PLJ 2024 Cr.C. (Note) 127
[Lahore High Court, Lahore]
Present:
Shehram Sarwar Ch., and Ali Zia Bajwa, JJ.
MAZHAR
and another--Appellants
versus
STATE--Respondent
Crl. A.
No. 165202-J & M.R. No. 60 of 2018, heard on 25.4.2022.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Qatl-e-amd--Conviction and
sentence--Challenge to--Conflict between ocular account and medical
evidence--Benefit of doubt--Motive--Recovery is considered a corroborative
piece of evidence, which is not sufficient to sustain conviction of an accused
in a case where ocular account has already been discarded--When ocular account
is not trustworthy and same is in conflict with medical evidence, motive alone
does not advance prosecution case in any manner--Motive is only a circumstance
which might lead to commission of an offence--When evaluated on yardstick of
judicial prescriptions laid down in various judgments, reflect that prosecution
has failed to prove its case against appellants beyond reasonable doubt--Held: It is established principle of
law that for extending benefit of doubt, it is not necessary that there should
be several circumstances, rather one reasonable doubt is sufficient to acquit
an accused, not as a matter of grace but as of right.
[Para
14, 15 & 16] B, C & D
2021 SCMR 736, 2007 SCMR
486 & 2021 SCMR 873.
Benefit of Doubt--
----It is a settled law by now that benefit of such conflict
always goes in favour of accused as it makes presence of eyewitnesses s at
place of occurrence doubtful. [Para
12] A
2021 SCMR 736.
M/s. Mudassar Farooq,
Syed Nadeem Ibrar, Abid Sandhu and Usman Hanif Qureshi, Advocates for Appellants.
Mr. Arshad Ali Farooqi,
Deputy Prosecutor General for State.
Syed Zulfiqar Ali Bokhari,
Advocate for Complainant.
Date of hearing: 25.4.2022.
Judgment
Ali Zia Bajwa, J.--Through
this single judgment, we intend to decide Crl. Appeal No. 165202-J/2018 titled
‘Mazhar & another vs. The State’ filed by Mazhar and Nasir appellants
against their convictions and sentences and Murder Reference No. 60/2018 titled
“The State vs. (i) Nasir & (ii) Mazhar” forwarded by the learned
trial Court for confirmation or otherwise of sentences of death awarded to the
convicts as these are arising out of one and the same judgment of the learned
trial Court.
2. Mazhar and Nasir both sons of Zafar, Sargana by caste and
residents of Thatha Sargana, Tehsil Lalian, District Chiniot along with Mst.
Paris Bibi (since acquitted) were involved in case FIR No. 107/2016, dated
06.07.2016, offences under Sections 302, 109, 148, 149, PPC, registered with
Police Station Kandiwal, District Chiniot. Being aggrieved with the
investigation carried out by local police, the complainant preferred to file
direct complaint against accused persons titled: -
“Muhammad Pinnah vs. Nasir, etc.”
under Sections 302, 109, 148, 149, PPC.
On filing of complaint, learned trial Court after recording preliminary/cursory
statements of the prosecution witnesses, issued process against the
accused/respondents. After recording of evidence and taking into consideration
the material available on record, learned trial Court vide judgment
dated 27.01.2018 acquitted Mst. Paris Bibi co-accused, however, while
concluding that charge against the appellants was proved beyond reasonable
doubt, convicted and sentenced them as under:
➤ Under Section 302(b), PPC,
sentenced to death as Taz’ir with direction to pay Rs. 2,00,000/-each as
compensation to legal heirs of the deceased in terms of Section 544-A, Cr.P.C.
and in case of default in payment thereof, to S.I. for six months each.
3. Precisely facts of the case as narrated in the private
complaint (Exh.PE) lodged by Muhammad Pinnah son of Mallah, caste Sargana, resident
of Mouza Thatha (PW-1) are that on 06.07.2016, he along with Nasir Ali (son)
riding on one motorcycle and Liaquat Ali (son) and Bano Bibi wife of Muhammad
Yar riding on another motorcycle, were going to their house from Mouza
Bahrr-ke. When they reached near Saim-Nala road within the territorial
limits of Burj, at about 5:15 p.m, from opposite side, Nasir and Mazhar along
with one unknown accused person riding on one motorcycle and three unknown
accused persons riding on another motorcycle emerged there. They stopped their
motorcycles on roadside and alighted while armed with Kalashnikovs/firearms.
Liaquat Ali and Bano Bibi were ahead at some distance who were stopped by
accused persons on gun point and made them alighted from their motorcycle.
Appellant Nasir made firing upon Liaquat Ali with his Kalashnikov hitting at
front of his chest, abdomen and upper part of left thigh. Appellant Mazhar made
firing with his Kalashnikov hitting at the neck, right cheek and back side of
head of the deceased, who after sustaining injuries fell down on the ground.
Thereafter Nasir made fire shots hitting the deceased at left and right arms.
Mazhar again made firing upon deceased hitting on his buttocks. After the
occurrence the accused persons while brandishing their firearms by riding on
their motorcycles made good their escape.
The complainant alleged that the accused pointed their firearms
towards him and other PWs and due to fear they couldn’t intervene. Deceased
succumbed to his injuries at the spot. Motive behind the occurrence was stated
to be previous enmity over murder.
4. On receipt of information regarding the occurrence, Muhammad
Iqbal S.I. (CW-3) reached the place of occurrence where he recorded statement
of the complainant and dispatched it to Police Station through Jaffar Ali 220/C
for registration of formal FIR. Thereafter, Investigating Officer drafted
injury statement (Exh.CW-3/A), prepared inquest report (Exh.CW-3/B) and
dispatched dead body to mortuary through Abdul Jamia 544/C (CW-5). From the
spot he secured blood stained soil vide recovery memo Exh.PB. He took
into possession 38 crime empties (P-1/1-38) vide recovery memo Exh.PC,
motorcycle (P-2) vide recovery memo Exh.PD and also prepared rough site
plan of the place of occurrence (Exh.CW-3/C). After postmortem examination last
worn clothes of the deceased viz. Shirt (P-3), shalwar (P-4) and vest (P-5) were taken into possession vide recovery
memo Exh.CW-3/D. On 10.07.2016 he recorded statements of Mudassar and Zohaib
PWs of abetment under Section 161, Cr.P.C. On the direction of the
Investigating Officer and pointing out of the PWs, Muhammad Mansab Ali, Patwari
(CW-1) prepared scaled site plan of the place of occurrence (Exh.CW-1/A and
Exh.CW-1/B). During the course of investigation carried out by CW-3, the
accused couldn’t be traced out; hence police report was prepared and filed for
further proceedings under Section 512, Cr.P.C.
Subsequently investigation was entrusted to Shabbir Ahmed, S.I.
(CW-4) who on 25.01.2017 arrested Mazhar appellant and after investigation
lodged him at judicial lock up. Thereafter on 02.05.2017 he arrested Nasir
appellant, who during the course of interrogation on 12.05.2017, in pursuance
of his disclosure, got recovered Kalashnikov (P-4) along with five live bullets
(P-6/1-5), which were taken into possession vide recovery memo
Exh.CW-4/B. After conclusion of investigation, Investigating Officer prepared
and filed report under Section 173, Cr.P.C. However, the complainant filed
private complaint.
5. The learned trial Court after recording cursory statements
of the prosecution witnesses, issued process against the accused. They were
indicted vide order dated 29.06.2017 to which they pleaded not guilty
and claimed trial. Prosecution, in order to establish its case against the
appellants, produced three prosecution witnesses while learned trial Court also
examined ten Court witnesses.
6. Muhammad Pinnah (PW-1) and Mst. Bano Bibi (PW-2) are
eyewitnesses of the case. Muhammad Mansab Ali Patwari (CW-1) prepared scaled
site plan of the place of occurrence. Dr. Adnan Rasheed (CW-6) conducted
postmortem examination over the dead body. Investigation in this case was
conducted by Muhammad Iqbal, S.I. (CW-3) and Shabbir Ahmed, S.I. (CW-4).
Statements of rest of the prosecution witnesses, more or less, are formal in
nature.
7. After completion of the prosecution evidence, statements of
the appellants under Section 342, Cr.P.C. were recorded by the learned trial
Court. They professed their innocence and pleaded false implication in the
case. Upon completion of trial, the learned trial Court found the prosecution
case proved to the hilt against the appellants, thus, convicted and sentenced
them as mentioned and detailed above, however, Mst. Paris Bibi,
co-accused, was acquitted of the charge.
8. Arguments heard, record perused.
9. Prosecution in order to prove its case relied upon ocular
account, medical evidence, recovery and motive.
Ocular
account and medical evidence
10. Occurrence in this case took place on 06.07.2016 at 5:15
p.m. and FIR was registered on the same day at 7:30 p.m. The dead body was
received in mortuary on the following day i.e. 07.07.2016 at 12:45 a.m. (night)
whereas postmortem examination was conducted at 1:15 a.m. Inquest report
transpires that the dead body was identified by Muhammad Mumtaz (not produced)
and Mudassar Ali (PW-3).
We have straightway noticed that according to the FIR appellant
Nasir has been attributed the role of making firing at the deceased which hit
on his chest and abdomen. He also made fire shots which hit the deceased on his
right and left biceps and arms. Appellant Mazhar made fire shots which hit
deceased on his throat, lower lip, cheek and on the back side of the head. He also
made fire shots which hit deceased on his right and left buttocks. But in
private complaint an additional injury on the upper part of left thigh was
attributed to appellant Nasir. This fact was duly confronted to the complainant
during the course of cross-examination that injury on left thigh attributed to
appellant Nasir was not mentioned in the crime report. It seems that dishonest
improvement was made in private complaint in order to bring medical evidence in
line with the ocular account.
11. Inquest report transpires that dead body of deceased was
identified by Muhammad Mumtaz (not produced) and Mudassar Ali (PW-3). None of
the eyewitness has been mentioned as present in the relevant column of the
inquest report, which further makes their presence at the place of occurrence
doubtful. It also does not appeal to common sense that the appellants who were
allegedly armed with most sophisticated deadly weapons would leave the
prosecution witnesses alive, especially, when those witnesses were closely
related to deceased and there was every possibility that they would depose
against the accused persons. Mst. Bano Bibi (PW-2), who was nominated
accused in murder case of father of the appellants (motive of the instant
occurrence) and who remained incarcerated in jail, was also left alive. This
fact clearly suggests that said witness was not present at the place of
occurrence as claimed by prosecution; otherwise she would have been harmed by
the accused persons especially when she was allegedly riding on the same
motorcycle along with the deceased.
12. Perusal of Postmortem Report (PMR), available on record as
Exh.CW-6/A, transpires that injury attributed to Mazhar appellant on the lower
lip is an exit wound of injury on the right cheek. It has been further noticed
that injuries on right and left buttocks of the deceased attributed to Mazhar
appellant are exit wounds of injuries on the pubic area, lower abdomen and
upper thighs which have been attributed to appellant Nasir. Aforementioned
facts clearly indicate that there is a conflict between ocular account and
medical evidence. It is a settled law by now that benefit of such conflict
always goes in favour of accused as it makes presence of eyewitnesses at the
place of occurrence doubtful. Reliance is placed on the decision of august
Supreme Court of Pakistan in Najaf Ali Shah[1]
wherein it was held as infra:
“9 ... once a single loophole is observed in a case presented by the
prosecution, such as conflict in the ocular account and medical evidence or
presence of eye-witnesses being doubtful, the benefit of such loophole/lacuna
in the prosecution’s case automatically goes in favour of an accuse.”
13. In the aforementioned circumstances we are compelled to
disbelieve and discard the ocular account being in conflict with the medical
evidence and due to implausibility of presence of eyewitnesses at the place of
occurrence.
14. During the course of interrogation on 12.05.2017, appellant
Nasir Ali led to the recovery of Kalashnikov (P-4) along with five live bullets
(P-6/1-5). Thirty eight crime empties taken into possession from the place of
occurrence at the time of spot inspection were sent to Punjab Forensic Science
Agency on 18.07.2016 whereas recovered weapon of offence was submitted on
18.05.2017. Report of forensic lab transpires that crime empties couldn’t have
been fired from the weapon of offence recovered on the pointing out of Nasir
appellant. Therefore, recovery of Kalashnikov is inconsequential and of no help
to the prosecution case. Even otherwise recovery is considered a corroborative
piece of evidence, which is not sufficient to sustain conviction of an accused
in a case where ocular account has already been discarded.
Motive
15. It has been alleged in the private complaint that there was
enmity over murder inter-se the parties in which father of the appellants
namely Zafar was murdered in the year 2006 and deceased was a nominated accused
in that case. Subsequently compromise was effected between the parties and
matter was amicably settled. There is nothing available on the record that why
after so many years, appellants would plan to take revenge of their deceased
father without any triggering circumstances. We are persuaded to hold that
prosecution couldn’t prove motive as alleged in the private complaint through
cogent and convincing evidence. Even otherwise when ocular account is not
trustworthy and the same is in conflict with the medical evidence, motive alone
does not advance the prosecution case in any manner. Moreover, motive is only a
circumstance which might lead to the commission of an offence. Reliance can be
placed on Akbar Ali vs. The State.
2007 SCMR 486, wherein it was observed by the apex Court:
“It is also a settled law that the existence of motive/enmity is
neither a substantive nor a direct evidence. It is not corroborative piece of
evidence either. The motive/enmity is only a circumstance which may lead to the
commission of an offence. It is a starting point for committing a crime but
under no circumstances it can be taken as an evidence.”
16. All the above narrated facts and circumstances when
evaluated on the yardstick of judicial prescriptions laid down in various
judgments, reflect that the prosecution has failed to prove its case against
the appellants beyond reasonable doubt. It is established principle of law that
for extending benefit of doubt, it is not necessary that there should be
several circumstances, rather one reasonable doubt is sufficient to acquit an
accused, not as a matter of grace but as of right. Respectful reliance can be
placed on catena of judgments[2]
of apex Court. August Supreme Court of Pakistan in Najaf Ali Shah supra
observed as infra:
“It is a well settled principle of law that for the accused to be
afforded this right of the benefit of the doubt it is not necessary that there
should be many circumstances creating uncertainty and if there is only one
doubt, the benefit of the same must go to the petitioner”
Same principle was reiterated in Ahmed
Omar Sheikh[3]
in the following terms:
“Even if a single circumstance create reasonable doubt in a prudent
mind regarding guilt of an accused then the accused shall be entitled to such
benefit not as a matter of grace and concession but as a matter of right and
such benefit must be extended to the accused person(s) by the Courts without
any reservation”
17. In consequence of the aforementioned discussion, Crl. Appeal No. 165202-J/2018
tilted ‘Mazhar and another vs. The State’
is ALLOWED. Judgment
dated 27.01.2018 passed by the learned trial Court is set aside and the
appellants are ACQUITTED of
the charges. They are directed to be released forthwith if not required in any
other case.
18. Murder Reference
No. 60/2018 forwarded by the learned trial Court in terms of Section
374, Cr.P.C. for confirmation of death sentences awarded to the convicts fails,
which is answered in NEGATIVE.
Death sentences are NOT CONFIRMED.
(A.A.K.) Appeal allowed
[1]. Najaf Ali Shah vs. The State-2021 SCMR
736.
[2]. Muhammad Mansha v. The State-2018 SCMR
772, The STATE through P.G. Sindh and others v. AHMED OMAR SHEIKH and
others-2021 SCMR 873, Naveed Asghar v. State-PLD 2021 SC 600 & Ayub Masih
v. The State PLD 2002 SC 1048.
[3]. The State through P.G. Sindh and others
vs. Ahmed Omar Sheikh and others-2021 SCMR 873