PLJ 2024 Cr.C. (Note) 187
[Lahore High Court, Lahore]
Present: Shehram Sarwar Ch. and Muhammad Amjad Rafiq, JJ.
versus
STATE etc.--Respondents
Crl. A. No. 3836 & M.R No. 28 of 2020, decided on 20.5.2024.
Pakistan Penal Code, 1860 (XLV of 1860)--
--ایس ایس 302(بی)/34--قتل کا ریفرنس--سزا اور سزا--شک کا چیلنج--غیر معمولی تاخیر--آنکھوں کا بیان-- شکایت کنندہ کی جانب سے پولیس کو جرم کی اطلاع دینے میں اس تاخیر کی کوئی قابل اعتماد یا معقول وجہ شکایت کنندہ کی جانب سے ایف آئی آر میں ذکر نہیں کی گئی تھی یا ٹرائل کورٹ کے سامنے اس کی وضاحت کی گئی تھی- قانون کی مشینری کو حرکت میں لانے میں غیر معمولی تاخیر استغاثہ کے بیان کی صداقت کے بالکل خلاف ہے- امکان موجود ہے کہ یہ ایک غیر ارادی قتل تھا اور پولیس نے اسے حاصل کرنے میں وقت صرف کیا تھا۔ عینی شاہدین کو پیش کرنے اور استغاثہ کے لئے ایک کہانی تیار کرنے میں - لہذا ، آنکھوں کے اکاؤنٹ اور طبی شواہد کے درمیان یہ تنازعہ نظر انداز نہیں کیا جاسکتا ہے بلکہ عینی شاہدین کی ساکھ کو نقصان پہنچاتا ہے اور استغاثہ کی کہانی کو نقصان پہنچاتا ہے - یہ ایف آئی آر اور ٹرائل کورٹ میں استغاثہ کا معاملہ تھا کہ واقعہ کے بعد ، وہ زخمیوں کو الائیڈ اسپتال ڈی لے گئے جہاں ڈاکٹر نے چیک کیا اور انہیں زخمیوں کی موت کے بارے میں بتایا - شکایت کنندہ نے جرح کے دوران بتایا کہ وہ اندر ہی اسپتال پہنچ گئے۔ 30/45 منٹ - فریقین کے درمیان پچھلی دشمنی ایک تسلیم شدہ حقیقت ہے - اب تک یہ بات اچھی طرح سے ثابت ہوچکی ہے کہ مقصد ایک دو دھارا ہتھیار ہے کیونکہ اگر یہ جرم کے ارتکاب کی وجہ ہوسکتا ہے تو اس کے ساتھ ہی یہ شکایت کنندہ کو ملزم کے جھوٹے الزام کے لئے ترغیب دے سکتا ہے ، لہذا ، صرف محرک نہ تو کسی جرم کو ثابت کرسکتا ہے اور نہ ہی اس کی تردید کرسکتا ہے اور اسے کیس کے دیگر متعلقہ حالات کے ساتھ تولا جاسکتا ہے ۔ مقدمے کی سماعت کے وقت گواہوں کے خانے میں لایا گیا - استغاثہ واقعہ کے پیچھے مبینہ محرک کو ثابت کرنے میں ناکام رہا ہے - جہاں تک اپیل کنندہ کے اشارے پر .12 بور ریپیٹر بندوق کی مبینہ برآمدگی کا تعلق ہے جسے ریکوری میمو کے ذریعہ قبضے میں لیا گیا تھا۔ اس کی وجہ یہ ہے کہ پنجاب فرانزک سائنس ایجنسی کی رپورٹ کا مقصد صرف یہ ظاہر کرنا ہے کہ بندوق مکینیکل آپریٹنگ کنڈیشن میں تھی- حالات میں شکایت کنندہ کے بیانات قابل اعتماد نہیں ہیں اور اپیل کنندہ کو سزائے موت پر سزا دلانے کے لئے ان پر بھروسہ نہیں کیا جا سکتا- اس کیس کے تمام فوائد اور نقصانات اور وہ اس ناقابل یقین نتیجے پر پہنچے ہیں کہ 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 اپنے پیروں پر کھڑے ہو کر ملزم کے خلاف اپنا مقدمہ ثابت کرنا ہوتا ہے اور وہ دفاع کے معاملے کی کمزوریوں سے کوئی فائدہ نہیں اٹھا سکتا- استغاثہ اپیل کنندہ کے خلاف کیس ثابت کرنے کی اپنی ذمہ داری نبھانے میں ناکام رہا۔
----Ss. 302(b)/34--Murder reference--Conviction and sentence--Challenge to--Benefit of doubt--Inordinate delay--Ocular account--No convincing or plausible reason for this delay in reporting crime to police was mentioned in FIR by complainant or explained before trial Court--Inordinate delay in setting machinery of law in motion speaks volumes against veracity of prosecution version--Possibility exists that it was an unwitnessed murder and time had been consumed by police in procuring and planting eyewitnesses and in cooking up a story for prosecution--So, this conflict between ocular account and medical evidence is not ignorable rather shatters credibility of eyewitnesses and creates dent in prosecution story--It was case of prosecution in FIR and before trial Court that after occurrence, they took then injured to Allied Hospital D where doctor checked and informed them about death of injured--The complainant narrated during cross examination that they reached hospital within 30/45 minutes--Previous enmity between parties is an admitted fact--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 brought in witness box at time of trial--Prosecution has not been able to substantiate alleged motive behind occurrence--As far as alleged recovery of .12 bore repeater gun at instance of appellant which was taken into possession vide recovery memo. is concerned, same is inconsequential for reason that report of Punjab Forensic Science Agency is simply to effect that gun was in mechanical operating condition--Under circumstances, that statements of complainant are not trustworthy and cannot be relied upon for maintaining conviction of appellant on capital charge--All pros and cons of this case and have come to this irresistible conclusion that 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 legs and it cannot take any benefit from weaknesses of case of defence--Prosecution remained failed to discharge its responsibility of proving case against appellant.
[Para 4, 5 & 7] A, B, C, D, E & F
2019 SCMR 274,, 2022 SCMR 1527, 2022 SCMR 393, 2009 PCr.LJ 1022, 2011 SCMR 1190, 2020 SCMR 192 & 2020 SCMR 219.
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 7] G
2009 SCMR 230.
M/s. Ch. Walayat Ali, Ch. Najam-ul-Hassan, Naveed Ahmad Khan and Ch. Shahid Mehmood, Advocates for Appellant.
Rana Tasawar Ali Khan, Deputy Prosecutor General for State.
Malik Muhammad Imtiaz Mahal, Advocate for Complainant.
Date of hearing: 20.5.2024.
Judgment
Shehram Sarwar Ch., J.--Abdul Ghafoor alias Gill alias Sagheer (appellant) was tried by the learned Addl. Sessions Judge, Faisalabad in case FIR No. 239 dated 11.04.2008, offence under Sections 302 and 34, PPC registered at Police Station Thikriwala District Faisalabad for the murder of Asmat Ullah (deceased) brother of complainant. Vide judgment dated 16.01.2020 passed by the learned trial Court, the appellant has been convicted under Section 302(b)/34, PPC and sentenced to death, with a further direction to pay
Rs. 5,00,000/- 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. Assailing the above conviction and sentence, the appellant has filed the appeal in hand whereas the learned trial Court has sent Murder Reference No. 28 of 2020 for confirmation or otherwise of 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.PP) registered on the statement (Ex.PA) of Khan Muhammad, complainant (PW.6) is that on 11.04.2008 at around 6:00 a.m. (morning) he along with Muhammad Asghar and Muhammad Aslam was going towards his cattle-shed. Asmat Ullah, brother of the complainant was coming to the village after fetching milk from the dera and when he reached near dera of Muhammad Asghar, Abdul Ghafoor alias Gill alias Sagheer (appellant) and Mudassar came there on the motorcycle. Mudassar was driving the motorcycle while the appellant armed with repeater was sitting on the rear seat. Mudassar raised a lalkara that let’s see as to how Asmat Ullah give evidence in previous case. Upon which, the appellant made straight fire with repeater at Asmat Ullah, which hit on his right thigh, resultantly he fell on the ground in injured condition. The accused persons while raising lalkaras fled away toward Chak No. 32/JB on the motorcycle. The complainant along with PWs witnessed the occurrence and took Asmat Ullah to Allied Hospital in injured condition, where the doctor after examining him informed that Asmat Ullah had expired. Motive behind the occurrence as alleged in the FIR was that earlier the accused persons had committed murder of sister of the complainant and in that case, Asmat Ullah (deceased) was a witness whereas the accused were extending him threats not to give evidence in the said case.
3. We have heard learned counsel for the parties as well as learned Law Officer for the State at a considerable length and have also gone through the record with their able assistance.
4. The incident wherein Asmat Ullah (deceased) brother of complainant lost his life, as per prosecution, took place on 11.04.2008 at about 6.00 am. In the area of Chak No. 34/JB situated within the territorial limits of Police Station Thikriwala District Faisalabad. The distance between the place of occurrence and the police station was about seven kilometers. The matter was reported to the police through statement (Ex.PA) of Khan Muhammad, complainant (PW.6) on the same day at 8.00 am. i.e. Two hours after the occurrence and formal FIR (Ex.PP) was got registered at 8.45 a.m. No convincing or plausible reason for this delay in reporting the crime to the police was mentioned in the FIR by the complainant or explained before the learned trial Court. 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), “Abdul Ghafoor vs. The State” (2022 SCMR 1527) and “Pervaiz Khan and another vs. The State” (2022 SCMR 393). Even the postmortem examination of the dead body of deceased was conducted on the same day at 3.30 p.m. i.e. about nine and a half hours after the incident. The medical officer Dr. Sajjad Ahmad (PW.9) stated in the opening sentence of his cross examination that as soon as he received the police papers, he started the postmortem examination of the dead body of deceased without any delay on his part. However, the complainant stated that it was not in his knowledge as to where the police papers were prepared prior to autopsy. Therefore, possibility exists that it was an unwitnessed murder and time had been consumed by the police in procuring and planting eyewitnesses and in cooking up a story for the prosecution. In this regard, reliance may be placed on the case law reported as “Muhammad Riaz vs. The State” (2009 P.Cr.L.J. 1022 Lahore) and “Irshad Ahmed vs. The State” (2011 SCMR 1190).
5. The ocular account was furnished by Khan Muhammad, complainant (PW.6) and Muhammad Ansar Hayat (PW.7), who were closely related to the deceased being his brother and paternal cousin and were interested witnesses. It was case of the eyewitnesses before the police as well as before the learned trial Court that the appellant made a fire shot with his repeater gun at Asmat Ullah (deceased), which landed on his right thigh, who fell down. The postmortem examination of the dead body of deceased was conducted by Dr. Sajjad Ahnsad (PW.9), who observed two entry wounds (one at right lower thigh and second at left lower thigh) along with two exit wounds. Though the complainant stated in examination-in-chief that on the same day, he got recorded supplementary statement before the I.O. at the place of occurrence regarding the correction of number of fire shots but no such statement was exhibited during the course of trial. Even the complainant or the other witness (PW.7) attributed only one fire shot to the appellant in their examination-in-chief. So, this conflict between ocular account and medical evidence is not ignorable rather shatters the credibility of eyewitnesses and creates dent in the prosecution story. Reliance may be placed on the case reported as “Sufyan Nawaz and another vs. The State and others” (2020 SCMR 192) and “Safdar Abbas and others vs. The State and others” (2020 SCMR 219). There is another aspect of the case, which makes the presence of the PWs at the spot doubtful. It was case of the prosecution in the FIR and before the learned trial Court that after the occurrence, they took Asmat Ullah (then injured) to Allied Hospital where the doctor checked and informed them about the death of the injured. The complainant narrated during cross examination that they reached the hospital within 30/45 minutes. As per version of the medical officer (PW.9), who conducted postmortem examination of the dead body of deceased, the probable time that elapsed between injury and death was within 2 to 3 hours, which does not coincide within the time of occurrence as alleged by the PWs. Motive behind the occurrence was that earlier the accused persons had committed murder of sister of the complainant and in that case, Asmat Ullah (deceased) was a witness whereas the accused were extending him threats not to give evidence in the said case. The copy of that FIR has been placed on record as Ex.PT, wherein the names of complainant and Muhammad Aslam (given up PW) are also reflected as the eyewitnesses and they were also allegedly present on the spot at the time of incident but they did not receive even a single scratch at the hands of appellant. Previous enmity between the parties is an admitted fact. 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. We have also observed that no independent witness qua motive was 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. As far as alleged recovery of .12 bore repeater gun (P.1) at the instance of the appellant which was taken into possession vide recovery memo (Ex.PD) is concerned, the same is inconsequential for the reason that the report of Punjab Forensic Science Agency (Ex.PS) is simply to the effect that the gun was in mechanical operating condition. Under the circumstances, we are of the view that statements of Khan Muhammad, complainant (PW.6) and Muhammad Ansar Hayat (PW.7) are not trustworthy and cannot be relied upon for maintaining conviction of the appellant on the capital charge.
6. So far as version of the appellant taken by him in his statement recorded 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.
7. 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 reported as “Muhammad Akram versus The State” (2009 SCMR 230).
8. For the foregoing reasons, the appeal in hand filed by Abdul Ghafoor alias Gill alias Sagheer (appellant) is allowed, conviction and sentence awarded to the appellant vide judgment dated 16.01.2020 passed by the learned trial Court are set aside and he is acquitted of the charge while extending him benefit of doubt. The appellant is confined in jail. He shall be released forthwith if not required to be detained in any other case. It is clarified that the observations made in this judgment are relevant only for the disposal of this appeal, which shall not prejudice the case of co-accused of the appellant namely Mudassar Hafeez, who was absconder at the time of pronouncement of impugned judgment.
9. Murder Reference No. 28 of 2020 is answered in the NEGATIVE and the sentence of death awarded to Abdul Ghafoor alias Gill alias Sagheer (convict) is NOT CONFIRMED.
(A.A.K.) Appeal allowed
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