PLJ 2024 Cr.C. (Note) 194
[Lahore High Court, Lahore]
Present: Shehram Sarwar Ch., J.
versus
STATE--Respondent
Crl. A. No. 257216-J of 2018, decided on 6.6.2024.
Inordinate Delay--
----Inordinate delay in setting machinery of law in motion speaks volumes against veracity of prosecution version. [Para 4] A
2019 SCMR 274, 2022 SCMR 1527 and 2022 SCMR 393 ref.
Pakistan Penal Code, 1860 (XLV of 1860)--
---سیکشن 302(ب)---قتل عمد---ثبوتِ جرم اور سزا---چیلنج---شبہ کی بنیاد پر فائدہ---طویل تاخیر---گواہوں کے بیانات---ان دونوں گواہوں کا واقعے کے وقت موقع پر موجود ہونا مشکوک ہے کیونکہ اگر وہ موقع پر موجود ہوتے تو وہ مقتول اور زخمی گواہ کی مدد کرنے کی کوشش کرتے یا ملزم اور اس کے شریک ملزمان کو روکنے کی کوشش کرتے، جو کہ کسی بھی قسم کی آتشیں بندوق سے لیس نہیں تھے تاکہ گواہان کو دور رکھ سکیں یا روک سکیں---مجرم کے محرک کے حوالے سے کوئی ٹھوس ثبوت استغاثہ نے مقدمے کے دوران پیش نہیں کیا---مقدمے کے دوران استغاثہ نے محرک کے حوالے سے کوئی آزاد گواہ پیش نہیں کیا---استغاثہ ملزم کے خلاف محرک ثابت کرنے میں ناکام رہا ہے---جہاں تک ملزم کے اشارے پر قینچی کی ضبطگی کا تعلق ہے، وہ غیر متعلقہ ہے کیونکہ ضبطگی کی پراسیکیوشن دستاویز کے مطابق قینچی پر خون کے دھبے نہیں تھے---طبی شواہد صرف معاون نوعیت کے ہیں اور ان کا انحصار بنیادی ثبوت یعنی عینی شاہد کے بیان پر ہے، جس پر اعتماد کرنا ممکن نہیں اس کیس میں---استغاثہ کے فراہم کردہ ثبوت کمزور ہیں اور ملزم کی سزا برقرار رکھنے کے لیے قابلِ بھروسہ نہیں---مقدمے کے تمام پہلوؤں پر غور کرنے کے بعد یہ ناقابلِ تردید نتیجہ اخذ ہوا ہے کہ استغاثہ اپنے کیس کو ملزم کے خلاف شبہات سے بالا تر ثابت کرنے میں ناکام رہا ہے---فیصلہ: یہ اب ایک مستحکم قانونی اصول ہے کہ استغاثہ کو اپنے کیس کو خود اپنی بنیاد پر ثابت کرنا ہوتا ہے اور وہ دفاع کی کمزوریوں سے فائدہ نہیں اٹھا سکتا---استغاثہ اپنی ذمہ داری میں ناکام رہا کہ ملزم کے خلاف کیس ثابت کرے۔ [پیرا 4 اور 6] بی، ڈی اور ای
----S. 302(b)--Qatl-e-amd--Conviction and sentence--Challenge to--Benefit of doubt--Inordinate delay--Testimony of PWs--The presence of both these PWs on spot at time of incident is doubtful in nature because had they been present on spot at relevant time, why they did not try to rescue deceased as well as injured PW or to catch hold of appellant and his co-accused, who admittedly were not armed with any firearm to ward said eyewitnesses off or to keep them away at time of incident--No solid evidence qua motive part of incident was produced by prosecution during trial--No independent witness qua motive part of incident was produced by prosecution at trial stage--Prosecution has failed to prove motive against appellant--So far as alleged recovery of scissor at instance of appellant is concerned same is immaterial because, as per recovery memo, same was not stained with blood--The medical evidence is merely a corroborative piece of evidence and relevant only if primary evidence i.e--ocular account inspires confidence which is not situation in this case--Evidence furnished by prosecution is shaky in nature and cannot be relied upon for maintaining conviction/sentence of appellant--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 & 6] B, D & E
2015 SCMR 315 & 2018 SCMR 326.
Evidence--
اب یہ بات واضح ہو چکی ہے کہ ایک ملزم کے خلاف شک کے دائرے میں آنے والے ثبوت کو دوسرے ملزم کے خلاف قابلِ اعتبار نہیں سمجھا جا سکتا۔
---- It is settled by now that evidence which was found doubtful to extent of one set of accused cannot be believed against another set of accused. [Para 4] C
2022 SCMR 393.
Benefit of Doubt--
----It e appellant 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 6] F
2009 SCMR 230.
M/s. Rao Amjad Ali, Ali Hussain and Ch. Najam-ul-Hassan, Advocates for Appellant.
Sh. Muhammad Nauman Siddique, Deputy Prosecutor General for State.
Mr. Adnan Shamim Bhatti, Advocate for Complainant.
Date of hearing: 6.6.2024.
Judgment
Danial alias Bulli (appellant) along with his co-accused namely Danish alias Dana was tried by the learned Addl. Sessions Judge, Lahore in case FIR No. 832 dated 26.08.2013 offence under Sections 302, 324 and 34, PPC registered at Police Station Nishtar Colony District Lahore for the murder of Shain Gill (deceased) son of complainant and launching murderous assault on Stephan Sahotara (injured). Vide judgment dated 29.09.2018 passed by the learned trial Court, the appellant has been convicted under Section 302(b), PPC and sentenced to imprisonment for life, with a further direction to pay compensation of Rs. 2,50,000/- to the legal heirs of deceased and in default whereof to further undergo simple imprisonment for six months. Benefit of Section 382, Cr.P.C. was extended to the appellant. Through the same judgment, Danish alias Dana, co-accused of the appellant was acquitted of the charge and no appeal against his 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.
2. Prosecution story in brief, as set out in the FIR (Ex.PA/3) registered on the written application (Ex.PA) of Nazir Gill, complainant (PW.1) is that on 25.08.2013 at 7:45 p.m., his son Shain Gill along with his friend Stephan Sahotara was coming from the house of his maternal uncle and when they reached near the house, Danish alias Dana and Danial alias Bulli (appellant) were present at billiard shop in drunken position and started hurling abuses. The son of complainant forbade them, whereupon they grappled with him and his friend Stephan Sahotara. Danish alias Dana caused injuries with dagger on the head and arm of Stephan Sahotara. Danial alias Bulli (appellant) inflicted scissor blow on the abdomen of Shain Gill with intent to kill him, who fell down and became unconscious. On hearing hue and cry, the complainant from the door of his house attracted to the spot where his son as well as his friend were lying unconscious in injured condition. The accused decamped from the scene of crime while raising lalkara and brandishing their weapons. The complainant and Moris Pace witnessed the occurrence and immediately took son of complainant and his friend to General Hospital, Lahore for medical treatment. Subsequently, Shain Gill son of complainant succumbed to the injuries on 28.09.2013.
3. I have heard learned counsel for the parties as well as learned Deputy Prosecutor General and gone through the record with their able assistance.
4. The occurrence in this case allegedly took place on 25.08.2013 at 7:45 p.m. whereas the matter was reported to the police on 26.08.2013 at 9:15 p.m. The distance between police station and the place of occurrence is two kilometers. There is a delay of about twenty five hours and thirty minutes in reporting the crime to the police without there being any plausible explanation. It is also worth mentioning here that while appearing before the learned trial Court the complainant (PW.1) and two witnesses of ocular account namely Stephan Sahotara (PW 2) and Moris Pace (PW.3) did not utter even a single word about the above said delay. Therefore, I 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). The ocular account in this case consists of Nazir Masih, complainant (PW.1). Stephan Sahotara (PW.2) and Moris Pace (PW.3). First of all, I take up the testimony of Nazir Masih, complainant (PW.1) and Moris Pace (PW.3). In the first part of FIR it is mentioned that on hearing noise, the complainant came on the spot and saw that his son and his friend were lying on the ground in unconscious condition, however, at the end of FIR he stated that he and Moris had witnessed the occurrence. There is no mention in the FIR as to how Moris Pace (PW.2) carne on the spot and witnessed the occurrence. The presence of both these PWs on the spot at the time of incident is doubtful in nature because had they been present on the spot at relevant time, why they did not try to rescue the deceased as well as injured PW or to catch hold of the appellant and his co-accused, who admittedly were not armed with any firearm to ward the said eye-witnesses off or to keep them away at the time of incident. A reference in this respect may be made to the cases of “Pathan vs. The State” (2015 SCMR 315) and “Zafar vs. The State and others” (2018 SCMR 326). In the FIR as well as before the learned trial Court it was the case of both these PWs that the occurrence allegedly took place at billiard club but according to scaled site plan (Exh.PN) the occurrence took place in front of shop of brother of accused. Moreover, the above said PWs have utterly failed to bring anything on the record establishing their claimed presence with the deceased at the relevant time. Therefore, I hold that both the above said PWs were not present on the spot at the time of incident. As far as testimony of Stephan Sahotara (PW.2) is concerned, the same is of no avail to the prosecution because the said PW allegedly sustained injuries during the incident at the hands of danish alias Dana co-accused of the appellant who has been acquitted by the learned trial Court. Meaning thereby the prosecution story to the extent of sustaining injuries by Stephan Sahotara (PW.2) at the hands of Danish alias Dana co-accused of the appellant has been disbelieved by the learned trial Court. The argument of the learned DPG as well as learned counsel for the complainant that presence of the injured PW cannot be doubted at the place of occurrence due to the injuries on his person has no substance because merely the injury on the body of a person would not stamp him/her truthful witness. Reliance is placed on case law titled as “Amin Ali and another vs. The State” (2011 SCMR 323). The disturbing part of the ocular account is that on the basis of the same statements made by the eye-witnesses the co-accused of the appellant namely Danish alias Dana, who allegedly caused injuries on the person of injured PW, has been acquitted by the learned trial Court and no appeal against his acquittal was filed either by the State or the complainant. It is settled by now that the evidence which was found doubtful to the extent of one set of accused cannot be believed against another set of accused. Reliance is placed on case law tilted as “Pervaiz Khan and another vs. The State” (2022 SCMR 393). I have further noted that no solid evidence qua motive part of incident was produced by the prosecution during the trial. No independent witness qua motive part of incident was produced by the prosecution at trial stage. Therefore, I hold that the prosecution has failed to prove motive against the appellant. So far as alleged recovery of scissor at the instance of appellant is concerned the same is immaterial because, as per recovery memo. (Exh.PC), the same was not stained with blood. The medical evidence is merely 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. Therefore, I hold that the evidence furnished by the prosecution is shaky in nature and cannot be relied upon for maintaining the conviction/sentence of the appellant.
5. As 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.
6. I 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 law reported as “Muhammad Akram versus The State” (2009 SCMR 230).
7. For the foregoing reasons, the appeal in hand filed by Danial alias Bulli (appellant) is allowed, conviction and sentence awarded to him vide judgment dated 29.09.2018 passed by the learned trial Court are set aside and the appellant 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.
(A.A.K.) Appeal allowed
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