injury, locale of injury, kind of weapon used for causing injury, duration between injury and death but it would not tell name of assailants--So far as alleged recovery of 30 bore pistol at instance of appellant is concerned, that recovery is a corroborative piece of evidence and relevant only if primary evidence i.e--ocular account inspires confidence, which is not situation in this case--The 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 le0067s 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 4, 5, 6 & 7] A, D, E & F

2010 SCMR 385, PLD 2021 SC 600, 2021 SCMR 810 &
1995 SCMR 599.

Testimony of Chance Witness--

--عام طور پر موقع کے گواہ کی گواہی اس وقت تک قبول نہیں کی جاتی جب تک کہ متعلقہ وقت پر جائے واردات پر اس کی موجودگی کو ثابت کرنے کے لئے معقول وجوہات نہ دکھائی جائیں- عام طور پر، قانون کے تحت جرم کی جگہ سے اس کی غیر موجودگی کے بارے میں مفروضہ کام کرے گا- موقع کے گواہ کی گواہی پر بھروسہ کیا جا سکتا ہے، بشرطیکہ جرم کی جگہ پر اس کی موجودگی کے بارے میں عقلمند ذہن کو اپیل کرنے والی کچھ ٹھوس وضاحتیں پیش کی جائیں، جب یہ واقعہ پیش آیا تو اس کی گواہی مشکوک شہادت کے زمرے میں آتی ہے اور اسے چٹکی بھر نمک کے بغیر قبول نہیں کیا جا سکتا۔

--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 4] B

2015 SCMR 1142, 2016 SCMR 2021 and PLD 2021 SC 600.

Chance Witness--

--موقع کے گواہوں کی گواہی کو محتاط جانچ پڑتال کی ضرورت ہوتی ہے اور اسے اس وقت تک قبول نہیں کیا جاتا جب تک کہ وہ متعلقہ وقت پر یا واقعہ کی جگہ کے قریب موجودگی کی تسلی بخش وضاحت نہ دیں۔

--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] C

Benefit of Doubt--

---

یہ بھی اچھی طرح سے ثابت ہے کہ اگر کوئی ایک صورت حال ہے جو استغاثہ کے کیس کے بارے میں شکوک و شبہات پیدا کرتی ہے تو وہ ملزم کو شک کا فائدہ دینے کے لئے کافی ہے ، جبکہ ، فوری کیس متعدد حالات سے بھرا ہوا ہے جس نے استغاثہ کی کہانی کے بارے میں سنگین شکوک و شبہات پیدا کیے ہیں۔

-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 8] G

2009 SCMR 230.

Mr. Kamran Javed Malik, Advocate for Appellant.

Mr. Humayoun Aslam, Deputy Prosecutor General for State.

Mr. Shahid Mir, Advocate for Complainant.

Date of hearing: 29.1.2024.

Judgment

Shehram Sarwar Ch., J.--Tajammal Rasheed alias Moon (appellant) along with his co-accused namely Mst. Musarrat Bibi was tried by learned Sessions Judge, Sialkot in case FIR No. 455 dated 23.05.2018 offence under Sections 302 and 34, PPC, registered at Police Station Saddar Sialkot District Sialkot for the murder of Syed Ali Imran (deceased) son of complainant. Vide judgment dated 31.10.2019 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 deceased and in default whereof to further undergo simple imprisonment for six months. Through the same judgment, Mst. Musarrat Bibi, co-accused of the appellant was acquitted of the charge by extending her benefit of doubt and no appeal against her acquittal was filed either by the State or the complainant, as conceded by learned Law Officer as well as learned counsel for the complainant. Assailing the above conviction and sentence, the appellant has filed the appeal in hand whereas the learned trial Court has sent Murder Reference No. 359 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 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.PC/1) registered on the written application (Ex.PC) of Kafaiyat Hussain Shah, Complainant (PW.10) is that Syed Ali Imran son of complainant was residing in a rented flat at Langriwali. On 22.05.2018, a minor quarrel took place between wife of said Syed Ali Imran and Mst. Musarrat Bibi wife of Tajammal Rasheed alias Moon Pehalwan (appellant) due to falling of water in the Courtyard of house. Having heard the same, the complainant along with Abid Hussain and Amjad Hussain reached the flat of Ali Imran at around 11.00 p.m. and called the owner of house namely Saqlain. Tajammal Rasheed (appellant) and his wife were not present in their house and they were repeatedly called by owner of the house but they replied that they will come back after some time. Thereafter, owner of flat returned to his house and the complainant party along with his son and daughter-in-law laid on the rooftop. On 23.05.2018 at about 12.30 a.m. (night), the outer door was knocked where a bulb was lit. The complainant side saw from the roof that Tajammal Rasheed and his wife Mst. Musarrat Bibi were standing outside the door and the complainant sent Ali Imran downstairs to open the door. As soon as Ali Imran opened the door, Mst. Musarrat Bibi caught his hair and dragged him outside. Tajammal Rasheed alias Moon took out pistol from the fold of his shalwar and made a straight fire at son of complainant, which landed on his left thigh, who fell down. The complainant party ran downstairs and the accused decamped from the spot while leaving son of complainant in injured condition. The complainant party awoke up the neighbours and made a phone call to Rescue 1122, who came at the spot after a short while. They shifted son of complainant to Civil Hospital, where the doctor tried to save his life by giving him treatment but he could not survive.

3. We have heard arguments of learned counsel for the parties as well as the learned Law Officer 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 Kafaiyat Hussain Shah, Complainant (PW.10) and Syed Amjad (PW.11), who were closely related to the deceased being his father and maternal uncle respectively and were chance witnesses. The occurrence took place outside the rented flat of deceased situated in the area of Langriwali. Both the eye-witnesses were residents of Syedanwali and the distance between the place of occurrence and their houses, as admitted by them during their cross examinations, was one mile and five kilometers respectively. No convincing or plausible reason for their presence on the spot at relevant time was assigned by the eye-witnesses and it was simply stated by the complainant in his examination-in-chief that they along with Abid Hussain (since given up) reached the house of his son Syed Ali Imran (deceased) as he received information that some quarrel happened between wife of deceased and Mst. Musarrat Bibi, since acquitted regarding falling of water, which too was motive behind the occurrence. In this regard, the version of Irfan Ashraf, S.I/I.O. (PW.13) in his cross-examination was that he did not record the statement of Mst. Nusrat Bibi wife of deceased under Section 161, Cr.P.C. The I.O. further stated that there was no application regarding the quarrel followed by the instant occurrence i.e. the motive of the occurrence. Even he did not record the statement of any witness regarding quarrel which subsequently made basis for the present incident. In our view, the wife of deceased was material witness but she was not cited as a witness and even she was not produced before the learned trial Court in support of the motive, as such the prosecution has failed to substantiate the alleged motive behind the occurrence. There are also contradictions between the statements of both the eye-witnesses as the complainant (PW.10) stated in his cross-examination that they proceeded to the house of deceased on two motorcycles, and that his daughter-in-law (wife of deceased) made a telephonic call to Rescue 1122. Whereas the stance of Syed Amjad (PW.11) was different to that of the complainant, who narrated during cross-examination that they were riding over one bike while going towards the house of deceased; and that the complainant made a call to Rescue 1122 after the occurrence. We have also observed that PW.11 while appearing before the learned trial Court, in order to strengthen the prosecution case, made dishonest improvements, he was confronted with his previous statement (Ex.DA) and the improvements were brought on record. It is well settled by now that when a witness improves his/her statement to strengthen the prosecution case and the moment it is concluded that the improvement was made deliberately and with mala fide 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 v. The State and others” (2010 SCMR 385), “Naveed Asghar and 2 others vs. The State” (PLD 2021 SC 600) and “Khalid Mehmood and another vs. The State” (2021 SCMR 810). The conduct of the complainant also appears to be improbable from the following portion of his cross-examination:

“... I do not know when police officials reached at the hospital and when they left the hospital. I do not know how much time was consumed by doctors to give treatment to my son. I received information about the death of my son at 5:00 a.m for the first time.”

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 Kafaiyat Hussain Shah, complainant (PW.10) and Syed Amjad (PW.11) were not present on the spot and had not witnessed the occurrence.

5. As far as medical evidence is concerned, the same may confirm the ocular account with regard to the receipt of injury, locale of injury, kind of weapon used for causing the injury, duration between the injury and the death but it would not tell the name of the assailants. Reliance is placed on “Ata Muhammad and another versus The State” (1995 SCMR 599).

6. So far as the alleged recovery of .30 bore pistol at the instance of the appellant is concerned, we may observe here that the recovery is a corroborative piece of evidence and relevant only if the primary evidence i.e. ocular account inspires confidence, which is not the situation in this case.

7. 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.

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 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 le0067s 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).

9. For the foregoing reasons, the appeal in hand filed by Tajammal Rasheed alias Moon (appellant) is allowed, conviction and sentence awarded to the appellant vide judgment dated 31.10.2019 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.

10. Murder Reference No. 359 of 2019 is answered in the NEGATIVE and the sentence of death awarded to Tajammal Rasheed alias Moon (convict) is NOT CONFIRMED.

(A.A.K.)          Appeal allowed