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Petitioner: MUHAMMAD IMRAN VS Respondent: StateHonorable Justice Sadiq Mahmud KhurramRana Muhammad Asif Saeed and Javed Iqbal Bhatti
2019 M L D 1753 [Lahore (Multan Bench)] Before Sadaqat Ali Khan and Sadiq Mahmud Khurram, JJ MUHAMMAD IMRAN---Appellant Versus The STATE and another---Respondents Criminal Appeal No. 17 and Murder Reference No. 7 of 2014, heard on 20th November, 2018.
(a) Penal Code (XLV of 1860)--- ----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt--- Dishonest improvements--- Night-time occurrence--- Non-availability of source of light---Effect---Chance witness---Absence of witnesses from hospital---Scope---Prosecution case against accused was that at about 2:00 am he committed murder of deceased---Complainant admitted during cross-examination that he got registered the case against two accused persons and that he considered the sacks of wheat as accused persons---Statement of complainant led to the irresistible conclusion that the witnesses had not seen anything at the crime scene---Two other eye-witnesses had also fell into the same mistake due to lack of light at the crime scene---No source of light was mentioned by the witnesses while recording their statements before Investigating Officer and before Trial Court---Investigating Officer did not take into possession any article so as to prove that sufficient light was present at the place of occurrence---Complainant and the eye-witness were not permanent residents of the place of occurrence rather they resided at a distance of about 3/4 kilometers---Complainant had stated that he ran an agency for the sale of wheat and cotton at the place of occurrence, which was the reason for his presence on the crime scene---Investigating officer took only one cot into possession which belonged to the deceased but did not take into possession any cot being used by complainant and the eye-witness---Investigating officer did not collect documentary evidence to prove that any agency was established at the crime scene---Investigating officer failed to take into possession any wheat sacks which were statedly available at the crime scene---Post-mortem was conducted after six hours of the occurrence, still none of the witnesses identified the dead body of the deceased in the hospital---Eye-witnesses were not present near the place of occurrence as per inquest report---Appeal was accepted and conviction and sentence awarded by trial court was set aside---Murder reference was answered in the negative. Gulfam and another v. The State 2017 SCMR 1189 rel.
(b) Penal Code (XLV of 1860)--- ----S. 302(b)---Qatl-i-amd---Motive---Motive for the occurrence as alleged by complainant was that the accused suspected illicit liaison of the deceased with his sister---Complainant admitted during cross-examination that sister of accused had died 5/6 years prior to the occurrence---Held; when the sister of accused had died prior to the occurrence and that too many years ago, then it was beyond reason that the occurrence would have been committed on suspicion of illicit relations---Motive was not believed, in circumstances.
(c) Penal Code (XLV of 1860)--- ----S. 302(b)---Qatl-i-amd---Recording of statement after preliminary investigation---Scope---Statement of complainant, while he was proceeding towards police station, was recorded by investigating officer at his patrolling duty---High Court deprecated the practice of receiving complaints on the crime spot after preliminary investigation---Witnesses were held to be not present at the place of occurrence at the time of occurrence---Oral statement was declared to be fake.
Mst. Rukhsana Begum and others v. Sajjad and others 2017 SCMR 596 fol.
(d) Penal Code (XLV of 1860)--- ----S. 302(b)---Qatl-i-amd---Delayed post-mortem---Scope--- Incident was reported to the police at 3:15 a.m. by oral statement of complainant---Post-mortem was conducted after a delay of about five hours from the time of registration of FIR---Doctor had given the probable duration of time between death and post-mortem as 4 to 8 hours---Held; delay was reflective of absence of witnesses and the sole purpose of causing delay was to procure the presence of witnesses and to further advance the false narrative to involve any person.
Khalid alias Khalidi and 2 others v. The State 2012 SCMR 327 rel.
(e) Penal Code (XLV of 1860)--- ----S. 302(b)---Qatl-i-amd---Medical and ocular evidence---Contradictions---Dishonest improvements---Complainant had stated before investigating officer that the fire shot hit the deceased on the right side of the temporal region whereas while appearing as witness he had not mentioned as to where the fire shot hit the deceased---Second eye-witness had also improved his version in the same way and had not mentioned any side where the alleged fire shot hit the deceased---Doctor had observed the wound on the left side of the head and not on the right---Held; improvements in the statements of witnesses were not only dishonest but were proved to be incorrect. Muhammad Sharifan Bibi v. Muhammad Yasin and others 2012 SCMR 82 rel.
(f) Criminal trial--- ----Witness---Chance witness---Chance witness is the one who claims to be present at the place of occurrence at the relevant time though his presence there was a sheer chance in ordinary course of business.
(g) Criminal trial--- ----Cross-examination---Principles---Principle that failure to cross-examine a witness would result in a fact to be proved is applicable to civil cases and not to criminal cases---Court has to decide criminal cases on the basis of totality of impressions gathered from the circumstances of the case and not on the narrow ground of cross-examination or otherwise of a witness on a particular fact. Nadim Ramzan v. The State 2018 SCMR 149 rel.
(h) Penal Code (XLV of 1860)--- ----S. 302(b)---Qatl-i-amd---Recovery of weapon---Scope--- Recovery of .30 bore gun from accused was held to be inconsequential where report of Forensic Science Laboratory revealed that one crime empty of .30 bore and one pistol of 30 bore were received on the same day. Nasrullah alias NASRO v. The State 2017 SCMR 724 fol.
(i) Criminal trial--- ----Benefit of doubt---Benefit of only a single circumstance creating doubt in the mind of a prudent person is to be extended to accused not as a matter of concession but as of right. Muhammad Mansha v. The State 2018 SCMR 772 rel. Rana Muhammad Asif Saeed and Javed Iqbal Bhatti for Appellant. Malik Riaz Ahmad, Deputy Prosecutor General for the State. Rana Muhammad Akram for the Complainant. Date of hearing: 20th November, 2018.
JUDGMENT
SADIQ MAHMUD KHURRAM, J.---The appellant namely Muhammad Imran son of Bashir Ahmad was tried by the learned Additional Sessions Judge, Alipur, District Muzaffargarh, in case FIR No.164 of 2011. dated 08.06.2011 registered at Police Station Seet Pur, District Muzaffargarh, under section 302/34, P.P.C. for committing the Qatl-i-Amd of Zahid Hussain (deceased). The learned trial court vide judgment dated 21.12.2013 convicted Muhammad Imran (convict) and sentenced him as infra: Muhammad Imran: Death under section 302(b), P.P.C. as Tazir for committing Qatl-i-Amd of Zahid Hussain (deceased) and pay Rs.3 Lac as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased and in default thereof, to further undergo six months of simple imprisonment. The convict was ordered to be hanged by his neck till dead. 2. Feeling, aggrieved Muhammad Imran (convict) lodged Criminal Appeal No.17 of 2014 against his conviction and sentence. The learned trial Court submitted Murder Reference No. 07 of 2014 under section 374, Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant Muhammad Imran. We intend to dispose of both the Criminal Appeal No.17 of 2014 and Murder Reference No.07 of 2014 through this single judgment. 3. Precisely the facts necessary, as divulged in the statement of Mazhar Hussain (PW-8) are as under:-- "I run business of Arhat regarding wheat and cotton. On 8.6.2011 I along with my sons Zahid Hussain and Shahid Hussain, Nazar Hussain brother were sleeping in the courtyard of our Ada. At about 2.00 A.M. (night) we woke up on the Kharak. An electric bulb was lightening. In the light of bulb we saw that Muhammad Imran son of Bashir Ahmad accused present in the Court armed with pistol, was standing near the cot of Zahid Hussain. Accused raised lalkara and asked Zahid Hussain that he will give the taste of illicit liason with Mst. Kausar (sister of accused). Within our view accused Muhammad Imran present in the Court made straight fire shot with pistol which hit on the Kanpati (temporal region ) of my son Zahid Hussain deceased. The occurrence was witnessed by PW Shahid Hussain my son and Nazar Hussain my brother, besides me. We attempted to catch hold the accused but he succeeded to flee away while brandishing his pistol. We took care of my son Zahid Hussain who had succumbed due to fire arm injury. The motive behind the occurrence is that the accused Muhammad Imran suspected illicit liaison of deceased with his sister Mst. Kausar Bibi due to this reason he committed murder of my son Zahid Hussain. I left Shahid Hussain my son, Nazar Hussain brother to guard the dead body of deceased and went to police station. I was on my way to police station, police van met near Government Boys High School Seetpur. I made my statement Ex.PG which was reduced into writing by the thanedar, it was read over and explained to me and I put my signature thereon in token of its correctness which is Ex.PG/1. After recording my statement Ex.PG the police along with me came at the place of occurrence. At the place of occurrence, the police started its proceedings. Accused has committed excess with me. He be punished adequately." The oral statement of Mazhar Hussain (PW-8) was reduced into writing by Bashir Ahmad SI (PW-11) who sent the said statement (Exh.PG) to the police station where Riaz Hussain Bukhari ST (PW-2) registered formal FIR (Exh.PC). 4. The learned trial court framed charge against the appellant on 08.12.2011 to which he pleaded not guilty and the learned trial Court proceeded to examine the prosecution witnesses. 5. The prosecution in order to prove its case got recorded statements of as many as eleven witnesses. The ocular account of the occurrence was deposed by Mazhar Hussain, (PW-8) and Shahid Hussain (PW-9). Sajjad Hussain, Patwari (PW-3) prepared the scaled site plan of the place of occurrence, (Exh.PD). Ghulam Qasim 8/C (PW-4) stated that on 17.06.2011 he was handed over a sealed parcel by Muhammad Khalid 1317/HC (PW-10) which he deposited in the office of Chemical Examiner, Lahore. Muhammad Asghar 1382/C (PW-5) stated that he escorted the dead body of the deceased to RHC Seet Pur and was handed over the last worn clothes of the deceased which were taken into possession by Bashir Ahmad SI (PW-11). Shahid Ali 1565/C (PW-6) stated that on 04.07.2011 he witnessed the recovery of pistol effected from Muhammad Imran (appellant) which was taken into possession through recovery memo (Exh.PF). Nazir Ahmad (PW-7) identified the dead body of the deceased at the time of its postmortem and also was a witness to the recovery memo. (Exh.PE) relating to last worn clothes of the deceased. Muhammad Khalid 1317/HC (PW-10) stated that on 08.06.2011 he was handed over a parcel said to contain earth by Bashir Ahmad SI (PW-11) and on 17.06.2011 he handed over the said parcel to Ghulam Qasim 8/C (PW-4) for its transmission to office of Chemical Examiner. Muhammad Khalid 1317/C. (PW-10) further stated that on 04.07.2011. Bashir Ahmad, SI (PW-11) handed over to him a parcel said to contain one crime empty and five live bullets which on 09.01.2012 he handed over to Ishtiaq Ahmad 572/C for its onward transmission to Forensic Science Laboratory. Bashir Ahmad SI (PW-11) investigated the case and stated the details of his investigation before the learned trial court. 6. The prosecution also got examined Dr. Abdul Salam (PW-1) who was posted as Senior Medical Officer at THQ Hospital Alipur on 08.06.2011. On the said date Dr. Abdul Salam (PW-1) conducted the postmortem examination of the deceased Zahid Hussain and issued the postmortem report (Exh.PB). He observed as under: "Injury No.1. An oval shape wound of 1 cm x 8 mm x going deep and deep into the carnial cavity present on the left side of the head on the occipital region just 3 cm behind left ear. Edges are inverted (Entry Wound). Injury No.2. An irregular shaped wound of 2.5 cm x 1 cm x going deep and deep to the cranial cavity making continuous track with injury No.1 present on the right parietal region of the head edges are averted (Exit wound). REMARKS BY MEDICAL OFFICER: "After conducting the autopsy, I was of the opinion that death occurred due to hemorrhage and shock due to injury Nos. 1 and 2 which were inflicted by fire arm weapon and were ante-Mortem in nature and were Sufficient for the cause of death in ordinary course of nature. Probable time that Elapsed:-' a) Between injury and death was within 2 to 3 minutes approximately. b) Between death and post mortem was within 4 to 8 hours approximately." 7. On 23.11.2013 the learned ADPP gave up PWs Nazar Hussain, Mohammad Azhar as being unnecessary and PW Ghulam Akbar 408/C who had expired. On 29.11.2013 the learned ADPP closed the prosecution evidence after tendering the report of Chemical Examiner (Exh. PN), report of Serologist (Exh.PM) and report of Punjab Forensic Science Agency (Exh.PO). 8. After the closure of prosecution evidence, the learned trial court examined the appellant under section 342, Cr.P.C. and in answer to question why this case against you and why the PWs have deposed against you he gave the reply that he had been involved due to enmity. Neither the appellant opted to get himself examined under Section 340(2), Cr.P.C. nor adduced any evidence in his defence. 9. On the conclusion of the trial, the learned Addl. Sessions Judge Ali Pur, District Muzaffargarh, convicted and sentenced the appellant as referred to above. 10. The contention of the learned counsel for the appellant precisely is that whole case is fallacious and untruthful. They further submitted that the prosecution remained unable to prove the facts in issue and did not produce any irreproachable, admissible and relevant evidence. They further contended that the statements of Mazhar Hussain (PW-8) and Shabid Hussain (PW-9) are not worthy of any reliance. They also argued that the medical evidence was not supportive of the prosecution case. They also contended that had Mazhar Hussain (PW-8) and Shahid Hussain (PW-9) been present, they would not have committed an error regarding the number of assailants. They also argued that the recovery was a result of fake proceedings. They finally submitted that the prosecution has totally failed to prove the case against the accused beyond the shadow of doubt as required by law. 11. On the other hand, learned-Deputy Prosecutor General along with learned counsel for the complainant contended that the prosecution has proved its case beyond shadow of doubt by producing independent witnesses. They further submitted that there was no untoward delay in lodging the FIR. The learned Deputy Prosecutor General along with learned counsel for the complainant further argued that the deceased died as a result of injuries suffered at the hand of the appellant. The learned Deputy Prosecutor General along with learned counsel for the complainant further contended that the medical evidence also corroborated the statements of Mazhar Hussain (PW-8) and Shahid Hussain (PW-9). The learned Deputy Prosecutor General along with learned counsel for the complainant further argued that the recovery of pistol 30 bore from Muhammad Imran (appellant) also corroborated the ocular account. The learned Deputy Prosecutor General along with learned counsel for the complainant contended that the appellant had grudge against the deceased and there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offender with the innocent in this case. Lastly, they prayed for the rejection of appeal. 12. We have heard the learned counsel for the appellant and the learned Deputy Prosecutor General along with learned counsel for the complainant and with their assistance perused the record and evidence recorded during the trial carefully. 13. The whole prosecution case orbits around the statements of Mazhar Hussain (PW-8) and Shahid Hussain (PW-9). At the very outset the first aspect or the case which we would like to discuss is the motive of the said occurrence. Mazhar Hussasin (PW-8) stated that the motive behind the occurrence was that the accused Muhammad Imran appellant, suspected, illicit liaison of the deceased with his sister Mst. Kausar Bibi. This has proved to be a patent lie. Mazhar Hussain (PW-8) during cross-examination admitted as follows:- "About 5-6 years has lapsed when Mst. Kausar was (sic) died." When it is a fact that Mst. Kausar had already died prior to the occurrence and that too many years ago, then it is beyond reason that this occurrence would have been committed on suspicion of illicit relations. As the witnesses namely Mazhar Hussain (PW-8) and Shahid Hussain (PW-9) are father and son respectively and the deceased was son of Mazhar Hussain (PW-8) hence this statement has the impact of destroying the very foundation of the prosecution case. The said witnesses were using the motive so as to identify the culprit also. The above mentioned fact brought on record during the cross-examination of Mazhar Hussain (PW-8) that Mst. Kausar Bibi had already died many years prior to the occurrence casts aside any semblance of truthfulness with respect to the status of Mazhar Hussain (PW-8) and Shahid Hussain (PW-9) being truthful witnesses. 14. Another aspect of the case, which has cast a shadow of darkness on the case of the prosecution, is the answer made by Mazhar Hussain (PW-8) during his cross-examination. "I got registered this case against two accused. As it was right time, the sacks of wheat were also there. I considered the sacks as accused persons but when I got satisfied myself, I made my supplementary statement that there was only one accused." This statement of Mazhar Hussain (PW-8) during the cross-examination, requires no further comment as bare perusal of the same leads to the irresistible conclusion that the witnesses could not see anything at the crime scene. If it was so dark that they could not distinguish between the sack of wheat and a human being, then how could they have identified Muhammad Imran (appellant). Similarly the witness Mazhar Hussain (PW-8) admitted during the cross-examination that the other two witnesses namely Shahid Hussain (PW-9) and Nazar Hussain (given up PW) had also mentioned that two persons, were present at the place of occurrence, at the time of occurrence in their statements under section 161, Cr.P.C. These two witnesses namely Shahid Hussain (PW-9) and Nazar Hussain (given up PW) also fell into the same error brought about by the lack of light at the crime scene. We have also observed that, as it is evident, the occurrence took place at night time and there was no mention of any light source made by Mazhar Hussain (PW-8) and Shahid Hussain (PW-9) during the statements recorded by Bashir Ahmad SI (PW-11). When witnesses Mazhar Hussain (PW-8) and Shahid Hussain (PW-9) appeared before the learned trial court and got recorded their statements, even then they failed to mention any light source which could have been available at the place of occurrence at the time of occurrence allowing the witnesses to identify the assailant Bashir Ahmad SI (PW-11) during his investigation did not take into possession any article so as to prove that sufficient light was present at the place of occurrence at the time of occurrence for the witnesses to make a positive identity of the assailant. The prosecution failed to establish the fact of such availability of light source and in absence of their ability to do so we cannot presume the existence of such a light source. Reliance is placed on the case of Gulfam and another v. The State (2017 SCMR 1189) wherein the august Supreme Court of Pakistan observed as adder:- "Courts below had incorrectly presumed that as the occurrence. had taken place at a medical store, therefore, some electric light must be available at the spot." 15. We have also noticed that a per the oral statement (Exh.PG) Mazhar Hussain (PW-8) was not a permanent resident at the place of occurrence. During cross-examination, Mazhar Hussain (PW-8) stated that distance between his house and place of occurrence was about 3-4 kilometers and also stated that Shahid Hussain (PW-9) was residing with him at his house. The reason mentioned by Mazhar Hussain (PW-8) for his presence at the place of occurrence was that he was running an agency for the sale of wheat and cotton at the place of occurrence and was sleeping in the courtyard of the same. We have observed that during the investigation of the case the Investigating Officer Bashir Ahmad SI (PW-11), at the time of his visit at the spot, did not take into possession any cot being used by the above mentioned PWs, Only one cot (Exh.P3) along with pillow (Exh.P4) was taken into possession through recovery memo. (Exh.PH) by Bashir Ahmad SI (PW-11) which was under the use of Zahid Hussain (deceased). This failure of Bashir Ahmad SI (PW-11) to procure the cots under the use of the witnesses also speaks volumes about their presence at the crime scene. Bashir Ahmad, SI (PW-11) also failed to collect any documentary evidence in order to prove that an agency was established at the crime scene. Bashir Ahmad SI (PW-11) also failed to take into possession any wheat sacks which were statedly available at the crime scene. A chance witness, in legal sense, is the one who claims to be present at the place of occurrence at the time of occurrence though his presence there was a sheer chance as in ordinary course of business. As the witnesses have failed to prove the reasons for their presence at the scene of occurrence hence we have rejected them. 16. We have further noticed that Mazhar Hussain (PW-8) made a dishonest improvement to his earlier statement. The earlier statement (Exh.PG) recorded of Mazhar Hussain (PW-8) contained the allegations that the fire of Zahid Hussain (appellant) hit the right side of the temporal region whereas while appearing, as a witness he did not mention any side where the fire hit the deceased. However, Mazhar Hussain (PW-8) during cross-examination made the following statement:-- "I got recorded in my complaint that my deceased son sustained injury on right side of temporal region however the police did write that my son sustained injury on left side of temporal region. The statement I got recorded before this court is correct. If there is any contradiction in the contents of complaint and in my statement before this court, the same is result of mistake on the part of Investigating Officer. I got registered this case against two accused." This again shows that Mazhar Hussain (PW-8) did not see the occurrence as being claimed by him. Shahid Hussain (PW-9) though was not cross-examined and the right of cross-examination was closed, however, he too did not restrain himself from making the above mentioned improvement and did not mention any side where the alleged fire hit the deceased. We have perused the statement of Dr. Abdul Salam (PW-I) who conducted the postmortem examination of the deceased Zahid Hussain and issued the postmortem report (Exh.PB). The entry wound, as observed by him, was on the left side of the head and not on the right. The improvements, mentioned above, to the statement of the witnesses were not only dishonest but proved to be incorrect also. Reliance is placed on the case of Muhammad Sharifan Bibi v. Muhammad Yasin and others (2012 SCMR 82) wherein the august Supreme Court of Pakistan held that the ocular account could not be corroborated by medical evidence as it was found to be in conflict with each other inasmuch as in their statements before the police under section 161, Cr.P.C., the alleged eye-witnesses stated that the victim was fixed upon at his neck but during trial they improved their version and said that it as below the neck. 17. We have also noted that despite the fact that the matter was reported to the police at 03.15 a.m., when the oral statement (Exh.PG) of Mazhar Hussain (PW-8) was reduced into writing, the postmortem examination on the person of the deceased was conducted after a delay of about five hours from the time of registration of FIR (Exh.PC) at 08.00 a.m. Dr. Abdul Salam (PW-1) has given the probable duration of time between death and post mortem as 4 to 8 hours. It has been repeatedly held by the august Supreme Court of Pakistan that such delay is reflective of absence of witnesses and the sole purpose of causing such delay is to procure the…
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